A long time ago, before the inauguration, before the armed uprising, before the court election challenges, before the election, there was an incident that enraged half the country. That incident was the packing of the Supreme Court of the United States (SCOTUS) by Senate Republicans, who rammed through the confirmation of Amy Coney Barrett.
What particularly incensed people was that the Senate, under Uber-Leader Mitch McConnell had prevented the confirmation of President Barack Obama’s nomination, Merrick Garland. Garland was eminently qualified. At the time of his nomination, he had more federal judicial experience than any other Supreme Court nominee in history. (Per Wikipedia.)
Obama nominated Garland when Supreme Court Justice Antonin Scalia died, in February 2016. Republican refusal to seat a justice while Obama continued in office left the vacancy for a Trump nominee, and in January 2017 Trump nominated Neil Gorsuch, who was confirmed in April 2017. There was no coherent reason to prevent the confirmation of Garland. His denial of confirmation was solely the result of a partisan decision by Senate Republicans to refuse him a confirmation vote.
Republicans claimed it was too close to the presidential election, and the public should weigh in on the decision. This is illogical, since many other factors outweigh the nomination in the presidential election. So the outcome of the election told us nothing about the preferences of the public for the new justice. Also, the nomination was over eight months before the election, and the final party presidential nominees hadn’t even been picked.
This left Donald Trump with three nominations, instead of two, skewing the Court even more toward Republican picks. Only three of the nine justices currently serving have been nominated by Democratic presidents, and the six appointed by Republican presidents generally have extremely conservative views. In addition, the decisions of the Court have backed corporations over the public in almost all cases.
During the confirmation of Trump’s picks, the Senate did not represent the majority of the voters. For example, in the recent 116th Senate, from January 2019 to January 2021, Republicans held 53 seats, but only represented a little over 48% of the national population. The 115th Senate had 51 Republicans, who represented about 44.5% of the population.
Just for clarity, here are the justices, the presidents that nominated them, and when:
Clarence Thomas nominated by George H.W. Bush in October 1991
Stephen Breyer nominated by Bill Clinton in July 1994
John Roberts nominated by George W. Bush in September 2005
Samuel Alito nominated by George W. Bush in January 2006
Sonia Sotomayor nominated by Barack Obama in August 2009
Elena Kagan nominated by Barack Obama in August 2010
Neil Gorsuch nominated by Donald Trump in April 2017
Brett Kavanaugh nominated by Donald Trump in October 2018
Amy Coney Barrett nominated by Donald Trump in October 2020
Not only were the Trump picks confirmed by Senates that didn’t represent the national majority, Donald Trump did not represent the majority of the voters, either.
It’s true that George W. Bush also did not win the majority of the popular vote when he was first elected in 2000. But Roberts and Alito were nominated and confirmed in Bush’s second term, after he won re-election with a majority of the popular vote. This is not exactly comforting, because it is unlikely he would have won that election if he hadn’t been the incumbent.
There’s no such question about the three Trump picks, however, because Trump was installed without winning the popular vote in 2016 against Hillary Clinton and was defeated decisively in the popular vote in 2020 by Joe Biden. While Senate Democrats did not fight Trump’s assent to the White House, there are still questions about whether he won the requisite states. In all of the close states, the exit polls show Clinton the winner, but the official tally went to Trump. In addition, Trump has never had an approval rating above 50%, and he had a net negative approval rating through almost all of his term (except in the first few months, when it was positive, but below 50%). Donald Trump was never a legitimate President, and there are significant questions whether he was even a legal one.
So, for the Trump picks, neither the person nominating these three justices nor the Senate that voted to confirm them represented the majority of the country. They have no moral authority to serve. Any opinion they render is a minority opinion. (Technically, three Democrats voted for Gorsuch—Heidi Heitkamp, Joe Manchin, and Joe Donnelly—so his confirmation itself may have represented a majority of voters, but neither Kavanaugh nor Coney Barrett got any Democratic votes for confirmation.)
This leaves the SCOTUS with virtually no claim on legitimacy, which has led to complaints that Republicans have so gamed the system that Democrats should pack the Court (or threaten to pack it), the way Franklyn Roosevelt threatened to pack it in the 1930s. Various proposals have suggested raising the number of justices from nine to fifteen or more.
There are problems with any proposal to increase the number of justices. For one thing, it would need to pass through Congress. Even though Democrats now control both houses, the margin in the Senate is razor thin, with a number of queazy centrists who are unlikely to go for any radical reform. Another problem is that even if we added justices, the new justices would probably not balance the Court. The Republican-appointed justices tend to be very conservative. The latest, Coney Barrett, seems to have been picked especially with deep conservative views on issues like abortion, which would be difficult to balance. And we would be dependent on President Biden and Democrats to pick nominees, who would almost certainly be corporatists like them.
A better way to address this problem is to unpack the Court. We should demand the resignations of the three justices picked by Trump. Trump’s presidency was never legitimate, so none of his picks are.
Justices can’t be removed, except through the impeachment process, and that would never fly in a Senate where Democrats don’t have a two-thirds majority. It’s also unethical to impeach officials other than for actual crimes or misdemeanors by those officials. But any justice can resign at any time for any reason, so inducing these justices to leave would preserve legal procedures and clear the way for the Court to be restocked with justices that actually have the legitimacy of broad support in the Senate and nomination by a President elected with the majority of the popular vote.
I know people will object that there’s no path to getting these justices to resign. After all, what’s their incentive? I will cover that in the next two articles, but for now let’s consider the option of just asking.
Many people do things simply because they are asked. In this case, there would be a very clear reward for the last three justices to resign. Their resignations would allow our government to restore legitimacy to the Court. It wouldn’t fix the problem of all the judges installed in lesser courts during the Trump Administration, but if the SCOTUS is restored, any problems caused by those appointments will eventually be sorted out by the appeals process.
Justices who leave voluntarily would retain their status as “retired” from the Court, with all the privileges and status implied. So, leaving for the good of the country would be a suitable reward for resigning.
Let’s ask them. That is, President Biden should ask them. He should meet with them on Monday, if possible and ask for their resignations within a couple days (that is, by noon Wednesday). He should then meet with Chief Justice Roberts and elicit his support. Justice Roberts is known to be concerned about the legitimacy of the Court. He may, in fact, be helpful in facilitating these resignations.
Presuming these justices resign, their seats should be filled with legitimate appointments. A way to get this is to ask each party for a list of people who could be confirmed with at least 60 votes. This ensures the replacements would represent a majority of the voters. Since there are three seats, he might want to pick one replacement from the Republican list and two from the Democratic list. For this reason, he should ask each party for a list of at least 10 women who could pass confirmation with at least 60 votes each, and pick the best candidates from those lists.
This procedure is not intended to punish the Republicans. They might feel punished, and they should feel guilty. The point is to restore legitimacy to the Court and to our legal system. That won’t happen as long as we have justices who bypassed the mechanisms of democracy to reach their positions. At the same time, unpacking the Court should serve as a warning to politicians and political parties who think they can just get what they want through loopholes in the rules while completely ignoring the good of the people and the longterm legitimacy of our government.
Tomorrow, I’ll address those people who claim Biden has no power to get these justices to resign. Until then, let’s consider what would happen if they were just good, patriotic Americans.
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If Donald Trump is convicted by the Senate, should his three picks for the Supreme Court (Gorsuch, Kavanaugh, and Coney Barrett) resign?
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If Donald Trump is convicted by the Senate, should his three picks for the Supreme Court (Gorsuch, Kavanaugh, and Coney Barrett) resign?Yes, and they should be forced out if necessary.6 votesYes, but it’s on their conscience to resign.1 voteMaybe0%0 votesNo2 votesOther (see my comment)0%0 votesDaily Kos