One of the big fears that some conservatives have about Republicans doing the simple thing that they were elected to do by confirming a conservative Supreme Court justice is that Democrats would respond by packing the court. As such, they are proposing a “compromise.”
The idea, first put forward by Adam White in a thoughtful piece, is that President Trump nominates somebody, but Republicans agree not to vote until after the election (and to not confirm a nominee in a lame-duck session if they lose) as long as Democrats agree to not pack the court. The idea has gained adherents, including David French and Jonah Goldberg.
There are many reasons I disagree. Given the bitterness over Merrick Garland, the proximity to the election, and the stakes of replacing a liberal icon with a conservative, there is no doubt a confirmation would enrage even centrist Democrats. Let there be no illusions about that. But at the end of the day, Republicans would be doing a perfectly normal thing by voting to confirm a Supreme Court justice. Therefore it does not make sense to refrain from doing something normal out of fear that Democrats will attempt something truly radical. Doing so will only encourage more hostage taking in the future.
Also, while it’s now clear that Republicans have the votes to confirm a Trump nominee, it is not at all clear that Democrats have the votes to pack the court. I have no doubt that the anger over Republicans pushing through a nominee would move the needle toward court packing. But if Democrats win in November and end up with a razor thin Senate majority, they will have to win the votes of centrists such as Sen. Joe Manchin for nuking the filibuster and then packing the court. While in the case of a landslide, they could end up with a larger Senate majority, such a landslide would involve winning seats in states such as Iowa, North Carolina, Georgia, and Montana. How are senators in these states going to explain to voters why they decided to nuke the filibuster to add four liberal justices to the Supreme Court? Packing the Supreme Court was not something that FDR was able to pass, even during the most active period for passage of major legislation in American history, and even after a massive landslide in which Democrats controlled 76 of 96 Senate seats.
Furthermore, Democrats want to come into office and start pumping out popular and unifying coronavirus relief bills rather than triggering a polarizing fight over packing the courts. It’s a fight that Joe Biden is on record opposing multiple times.
So in addition to trading something normal for something radical, by cutting a deal, Republicans would be trading something guaranteed, a solid Supreme Court majority, for something far-fetched: Democrats being able to secure the votes to nuke the filibuster and pack the court, something that even FDR was unable to accomplish. And all of this assumes that Democrats even abide by any deal — a deal that future Democratic senators would not be bound by. So best case, Republicans would be trading a lifetime appointment for a hope that maybe Democrats will refrain from trying something radical for another few years.
In addition to all of these reasons, there is one less explored reason why I do not think Republican actions should be dictated by fear of court packing. The reason is that it will be much harder for Democrats to pass the rest of their liberal agenda if they waste time chasing the chimera of court packing.
In the current political environment, in which we can expect unified obstruction by the opposing party, the window for a president to pass major legislation has narrowed considerably. President Barack Obama, who entered office coming off two straight Democratic waves that gave him a 60-vote supermajority in the Senate, signed his last piece of major legislation (the Dodd-Frank financial regulation bill) just 18 months into his eight-year presidency. Trump’s single major legislative accomplishment, the 2017 tax reform, was signed less than a year after he was inaugurated.
If Democrats want to waste the narrow legislative window available to them by coming right out of the gate with a bitter fight over court packing, that is less time for Biden to pass trillions in new taxes and spending, successfully expand Obamacare by adding a government-run option, any version of the Green New Deal, gun control, and so on. He will have expended a huge amount of political capital on an idea that probably won’t happen before any of those other fights can even occur.
All the more reason for Republicans to call Democrats’ bluff and do what they were elected to do: Confirm a conservative Supreme Court justice.
