Below is my column in The Hill newspaper on the call for a litmus test for Supreme Court nominees and the packing of the Supreme Court with up to six new members to secure a majority. Both ideas were expressly denounced by Ruth Bader Ginsburg. Indeed, to achieve these objectives, the Democratic members will have to tear down the very rule established by Ginsburg in her confirmation hearing.
The refusal of Vice President Joe Biden to answer repeated questions about his position on the packing of the Supreme Court is deeply troubling. This is a proposal raised not by the Republicans but his own running mate Kamala Harris and leading Democrats. It would destroy the Supreme Court and voters should know if Biden would consider such an irresponsible act, particularly when he previously denounced it. The refusal to stand against the proposal is a fundamental failure of leadership. Rather than confront the most extreme elements of his party, Biden has chosen to remain silent on a major issue in this election. Frankly, that is not the Biden that many of us knew from his time in the Senate. He should take a stand against this pernicious idea and defend the institution, as he did in 2019.
Those arguing for proposal are not subtle. University of Chicago Law Professor Brian Leiter declared total license due to the failure to vote on Merrick Garland and now the effort to vote on Amy Coney Barrett: “If they pack the court, the Democrats would be crazy not to do their own court packing.” However, those are vacancies where the Senate used its constitutional power to withhold or hold a vote. I called for a vote on Garland but there was nothing unconstitutional in the withholding of the vote. Indeed, Ginsburg herself insisted that vacancies should be filled even in an election year in 2016. The fact is that, even if the Senate voted and rejected Garland, many of the same voices would still be supporting a court packing scheme. The packing scheme would change the Court for the sole purpose of securing an ideological majority. It would create a new and fundamentally flawed Court — a sad reflection of our age of rage.
When asked about calls to expand the Court, Ginsburg said it would destroy the continuity and cohesion of the Court. She added to NPR last year: “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’” The greatest insult is that these individuals are using Ginsburg’s death to change the Court in the very ways that she opposed in her life.
Here is the prior column:
Subtlety has been a stranger to our politics. This is the age of rage, and there is little room for nuance. That is evident in the intense debate over the nomination of Amy Coney Barrett to the Supreme Court. Democrats have dispensed with any pretense in their calls to block her and pack the bench with more justices. What they want is a Supreme Court with litmus test confirmations where Senate votes are conditioned on pledges.
Several Democrats have said they will ask Barrett about her view of any challenge to Roe versus Wade, and cases like the pending challenge to the Affordable Care Act. Indeed, she faced such demands from Richard Blumenthal and others for her confirmation as a federal appellate judge, and several Democrats voted against her since she did not promise to uphold Roe. In their campaigns last year, Kirsten Gillibrand and Bernie Sanders pledged to nominate only those who would uphold Roe.
Hillary Clinton lashed out at Barrett and nominees of President Trump for failing to support particular cases. She has declared, “A number of them would not even say they agreed with Brown versus Board of Education or with other precedents. It is not just a question of choice. It is a question of whether we are going to continue the move toward progress.” Most of the nominees have insisted, as a rule, that it is unethical to comment on cases or issues that might come before them, and that practice is known as the Ginsburg rule, for the very justice who Clinton praised as a model.
Ruth Bader Ginsburg believed it was wrong to demand assurances on how justices will vote. In her confirmation hearing in 1993, she refused to give the answer that Blumenthal, Gillibrand, Sanders, Clinton, and others now demand from her potential successor. In calling to protect the legacy of Ginsburg, these politicians have to first tear down the Ginsburg rule. They demand that Barrett and other nominees commit to supporting specified cases while pushing them to reverse other cases, such as Citizens United versus Federal Election Commission on campaign finance.
I have criticized the Ginsburg rule, which is used by nominees to refuse giving more than elusive statements on their judicial philosophy. It has reduced critical confirmation hearings to formulaic exercises with silent nominees and bloviating members of the Senate. Nominees must be able to talk about their judicial philosophy and the basis for individual rights, without demands to hear their positions on pending cases.
What politicians are advocating today, however, is a direct litmus test. Not only will they vote against a nominee who opposes a particular case, but they will do so for a nominee who does not expressly support a case. Even if a nominee like Barrett has a foundation in the law, it is how she will vote on certain controversial cases instead of her views that will matter.
Such conditional votes were rejected before the Ginsburg rule. Presidents since Ronald Reagan have pledged not to apply litmus tests. Past sessions of the Senate under the control of both Democrats and Republicans have maintained it is wrong to demand assurances on certain cases and claims. Indeed, many current members of the Senate supported Elena Kagan and Sonia Sotomayor in refusing to discuss their views on abortion.
Once these demands are made for cases like Roe, other groups will call for similar litmus tests for cases such as Obergefell versus Hodges, which supports same sex marriage, or cases in favor of environmental or other rights. Conversely, while politicians speak of preserving the precedents, they have pressed nominees to commit to reversing cases like Citizens United. If forced to give such assurances in confirmation hearings, then justices could face later claims of perjury if they changed their minds or voted differently on the Supreme Court. Nominations would become a series of pledges of positions to secure votes in the Senate.
For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be some kind of litmus test. Democrats have pledged to add new justices to ensure a bench that would vote on cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes such as voting to uphold Roe. This rationale is reaching truly dystopian levels, with the former White House counsel John Dean insisting that, by creating a new ideological majority, Democrats would remove politics from the Supreme Court.
Litmus tests and the idea to pack the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. These moves would obliterate an institution that has over history preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will surely evaporate if Democrats conduct litmus tests or pack the bench.
Joe Biden has been asked if he supports these calls to pack the Supreme Court and has refused to answer, despite denouncing such plans in the past. In the debate, when Chris Wallace pressed the issue, Biden declared, “Whatever position I take on that, it will become the issue, and the issue is the people should speak.” Many Americans would not vote for a candidate who considers, let alone supports, a scheme to pack the bench with more justices. Yet Biden refuses to give his position on an important issue raised by his own running mate and other leading Democrats this year.
Ginsburg articulated her rule because she saw litmus tests as unethical pledges. At the time, Democrats like Howell Heflin praised her position. Today, Democrats want to pack the Supreme Court and seek assurances from nominees on cases like Roe, which are two ideas staunchly opposed by Ginsburg. What is left behind is not principle but raw power, and both the Supreme Court and the country will be the worse for it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.