The Washington PostDemocracy Dies in Darkness

Opinion How to fix the Supreme Court without packing it

When it comes to replacing Justice Anthony M. Kennedy, columnist Ruth Marcus has some unsolicited advice for President Donald Trump and Republicans. (Video: Adriana Usero, Gillian Brockell/The Washington Post)

Anticipating the confirmation of President Trump’s second Supreme Court nominee, some of the president’s critics have vowed to add seats to the Supreme Court under a future Democratic administration to counteract the shenanigans that deprived even a confirmation hearing, let alone a vote, for Obama nominee Merrick Garland. But there are practical and philosophical objections to “packing the court,” and there are better alternatives to try to undo the escalating partisanship that now accompanies every Supreme Court nominee.

The case against court-packing is persuasive. Libertarian Ilya Somin argues:

I fully recognize that many Democrats regard court-packing as justified retaliation for the GOP’s “theft” of the Supreme Court seat that went to Neil Gorsuch as a result of the Republican-controlled Senate’s refusal to hold hearings and vote on Barack Obama nominee Merrick Garland. Republicans, in turn, argue that their treatment of Garland was justified by past Democratic misdeeds in the judicial nomination process (including refusal to hold hearings for a number of prominent GOP circuit court nominees), and that the Democrats themselves had signaled they would refuse to consider a GOP nominee in circumstances similar to those surrounding the Garland appointment. The truth is that, for a long time, both parties have shamelessly violated a variety of norms surrounding judicial nominations almost any time it seemed like they might gain an advantage to doing so. And both are equally shameless in shifting back and forth on procedural issues whenever the political winds dictate. The latest example is the contrast between GOP Senate leader Mitch McConnell’s insistence, in 2016, that the then-open Supreme Court seat should not be filled until after the November election, and his current claims that the present vacancy must be filled quickly, and certainly before the GOP might potentially lose its Senate majority in this fall’s election.
But whatever we might think about the history of these shenanigans, court-packing is qualitatively different from any of them. Holding up nominees (as the GOP did with Garland), filibustering them (as the Democrats did with several Bush nominees, and as many — including Barack Obama — tried to do with Justice Samuel Alito), or “slow walking” them through the nomination process (many examples from both parties), are all potentially problematic. But all still leave the judiciary intact as a serious check on the power of the other branches of government. Court-packing, by contrast, would not. Once the norm against it is broken, both parties will resort to it whenever they have simultaneous control over Congress and the presidency, thereby foreclosing any significant judicial review of their policies.

On a more practical level, it is difficult to see how it would be possible to add seats to the Supreme Court. The Judiciary Act of 1869 set the number of Supreme Court justices at nine. For Democrats to change that number, it would require control of the White House, the House and a filibuster-proof majority in the Senate (unless we are talking about taking away the filibuster as well). In other words, a lot of the problems Democrats anticipate — erosion of the right to privacy, voting rights, etc. — could more easily be addressed legislatively if they’d start winning elections at both the state and federal level. Winning control of Congress and the presidency would make court-packing unnecessary, in large part.

Let me suggest several alternatives, if the goal is to “reset” the Supreme Court nominating process to resemble something other than hand-to-hand warfare in which each Senate majority leader contemplates something more outrageous than his predecessor.

Follow Jennifer Rubin's opinionsFollow

First, let’s actually see how this nomination plays out — who gets nominated, who is confirmed and how that justice behaves on the court. We haven’t had another Justice David Souter (a closet liberal that President George H.W. Bush believed was a conservative when Souter was nominated in 1990), nor have we seen how Chief Justice John G. Roberts Jr. reacts with a fifth conservative justice. If we’ve learned anything during this presidency, it is that we have no idea how things will turn out.

Second, as difficult as it might be, it is worth contemplating a term limit for Supreme Court justices. In its extraordinary “Roadmap for Renewal: A Legislative Blueprint for Protecting Our Democracy,” the nonpartisan Protect Democracy recommends, “Enacting a resolution and seeking nominee pledges to move toward a system of fixed eighteen-year terms for Supreme Court justices — as proposed by experts on the left and the right — to avoid situations where consideration of nominees is delayed, retirements are timed, or specific nominees are selected to allow long-term ideological control of the Court.”

In The Post, Orin Kerr explains:

Imagine each Justice was appointed to an 18-year term instead for life. With nine Justices, you would have a vacancy every two years. Every Presidential election would mean two vacancies at stake. A new President taking office in January would know that the first vacancy would come up a few months later in July, when the Supreme Court finished the work of its annual term. The second vacancy would come exactly two years later. Justices from previous times would cycle off the Court at predictable times, and they would be replaced by new Justices reflecting the current President and Senate. The ideological makeup of the Supreme Court as a whole would tend to reflect the President and the Senate at two-year intervals going back over the previous 18 years.

This would take a constitutional amendment, but we’ve enacted far more dramatic changes (e.g., direct election of senators) in the past. By the way, Democrats better start winning presidential elections if they want to go down this path.

Third, a group of Republican senators — Susan Collins (Maine), Lisa Murkowski (Alaska), Jeff Flake (Ariz.), Bob Corker (Tenn.) — have unusual leverage in the current court battle. If they are to confirm any nominee Trump might come up with, why not extract a price? They could insist that we go back to a 60-vote threshold for Supreme Court nominees, and that both sides agree to move forward on any Supreme Court nominee for a seat vacated more than 90 days before an election.

The new rules could commence in 2021 — when neither side knows which party will control the Senate or the White House. In other words, instead of playing the blame game as to how we got here, just go back to the way things were when Justices Alito, Roberts, Ruth Bader Ginsburg, etc., were all nominated and confirmed. Polls show voters overwhelmingly want to use a 60-vote minimum — one that forces a nomination of someone with widespread or at least wider-spread acceptance.

There may be other ideas floating around, but beyond the current Supreme Court fight, it is difficult to argue that the nomination system doesn’t need repair. The only question is whether there is the will to carry it out.

Read more:

How a Trump Supreme Court nominee persuades the Senate

Here’s how we’ll recover from Trump

Trump’s racist views have not gone unnoticed

The White House tries to extend its cruel crusade against migrant families

I left the Republican Party. Now I want Democrats to take over.