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.
Biden has just insulted every American I am a dem. But do not want to live the four years being insulted by him and Harris
Do you want another four years being insulted by Trump?
Don’t you think there are more important issues, like Trump’s mishandling of the pandemic? He didn’t protect the country, and he didn’t protect himself.
Ha, Ha, Anonymous. It seems you are unable to retain anything John told you about the pandemic. You made a fool of yourself and you are about to do so again.
John is a fool, and so are you, Allan. John hadn’t even read the reports that he was relying on, so he didn’t know what a fool he was making of himself. You clearly didn’t read them either.
Ha, Ha, Anonymous your making excuses fro not being able to understand how respiratory viruses work. That is OK. No one thinks you know much of anything.
Seriously used to like and follow this blog. It is a total sewer now. It mirrors the perfect destruction by current political insanity by those in power. The only Court packing currently on the table is being done by the Hypocrisy of the Repuglicans. Democrats will be put in the position of having to work within the un-Constitutional ‘make up the rules as we go’ boundaries or find a way to ballast the Ship. Here’s a thought to ponder….the Supreme Court was created at a time that 9 Judges could actually reflect and respond to the needs of a population. The current estimated population of the U.S. is 330,052,960. It is more diverse, more inclusive (supposedly) and less represented than ever. Nine is NOT ENOUGH.
Becka, maybe we need more than 9 justices, maybe not. That requires serious discussion, however, if more than 9 is deemed necessary it should wait until the next Presidential election before being instituted and when that is done it should be done slowly 1, max 2 at a time.
You can call either party hypocrites, but to not be one yourself you should advocate that the Constitution be followed. As far as the selection of judges we have to rely on the Constitution. Packing the court is a bad idea and destructive to the Republic. That is why court packing wasn’t approved under FDR and that included Democrats.
Thank you for trying in this post to make the blog less of a sewer.
Here’s a thought to ponder….the Supreme Court was created at a time that 9 Judges could actually reflect and respond to the needs of a population.
Pondered and rejected. The House is there for that purpose. The Senate is there for the States. The Court is there to decide the constitutionality of issues that come before them and not stick their finger in the air to see which way the social wind is blowing. Damn.
The republicans are acting within the constitution. You are not obligated to like that.
Democrats are also free to “stack the court” or otherwise change the rules of the Senate if they gain control.
All of that is constitutional
If you did not like the conduct of Republicans regarding Merit Garland – you were free to vote accordingly.
If you are not happy with ACB’s confirmation – Vote accordingly.
Biden should be open about whether he will “stack the court” if elected. We should not have to wait until after the election to find out.
He is not obligated to tell us. Nor is he obligated to share his potential court appointments.
But unlike his tax returns it is information that is relevant to voters.
Trump and Republicans were open about everything they have done.
Republicans abided by fillibuster rules for judges until Democrats eliminated those rules.
McConnell and others warned they would come to regret it. And you have.
Democrats are planning to stack the court and eliminate the fillibuster entirely if returned to power.
I wish they would be more open about that – so we could vote accordingly.
With respect to Garland. There are myriads of other instances of presidents failing to get confirmation of appointments when the other party controlled the senate in election years.
With respect to ACB – there are myriads of other instances of predidents getting confirmations when their party controlled the senate in an election year.
This is politics – and you can vote on it.
There are no past instances of court stacking.
It is constitutional. but it is far further from institutional norms.
I would further note that there is a constitutional remedy for court packing and other democratic overreach.
A constitutional convention. Arguably enough states have already voted for one.
A constitutional convention is far from institutional norms. But it is a legitimate response to overreach.
Democrats should be deeply concerned by a constitutional convention. Far more states are majority republican.
In a constitutional convention – each state gets the same number of votes.
There is no requirement in a constitutional convention that the convention not take up anything they want.
They can rewrite the entire constitution. They can impose balanced budget amendments, or term limits. or myriads of ammendments that have been strongly favored by republicans – especially those that are popular.
Just a few posibilities.
Fix voting to a single day. Require in person voting. Require Voter ID, Require proof of citizenship to reguster to vote.
Balanced budget.
Line item veto.
Term Limits.
Fix the size of the supreme court.
Eliminate congressional delegation.
I can go on.
You are offended by Republican Supreme Court politics. I do not think you should be so converned about ACB.
Republicans have been trying to flip the court for decades. They have had a 5-4 advantage forever,
But they have been unable to get 5 reliable conservative votes. Regardless, this outcome was near certain, and should have happened long ago.
You are worried that it could be more consequential than the election itself.
ACB;s appointment COULD be more important than the 2020 election.
That MIGHT actually be a good thing.
We are supposed to change the constitution by amending it – not by SCOTUS changing the meaning of the constitution.
I am politically liberal – meaning I prize individual liberty. ACB is as big and possibly a bigger proponent of a strict read of the 4th amendment as RGB – that alone would be huge.
Regardless for the past almost century we have accomplished by legislation what should have been accomplished by constitutional amendement or by natural changes in society.
I find it both hillarious and terrifying that in the least racist nation in the world at the least racist moment in time we are rioting over racism as if it is a massively consequential problem. The left is disconnected from reality.
Behave rationally – instead of trying to force societal changes through government – work with people to change their values.
The Supreme court is not about Diversity and inclusion.
It is about the meaning of the constitution.
There is no need for more than 9 justices – in fact 7 or 5 or 3 are all sufficient.
One of your problems is that you are deluded about the purpose of govenrment.
Governemnt is to secure our rights.
It is not there to make us better people – we do that on our own and not through force.
Government is there solely to solve those problems that require the use of force.
That is what government is – FORCE.
The overwhelming majority of human problems do not require and do not benefit from the use of force.
I likely support most of the goals that you have. But I vigorously oppose your use of force to accomplish them.
It’s not the responsibility of the highest court in the land to “reflect and respond to” the population. It is their sole purpose to be the ultimate authority on federal law (and state law that has a point in federal law). They should help us live within that fabulous document crafted by our founders, the Constitution, and make certain that the executive and legislative branches do not overreach. Nine is effective. Nine is enough.
It is further irrelevant whether they or we think the constitution and law as written are correct.
The courts authority is to constrain the govenrment to the law and constitution as written.
It is OUR duty to change the constitution or the law in the event we do not like it.
One of the core problems with the left is that they will strive to get their way by any means necescary.
The left will change the law and constitution – by writing new law when they control congress, by ignoring the law or making it up as they go when they control the executive and by “interpretting” the law to means what they want when they control the courts.
There are many laws I do not like or agree with. I am not entitled to wish them out of existance.
I am obligated to obey them without regard to my personal feelings about them.
Even if I think they are unconstitutional – I am still stuck with them until SCOTUS does its job and invalidates them.
But for those on the left – tenuous control fo any aspect of government justifies forcing their ideology down evryone’s throat.
If you are going to defame me – back it up.
How is it you know what I have read ?
Though in this instance that is not actually the point.
You said that the stories I provided did not exist.
I provided more than a dozen links demonstrating they did.
If you say there are no books in the library.
Proving that wrong requires proving there are books in the library.
Whether I read all of them is my choice.
I did back it up. You said “The “Likely scenario” according to all the “experts” was 2-4M US deaths,” and you posted a bunch of links to news about the Los Alamos and Imperial College studies. I pointed out that the Los Alamos study indicated up to 4.4 million deaths in Hubei, not the US, and that the Imperial College model called 2.2 million US deaths possible but “unlikely.” You said that “Both studies said that absent draconian measures these were the predicted outcomes,” referring to “2-4M US deaths,” when the Los Alamos study wasn’t even about the US, and the Imperial college study didn’t predict 2.2 million deaths in the absence of draconian measures. They predicted 2.2 million deaths if everyone went on with life as normal and made no suppression or mitigation efforts.
I asked you whether you read the studies or only news reports about it, and you refused to answer. The reports contradict your claims about them and your refusal to say whether you’d read them tells me you didn’t.
Now you say “You said that the stories I provided did not exist.” To quote you: “Do not tell me what I have said – quote it or do not bother.” Are you going to play by your own rules and quote me?
No you did not back it up. You made a stupid snaky comment and you are not smart enough to let go.
I have already refuted this “likely” idiocy – as well as your “unlikely” idiocy,.
The dire projections were for the case were drastic action was not taken. And both projection stated that.
You have been called out on this ONCE already.
Go back and read the links.
Next, there is not a single Los Almost projection. Los Almos has been making projections since early February. You can find their current US projections if you wish.
BTW since you are fixated on Hubei – was the specific Los Almost projection regarding Hubei – one of MANY? Los Almost projections CORRECT ?
The projections of Experts are not credible – and you are incapable of admitting that – aparently not even to yourself.
“I asked you whether you read the studies or only news reports about it, and you refused to answer.”
Why are you owed an answer on anything. Regardless, your question is both irrelevant and was answered.
“The reports contradict your claims about them and your refusal to say whether you’d read them tells me you didn’t.”
Very bizzare logic. I made not claims about the dozen plus links I provided you – beyond that they were proof that your snarky remark was false – and they are.
“Are you going to play by your own rules and quote me?”
False state. I made no general rule.
I asked for quotes from you because you constantly misrepresent pretty much everything.
The price for misrepresenting things is that others expect a hugher standard from you in the future.
You are still fixated on this bizare concept that we are all equal in every way.
We do not have equal credit.
We do not have equal credibility
We do not have equal integrity.
Standards are not the same for each of us.
I have made no general rule requiring quotes
I have made a specific demand of you.
You constantly misrepresent my statements and those of others as well as facts.
Therefore i am entitled to be skeptical when you claim that I our someone else said something.
And you are doing a good job here of proving it.
i told YOU what i expected of YOU. I made no general rule.
My expections of you are caused by past misrepresentations – you have earned additional requirements.
I do not expect quotes from everyone – everyone does not have a reputaion for misrepresentation.
SOME people do.
We have been through this before.
There is no general rule for citations.
There is no general rule for proof.
The requirements are individual and based on past credibility and integrity.
As one example those people still selling the Collusion Delusion are subject to a very high standard of proof.
They have lied repeatedly and they are continuing to do so.
And because they have lied about a major issue they have lost the trust of decent people in everything.
Stupid people draw all sorts of conclusions. I don’t think more need be said.