The political battlegrounds for the America’s courts spilt into national news coverage once more this past weekend when 86-year-old Supreme Court Justice Ruth Bader Ginsburg was briefly hospitalized. While not a new phenomenon in American politics, the last decade has seen a resurgence in the politicization of America’s judicial system. Exemplifying this change is President Trump’s referral to judges who were appointed under the Obama Administration as “Obama-Judges”. This problematic new trend is even more worrisome once placed into its context of bipartisan democratic backsliding.
Conservative Courts
The four-time cancer survivor is currently the oldest justice on the nation’s highest court. Her health is a matter of national interest, since Supreme Court Justices such as her serve for life. All eyes are on her between now and the 2020 presidential election because in the event of her passing, President Trump will be constitutionally allowed to nominate a new Supreme Court Justice, who would then need to be approved by the currently Republican majority Senate before being appointed.
Not only would a hypothetical Trump-nominated Supreme Court Justice add another conservative judge to the court – replacing progressive Justice Ginsburg, but this would be the President’s third conservative justice nominated. Such an unfolding of events would solidify a conservative-packed Supreme Court for years to come.
In fact, these concerns come during a time where the Republican Senate and Trump Administration seem to be packing the courts to tilt our nation’s judicial system further towards the right. The key figure of this ostensible effort is Senate Majority Leader Mitch McConnell. Under McConnell’s leadership, the republicans in the Senate first prevented the Obama administration from appointing new judges throughout the courts (thereby leaving vacancies throughout the court for 2017), and then with the help of President Trump have been “packing the courts” with conservative judges.
In terms of the republicans’ efforts to hinder the Obama Administration from appointing judges, they did so quite successfully. In “Conservative Court Packing”, Sam Berger comments on their success, writing; “The most infamous examples was the McConnell-led refusal to even hold a hearing for President Barack Obama’s nominee for the Supreme Court, Merrick Garland… During Obama’s last two years as president, the McConnell-led Senate majority confirmed the fewest judges in more than half a century, including only two appellate court judges. All told, McConnell and his conservative Senate allies held open more than 110 judicial seats by the end of [sic] the Obama presidency.” The Republicans’ success in these court-blocking efforts left plenty of vacant court benches for the Trump Administration to fill.
And fill them they have: “After 32 months in office, [President] Trump has made 209 nominations to the federal judiciary, with 152 judges confirmed by the Senate, including two Supreme Court justices. That’s nearly half the total confirmed during President Barack Obama’s eight years in office.” Columnist Elie Mystal claims that this court packing effort by republicans has reshaped the judiciary for an entire generation; in her eyes an injustice which; “will linger,” even after President Trump eventually leaves office, “like an infected wound poisoning the body politic even after the initial injury has scabbed over.”
Reactionary Progressives
This successful court-packing strategy has not gone unnoticed by Democrats. In addition to vocally distressing over how these events have unfolded, many prominent progressives have decided that it is time to fight fire with fire. In a The New York Times opinion piece titled “Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court: Their lifetime appointments cry out for Democratic hardball”, Columnist Jamelle Bouie does advocate for Democrats getting “Even” and playing “hardball”. He laments that even if the Democrats perform spectacularly in the polls, they would still have to deal with the now largely conservative judiciary. He then asks: “So what should Democrats do?” He then answers: “They should play hardball back… Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court.” What he wants is for Democrats to use their constitutional authority to add more seats to the Supreme Court (the expansion), and then to fill those seats with progressive judges (the packing). He adds: “Likewise, expand and pack the entire federal judiciary to neutralize Trump and McConnell’s attempt to cement Republican ideological preferences into the constitutional order.”
It would be one thing if Bouie was a radial progressive outlier. But he is not. Democratic Presidential potential California Senator Kamala Harris has stated that she is open to increasing the number of justices on the Supreme Court in order to prevent the now conservative Supreme Court from potentially overturning Roe v. Wade. Vermont Senator, and one of the Democratic Party’s frontrunners for 2020, Bernie Sanders has expressed similar concerns over republican court packing, and has even suggested establishing term limits for Supreme Court justices.
While political reactionism doesn’t seem compatible with progressive mores, it seems that as long as Republicans started it, then “hardball” is permissible. Progressive Michele Eason summed up the current feelings on this topic, when she said, after advocating for expanding and packing the judiciary at a Harris rally; “Normally I would say, hey that’s kind of dirty pool and it’s not playing fair. Two words: Merrick Garland.”
Democratic Erosion
Unfortunately, this partisan race to pack the courts has problems beyond the potential political interference of the other side. This arms race for justices is a threat to American Democracy. In How Democracies Die, Steven Levitsky and Daniel Ziblatt attempt to determine a checklist for identifying the warning signs of democratic erosion. The current conservative attempts to pack the courts, their implicit reasoning for these attempts, the progressive movement to retaliate to these attempts with their own packing and expansion attempts, and the explicit reasoning behind this planned retaliation are all caught in a whirlpool of democratic erosion as explained by Levitsky and Ziblatt’s analysis.
The attempts by republicans to block the Obama Administrations judicial appointments and to pack the courts with conservatives, while constitutional, breaks democratic norms in both instances. Breaking democratic norms for political gain is one of the warning signs of democratic erosion. It also shows that the republicans are trying to ‘rig the game’, so to speak. They are no longer playing the game of democratic politics, and are instead trying to play the system to ensure their policies can override democratic procedure if need be via judicial review. Levitsky and Ziblatt comment on this second aspect, calling it “constitutional hardball”, writing: “The opposite of forbearance is to exploit one’s institutional prerogatives in an unrestrained way. Legal scholar Mark Tushnet calls this ‘constitutional hardball’: playing by the rules but pushing against their bounds and ‘playing for keeps.’ It is a form of institutional combat aimed at permanently defeating one’s partisan rivals –and not caring whether the democratic game continues.”
What’s more, the implicit reasoning behind these attempts are reactionary. Many have said, on both sides, that the election of Donald Trump is indicative of a reaction to the increased progressivism of the Democratic Party in recent years. These attempts likely stem from the same reaction. In a desperate attempt to conserve the American Republic, conservatives have decided to pack the courts in order to further prevent increased progressive policies which seem to be fast approaching. These include both social and economic policies such as increased gun control, universal healthcare, and increased business regulations in the name of environmental protection. Thus, these attempts likely stemmed from a perceived threat to conservative ideals. Levitsky and Ziblatt’s analysis holds that viewing political rivals as existential threats is a clear sign of democratic erosion.
Regardless of fairness, the progressive reaction, if taken, will be equally erosive to American Democracy. Such a reaction would also view their opponents as existential threats, break democratic norms, and be actions indicative of no longer playing the game of democracy.
Hopefully, both Justice Ginsburg and America’s Democracy have a lot of life left in them. Unfortunately, both see to be in and out of the hospital. America would be wise to pay attention to the health of both.
Sources:
Berger, Sam. “Conservative Court Packing.” Center for American Progress, 3 Apr. 2019, www.americanprogress.org/issues/democracy/news/2019/04/03/468234/conservative-court-packing/.
Biskupic, Joan. “Democrats Look at Packing the Court to Pack the Vote.” CNN, Cable News Network, 31 May 2019, www.cnn.com/2019/05/31/politics/democrats-supreme-court-packing-politics/index.html.
Bouie, Jamelle. “Mad About Kavanaugh and Gorsuch? The Best Way to Get Even Is to Pack the Court.” The New York Times, The New York Times, 17 Sept. 2019, www.nytimes.com/2019/09/17/opinion/kavanaugh-trump-packing-court.html.
Mystal, Elie. “Donald Trump and the Plot to Take Over the Courts.” The Nation, 15 July 2019, www.thenation.com/article/trump-mcconnel-court-judges-plot/.
Wright, Bruce C.T. “Ruth Bader Ginsburg Death Hoax Goes Viral As Supreme Court Justice Is Hospitalized.” News One, News One, 24 Nov. 2019, newsone.com/3894821/ruth-bader-ginsburg-death-hoax/.
Trump’s court-packing is definitely going to limit the ability of Democrats to achieve their agenda, I think it would be a huge mistake though for them to retaliate by doing the same thing. In my class we went over how fighting populism with populism is not a viable answer and to me I feel that is essentially what that move would be. I really enjoyed your blog and this 2020 race certainly feels like it could be similarly effected by a looming court nomination much like the gravity that the death of Justice Scalia had in the 2016 election I think.
With Donald Trump and the Republicans’ control over the Judiciary system, it seems that the current ruling party will be at the helm for a long time. Unless, the democrats will do the same thing after the 2020 election, and if they win. I agree that it’s no longer playing the game of democratic politics, it’s all about personal gain and democratic erosion is very evident. I like how you used Steven Levitsky and Daniel Ziblatt’s analysis on democratic erosion, it further explained the current situation of the United States. The Judiciary system is considered as a guardrail of democracy, and if the Judiciary is being controlled by a single party, democracy will definitely be in danger.
I agree that Democrats’ proposal to pack (add seats to) the courts is as corrosive to democracy as the Republicans’ strategy to fill the benches up with conservative judges. But it is important to have a clear diagnosis of the core of the problem to arrive at possible alternative strategies.
Court packing does not erode democracy per se. Indeed, appointing new judges could help courts process more cases and resolve them more quickly. Instead, packing and filling up the courts is only a problem because judges seem to vote predictably in favor of certain political agendas. This shows that polarization in the US has become so severe that it has seeped into the judiciary.
The core of the problem is therefore what scholars have called “pernicious polarization.” To dampen polarized attitudes, it is important for the opposition not to reciprocate the administration’s tactics. Thus, rather than adopt a radical goal like court packing, Democrats should instead consider institutional strategies with moderate goals.
For example, Democrats could aim to reinstate the Senate rule requiring a supermajority vote to end debates and force a vote on judicial nominees. This rule means that nominees should enjoy supermajority support by the Senate to survive any potential filibuster attempt. It had long been in place for Supreme Court nominees until it was revoked by McConnell in 2017.
Reinstating the rule would ensure that judicial appointments do not become a winner-take-all process and would push the president to nominate moderate judges over ideologues. The higher the threshold to end debates, the better. The historical threshold was two-thirds, but it has since been reduced to three-fifths and, in 2017, a simple majority. Returning to the rule could also drive Democrats and Republicans to work together on judicial appointments.