Right now there is a 5-4 conservative majority on the Supreme Court — a majority that will soon eviscerate abortion rights, is busily attacking collective bargaining, and will validate every Republican effort to suppress votes and undermine democracy — because in 2016, when Justice Antonin Scalia died, Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow President Barack Obama to fill the vacant seat.
Democrats still need to decide what to do about it, and McConnell is making it crystal clear that changing the size of the court the moment they have the chance is the only way to restore something faintly resembling democratic representation and majority rule.
You’ll recall that when McConnell refused to allow Merrick Garland’s nomination to the court to receive even a hearing, let alone a vote, he and other Republicans pretended that there was actually a principle involved, one they had just invented, that any Supreme Court seat that becomes vacant in the final year of a president’s term should remain open until after the following election. The voters, they insisted, must have a chance to weigh in, despite the fact that the voters had weighed in when they reelected Obama in 2012.
As asinine as this idea was and despite the transparent bad faith in which it was offered, McConnell knew that the norms of news reporting would prevent journalists from describing either the stonewall or its preposterous justification accurately. Instead, they would dutifully repeat it over and over, and much of the public would see the whole thing as just one more partisan squabble.
“Objective” news reports would not say what everyone knew: If another Supreme Court justice retired or died during the last year of a Republican president’s term, Republicans would immediately discard the principle of no new justices in a president’s final year that they lied about believing in. And now, McConnell has confirmed it:
McConnell responded to the hypothetical question at a Chamber of Commerce luncheon in Paducah, Ky.
“Should a Supreme Court justice die next year, what will your position be on filling that spot?” an attendee asked, setting up a scenario that would mirror 2016, when Justice Antonin Scalia died suddenly in February.
“Oh, we’d fill it,” McConnell said with a wry, tight-lipped smile.
In fact, it was less a tight-lipped smile than a smirk. (You can see it in the video above.) And that smirk — along with the laughter that followed — tells you everything you need to know.
Just to be clear, this is not a “reversal” on McConnell’s part, as some headlines have described it, because he never had any other real position other than this one: There should be one set of rules when there’s a Democrat in the White House, and another when there’s a Republican.
After McConnell’s remarks became public, Senate Minority leader Charles E. Schumer tweeted that McConnell is a hypocrite and said, “Anyone who believes he’d ever allow confirmation of a Dem President’s nominee for SCOTUS is fooling themselves.” Schumer is almost certainly right: If a Democrat wins the White House next year but Republicans hold the Senate, McConnell will likely refuse to allow that president to fill any Supreme Court vacancies, whether in the first, second, third or fourth year of their terms.
He’ll invent some new and equally ridiculous justification — never in our history has a president been allowed to fill a Supreme Court seat that came open on a Thursday in July when the temperature in Washington was 82 degrees Fahrenheit! — which all Republicans will parrot as though they actually believe it.
Even now, the reason conservatives have that 5-4 majority is that Republicans control the Senate despite the fact that millions more Americans voted for Democrats to represent them there, and McConnell used that control to allow a president who sits in the Oval Office despite the fact that 3 million more Americans voted for his opponent to fill a seat that was held open for him in the most egregious and despicable violation of democratic norms we’ve seen in our lifetimes.
How any Democrat could believe that no action should be taken to rectify this state of affairs is simply incomprehensible. The only question is what precisely should be done about it.
The most obvious answer is what is usually referred to as “court-packing” but might more accurately be called rebalancing the Supreme Court. After Scalia died, Garland should have been seated, which would have given liberals a 5-4 majority. Therefore, to rebalance the court, two seats should be added and filled by the next president, increasing the size of the court from 9 to 11 justices and giving liberals a 6-5 majority.
But oh! some will cry. We can’t change the size of the court! We haven’t done that since 1869! That is false. The size of the court was changed twice in the past three years. Republicans reduced the number of justices from nine to eight in 2016, then in 2017 increased the size back to nine.
As for the objection that if Democrats change the number of justices, Republicans will do the same the next time they have the chance and we’ll be caught in an endless tit-for-tat, that might happen. But at this point, what’s the alternative?