Barrett’s testimony before the Senate Judiciary Committee, and President Trump’s comments before nominating her, brought home just how dangerously disrespectful of democratic norms the enlarged conservative majority on the court threatens to be.
Her silence on the most basic issues of republican self-rule tells us to be ready for the worst. She wouldn’t say if voter intimidation is illegal, even though it plainly is. She wouldn’t say if a president has the power to postpone an election, even though he doesn’t.
She wouldn’t even say that a president should commit himself to a peaceful transfer of power, telling Sen. Cory Booker (D-N.J.) that “to the extent that this is a political controversy right now, as a judge I want to stay out of it.”
What, pray, is controversial in a democratic republic about the peaceful transfer of power? It’s hard to escape the conclusion that she was nodding to the president who nominated her. He said he wanted a friendly judge on the court to deal with electoral matters, and he continues to signal that one of the most hallowed concepts of a free republic is inoperative when it comes to himself.
Rushing to confirm such a nominee just in time to rule on any election controversies (from which she refused to commit to recusing herself) would be troubling enough. But it is all the worse for being part of a tangle of excesses by the Republican Party and the conservative movement.
The truly scandalous lack of institutional patriotism on the right has finally led many of the most sober liberals and moderates to ponder what they opposed even a month ago: The only genuinely practical and proper remedy to conservative court-packing is to undo its impact by enlarging the court.
Note the language I just used. Court-packing is now a fact. It was carried out by a Republican Senate that was cynically inconsistent when it came to the question of filling a court seat during an election year. A Democratic president could not get a hearing on Judge Merrick Garland. A Republican president got express delivery on Judge Barrett.
That’s two seats flipped. Then consider the lawless 5-to-4 Bush v. Gore ruling by conservative justices in 2000 that stopped the Florida recount and let George W. Bush become president. (Oh, yes, and Chief Justice John G. Roberts Jr., Justice Brett M. Kavanaugh and Barrett were all Bush lawyers in that fight. All in the family.) After winning reelection the normal way, Bush appointed Roberts and then Samuel A. Alito Jr. to the high court in 2005.
That’s four seats out of nine.
It’s not court enlargement that’s radical. Balancing a stacked court is a necessary response to the right’s radicalism and (apologies, Thomas Jefferson) to its long train of abuses. And conservatives are as hypocritical about court enlargement as they are about Garland and Barrett: In 2016, Republicans expanded the state supreme courts of Georgia and Arizona to enhance their party’s philosophical sway.
Democracy itself is at stake here. If the oligarchy-enhancing Citizens United decision and the gutting of the Voting Rights Act in the Shelby County ruling don’t convince you of this, reflect on a study by the pro-enlargement group Take Back the Court. In 175 election-related cases this year, it found that Republican appointees interpreted the law in ways that impeded access to the ballot 80 percent of the time, compared with 37 percent for Democratic appointees. (The group pegged the “anti-democracy” score of Trump appointees at 86 percent.)
Court enlargement will be a long battle, but those of us who support it should be encouraged, not discouraged, by Joe Biden’s call for a bipartisan commission to study a court system that is, as Biden put it, “getting out of whack.”
Biden is a long-standing opponent of enlargement, so his statement is an acknowledgment that this crisis can’t be avoided. His commission would help the public, which usually doesn’t want to worry about judges, understand the danger of a judiciary dominated by reactionaries.
Sadly, the best case for enlargement is likely to be made by the court’s conservative judicial activists themselves. It would be good for democracy if they showed some restraint. But everything about this struggle so far tells us that restraint is no longer a word in their vocabulary, and that prudence is not a virtue they honor anymore.