Hank Minor: Embrace the nuclear option

Tuesday, October 2, 2018 - 5:41pm

Embrace the nuclear option

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Any contender for the Democratic presidential nomination in 2020 should support packing the Supreme Court — that is, voting to expand the maximum number of seats so the president can confirm a liberal majority.

Yes, moderate liberals will wring their hands and grieve yet again the death of civility, but they’ll forget with time. Especially on the national level, where news outlets breathlessly report news with unsettling dramatic flair, the average liberal is frustratingly gullible. President George W. Bush gives Michelle Obama a piece of hard candy and suddenly he’s a sweet old man who likes to paint, not a two-term president who initiated war in Iraq and systemic torture at “black site” prisons.

That’s beside the point, though. There are risks to nominating extreme candidates, but presidential elections have functioned in a fundamentally different way from House of Representatives and Senate elections for some time now. Throughout 2015 and the first months of 2016, Republican commentators bleated at their party's primary voters to choose someone other than Donald Trump or Ted Cruz, both personally repellant extremists. A few months later, many were on the Trump train — by summer, those who wavered at all in their support for the nominee were outcasts. Moderates and party-leaning centrists always bend the knee, if you manage to beat them first and especially if your candidate is an inspirational, larger-than-life figure like Barack Obama or Trump.

#TheResistance has been kindling liberal outrage against Trump since Nov. 9, 2016, and the Democratic Party’s 2020 strategy is almost guaranteed to be focused on many people’s personal disgust with the president. Packing the Supreme Court would just be another manifestation of this strategy; I don’t see why it has to be considered especially shocking or extreme. If Trump (and his Supreme Court nominees, whoever they end up being) are as dangerous as we’re told day in and day out, it seems reasonable to me that the countermeasures be proportional.

The virtue of bipartisanship is a vestige of the mid-20th century, when the Democratic Party maintained unbroken control over the House for 40 years. A substantial portion of their members were Southern conservatives; reaching across the aisle was necessary for Congress to accomplish anything, given that both parties (but especially the Democratic Party) were fractured ideologically by geography and race. The sorting (and subsequent decline of bipartisanship) that has occurred in recent years isn’t an affirmation or violation of some abstract moral code, it’s just a political phenomenon.

A serious issue is that Trump is certain to confirm a five-justice majority on the court, and given the health of some liberal justices – Ginsburg, Sotomayor, Breyer – he might further increase that majority. Any Democratic president —whether they win in 2020, 2024 or later—doesn’t just need power in the House and Senate, they need their legislation to survive legal challenges.

The Affordable Care Act nearly died in the Supreme Court, and it was just a watered-down version of a Heritage Foundation plan supported by former Presidential nominee Mitt Romney. If a Democratic government were to implement some kind of public option or Medicare expansion, what’s to stop the solidly conservative Supreme Court from striking it down? If a Democratic government tried to repair voting rights, implement countermeasures against gerrymandering or revitalize worker’s rights, what’s to stop five conservatives on the court from neutralizing it?

One suggested difficulty with breaking the norms that keep the current number of Supreme Court seats at nine — though there have been greater and fewer in the past — is that when the Republican Party takes power again, it will likewise pack the court with party loyalists. One can see how this easily spirals so the Supreme Court shrugs off its last threads of partisan neutrality and becomes an openly political institution.

This strikes me as useful, though — part of the appeal of court packing is that it would accelerate the collapse and reform of an institution already in the first stages of decay. The delay of former Supreme Court nominee Merrick Garland’s confirmation was one violation; the removal of the Senate filibuster on Supreme Court nominees was another. Norms about the Supreme Court are already falling apart to the benefit of Republicans — in steadfastly maintaining faith, Democrats welcome their own defeat.

Mistakes have already been made — Justices Ruth Bader Ginsburg and Stephen Breyer should have both stepped aside for younger replacements in 2013, when Democrats still held the Senate. Lifetime appointment, though, encourages every justice to cling to his or her seat for as long as possible, and now concerned liberals have to engage in macabre speculation about whether Ginsburg can stave off death long enough for a Democrat to win the presidency in 2020.

The Supreme Court as it exists is unwieldy, arcane and filled with negative incentives — the start of a solution is to pack the courts. When Democrats venerate tradition and trust in the unwillingness of their opponents to violate norms, they don’t just risk losing a partisan game, they risk the overturn of policy protecting basic American freedoms. Any Democratic candidate for president should be willing to endorse a strategy of packing the court.

Hank Minor can be reached at hminor@umich.edu.