How radical has Mitch McConnell’s strategy of court-packing been? So much so that Democratic candidates for president are seriously considering options for dealing with it when they get to the Oval Office.
Sens. Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand have all told Politico that they would be willing to consider proposals to add more seats to the Supreme Court. “We are on the verge of a crisis of confidence in the Supreme Court,” Harris told reporters Burgess Everett and Marianne Levine. “We have to take this challenge head on, and everything is on the table to do that.” The fact that these three are all current senators could be key in bringing a potentially Democratic-majority Senate to the same conclusion.
That all three women are considering an “equally bruising” response to McConnell’s machinations is important—they need to be prepared to be as creative and as ruthless as he’s been to restore the court. Not for retaliation, as Warren says, but “it’s about depoliticizing the Supreme Court. […] It’s a conversation that’s worth having.” Gillibrand added that the Senate should work to immediately make the Supreme Court justices subject to the code of ethics the rest of the federal judiciary has to abide by. The seat stolen by McConnell from President Obama for Trump and now occupied by Neil Gorsuch and the farce of a vetting and hearing process that led to Brett Kavanaugh’s confirmation add to the delegitimization of the court. Impeaching them as the illegitimate justices they are would be nearly impossible—it would take 67 votes. But diluting their power by adding additional seats would be possible. Another possibility under consideration is setting term limits for justices.
It’s a conversation many of the candidates are willing to engage in, including South Bend, Indiana, Mayor Pete Buttigieg and former Rep. Beto O’Rourke, who’ve suggested they’d also seriously consider plans to expand the Supreme Court. Not all Democratic hopefuls, though. Cory Booker and Amy Klobuchar are less enthusiastic. “I’m open to these kind of conversations, but I really caution people about doing things that become a tit for tat throughout history,” says Booker, missing the point that this is not retaliation; it’s saving the court. “You always want to look at all ideas,” Klobuchar said, “but I think right now the most reasonable thing is to win the elections and to try to stop the bad judges.” Reasonable, maybe, if Trump wasn’t going to be putting his stamp on as much as 40 percent of the federal courts with extremist ideologues who are young enough to be there to shape it for the next 30 years.
The last thing this is about is retaliation. This is about the agenda of the next Democratic president and Congress having the protection of the courts behind it.