Several 2020 Democrats have announced that they are open to — or fully support — adding several justices and changing the nomination process for the Supreme Court.
As Democratic presidential hopefuls make the rounds explaining how they plan to pick apart the legacy of President Donald Trump should they defeat him in the 2020 election, the courts are one area where Trump’s legacy might be locked in for a generation.
Trump’s success in placing nominees on the court is a huge problem for some Democrats.
Under the leadership of Senate Majority Leader Mitch McConnell (R-Ky.), Trump and the Republican-controlled Senate have pushed through dozens of judges. In just the two years Trump has been in office, he has chosen 20 percent of the U.S. Circuit Court judges.
In addition to his nominations on the U.S. Circuit Court, Trump has already placed two justices on the Supreme Court. After McConnell stonewalled former President Barack Obama’s pick, Merrick Garland, Trump nominated Justices Neil Gorsuch and Brett Kavanaugh to the courts to fill vacancies left by Justices Antonin Scalia and Anthony Kennedy, respectively.
Kavanaugh’s nomination proved to be one of the most divisive moments of Trump’s tenure, which is really saying something. Before Trump even made his pick, left-wing activists were announcing their opposition. It didn’t take long for Democratic leadership to follow suit. When uncorroborated accusations of sexual assault surfaced from Kavanaugh’s high school days, the hostility elevated.
Despite the controversy — and Democrats’ best efforts — Kavanaugh was confirmed.
With Trump having a lock on the courts for a generation and McConnell pulling the nuclear option to push judges through with just 51 votes in the Senate, it’s easy to understand why Democrats are looking for a loophole to loosen Trump’s grip on the judicial reigns of the country.
The solution for some Democrats: Court-packing and nomination process changes.
South Bend, Indiana, Mayor Pete Buttigieg was the first 2020 Democrat to explain his plan to address the issues he and other Democrats have with the Supreme Court.
During an interview on “Fox News Sunday” with Chris Wallace, Buttigieg explained his idea to add six additional justices to the Supreme Court.
Watch Buttigieg explain his Supreme Court plans:
.@PeteButtigieg on #SCOTUS: "What I think we need to do it some kind of structural reform that makes the court less political. We can't go on like this where every time there's a vacancy, there's this apocalyptic ideological battle." #FNS pic.twitter.com/nIwmuth4ob
— FoxNewsSunday (@FoxNewsSunday) March 17, 2019
“It’s not just about throwing [six more] justices on the court. What I think we need to do is some kind of structural reform that makes the court less political. We can’t go on like this where every time there’s a vacancy, there’s this apocalyptic ideological battle. So the idea — one idea — that I think is interesting is you have 15 members, but only 10 of them are appointed in the political fashion. Five of them can only be seated by a unanimous agreement of the other 10. There are other ideas that have been floated, too, about term limits or about rotating justices up from the appellate bench. I think we should have a national debate about what’s appropriate, especially within the framework of the Consitition.”
While the court-packing proposal by Buttigieg is not as strong as the one proposed by President Franklin D. Roosevelt in the 1930s, the president at the time that this policy change goes into effect would get to add a judge of their own. The remaining five would be picked by other judges.
Beyond the fact that this would greatly shift the checks and balances in favor of the judicial branch, it would also take a lot of say away from the people. At no point would those five justices be chosen by a person directly elected by the people, as they are now when justices must be picked by the president and confirmed by the Senate.
Many 2020 Democrats are on board.
So far, several 2020 Democrats are open to the idea. According to a report from Politico, Sens. Kamala Harris (D-Calif.), Kirsten Gillibrand (D-N.Y.), and Elizabeth Warren (D-Mass.) would all consider a proposal similar to Buttigieg’s, as would former Rep. Beto O’Rourke (D-Texas).
Many others hate the idea.
Several people have taken to Twitter to explain why they hate the idea of packing the courts to somehow make them less political. Many criticized the idea on a constitutional basis, while others just compared the hypothetical reaction to Trump if he were to attempt this change.
This is the Rubicon. Cross it, and the damage to the American republic as we have known it is irreparable. We've had cries of wolf before about threats to judicial independence & the rule of law. This wolf comes as a wolf. https://t.co/LAIyXv4HU4
— Dan McLaughlin (@baseballcrank) March 18, 2019
Liberals want to change the law and pack the courts with liberal judicial activists. The assault on our Constitution is never-ending. https://t.co/jkl54NXtRz
— Tom Fitton (@TomFitton) March 11, 2019
With these Democratic calls for court-packing, I wonder what stops @realDonaldTrump from nominating two more SCOTUS justices right now, with a Senate Republican majority happy to confirm? Democrats would all scream bloody murder and then this charade would be undercut.
— David Rutz (@DavidRutz) March 18, 2019
FDR eventually backed off his own threat to pack the court after public outcry, but SCOTUS began mostly upholding New Deal laws whereas before the court packing threat they were largely striking them down.
I hope our current SCOTUS has more steel in their spines. https://t.co/GfS1iOeViG
— Cam Edwards (@CamEdwards) March 18, 2019
Even potential 2020 Democratic candidate Sen. Michael Bennet (D-Colo.) “slammed his head on the table four times” when The Washington Post asked him about the potential changes to the Supreme Court.
While it isn’t yet clear if this is a policy that 2020 Democrats will take up in earnest, it is clear that several major Democrats haven’t taken the idea of court-packing off the table.