McConnell’s gambit further damaged the court’s already battered reputation for independence from partisan politics. Not that McConnell spends much time fretting about such matters. He just wanted the keep the seat empty until the election, in hopes that a Republican president could fill it.
Raising the stakes, then-President Barack Obama nominated a moderate judge well into his 60s, a man with plenty of friends in both parties, Merrick Garland. McConnell stood pat, taking his chances on the outcome of the 2016 election.
But for a relative handful of votes in three Great Lakes states, Hillary Clinton would have won the electoral college, and her nominee for that empty seat might have been a younger, more liberal thinker than Garland. Someone with a compelling biography who would win enough GOP senators to break McConnell’s grip — another Elena Kagan or Sonia Sotomayor. Republicans would have had years to lament that they let Garland go by.
Instead, McConnell raked in the chips. Trump filled the seat with a solid conservative and added another one in 2018. Today’s court is arguably the most conservative in at least 80 years.
I’ve reviewed this history as background for the heated discussions going on among Democrats about remaking the Supreme Court. The clarion of the left wing, the Nation magazine, features an essay by journalist Elie Mystal arguing that none of the Democratic agenda can be accomplished with the Supreme Court in its present state. “Not a single significant policy or initiative proposed by the candidates for the Democratic presidential nomination is likely to survive a Supreme Court review,” Mystal writes.
He unpacks a number of proposed “reforms” aimed at reversing the consequences of McConnell’s power play. Some would require a constitutional amendment. For example, limiting justices to a single 18-year term would violate Article III, Section 1 of the Constitution, which gives federal judges unlimited terms, provided they maintain “good behavior.”
Others could be enacted by Congress, should Democrats gain the White House, capture the Senate and hold on to the House of Representatives. One idea, promoted by the group Take Back the Court, would use the first two branches of government to bring the third branch to heel by dramatically expanding the number of justices from the current nine to as many as 19.
As a matter of law, this idea is plausible — if a bit far-fetched. The number of justices is not dictated by the Constitution. Congress has provided for as few as six justices and as many as 10 before settling on nine after the Civil War. However, the tradition of nine justices runs deep by now.
Franklin D. Roosevelt would have liked the folks at Take Back the Court. During his first term as president, he found his progressive ideas thwarted again and again by a right-leaning Supreme Court. He struck back after his landslide reelection in 1936, which left him with large majorities in both houses of Congress. Roosevelt proposed the addition of six new justices to bring the court to a total of 15 members — yet even he, atop a wave of popularity, couldn’t get his court-packing plan through a friendly Congress.
That episode is among the most resounding defeats ever handed to a Democratic president — and yet many in the party are now combing through the more than 80-year-old wreckage, hoping to bring it back to life. This Frankenstein project is of a piece with other popular ideas on the left. Progressives want a constitutional rewrite to eliminate the electoral college. If they can’t get that, they want a national compact among the states to award electoral votes to the winner of the nationwide popular vote, regardless of statewide results. In Congress, they want to end Senate filibuster rules.
Any and all of these notions make fine topics for a college seminar. But they are extremely heavy lifts in practical political terms. Which raises the question: Wouldn’t it be simpler to put all this effort into winning more elections under the existing rules? Think how close Clinton came to winning in Wisconsin, Michigan and Pennsylvania. It’s not hard to imagine a campaign with a bit more energy and a bit less entitlement that could have put those states in the win column.
But actually listening to voters outside the party echo chamber, and earnestly seeking common ground with them, is evidently the heaviest lift of all. Better to change the rule book than to work harder at winning the game.
Read more from David Von Drehle’s archive.