America is facing a crisis of political legitimacy
Packing the Supreme Court would only make it worse
Just when you thought American hyper-partisanship and civic rancor couldn't get any more intense, the death of Supreme Court Justice Ruth Bader Ginsburg has plunged the country into an even more intense cycle of anger and recrimination on both sides of the partisan divide.
Will Senate Majority Leader Mitch McConnell (R-Ky.) bring to a vote on the Senate floor President Trump's soon-to-be-announced conservative nominee to succeed the liberal Ginsburg, even though it violates the principle he enunciated in order to justify blocking President Obama's nominee to succeed conservative Antonin Scalia, who died in February 2016? Of course he will.
Back then, McConnell insisted that when there's a high court vacancy in an election year, the American people should get a say before the seat is filled. But now he's revised the principle so that it only applies when the Senate and presidency are held by opposing parties. When the same party controls both, as it does now, that party has every right fill the vacancy any old time, presumably right up to and through Election Day, and maybe even during the lame duck session after the party concerned has lost both the presidency and majority control of the Senate. In principle, a Republican president and Senate could confirm a nominee to fill a vacated seat on the Supreme Court right up until the moment the next Congress is sworn in.
But principles never had anything to do with it. McConnell had the power to block Obama's nominee and he used it. McConnell also has to power to bring Trump's nominee to a vote, and he will use that, too. It really is that simple.
How should Democrats respond to this assertion of raw power on the part of their political opponents? It may be hard for them to accept, but the only reasonable and responsible path forward is for them to continue playing by the established political rules, doing everything they can to win the upcoming election by the widest possible margin, and holding back from promising to do anything as foolish as packing the court after they prevail. Anything else risks deepening American's burgeoning legitimacy crisis.
Fortunately, Democratic nominee Joe Biden understands this. Asked in July 2019 where he stood on the idea of Democrats nominating and confirming additional (progressive) justices to the high court in order to neutralize the conservatives Trump and McConnell have managed to appoint, Biden responded, "No, I'm not prepared to go on and try to pack the court." Three months later, he added the following during that month's Democratic primary debate: "I would not get into court packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."
Exactly right. If the Democrats add justices to the court, Republicans will cease abiding by rulings they don't like — until they next gain power and pack the court with even more of their own justices, at which point Democrats will begin to nullify the rulings they don't like. Very quickly, public confidence in the institution will collapse. This is so obvious that it's hard to believe anyone takes the proposal seriously.
Though it's also true that some on the left and right favor such a development, seeing it as a move in the direction of reforms that would weaken the court's powers and transfer them to the more democratic branches of government. That sounds nice, and if the country were starting over from scratch, I might favor it. But we don't have the ability to start over from scratch. All reforms start from where we are and involve some parties losing power relative to the present, which is all it takes for the reform itself to be viewed as lacking in legitimacy. That's why the pursuit of court packing would be a headlong lunge into the political abyss — one of several possible paths forward that could swiftly lead to a severe constitutional crisis and accompanying outbreak of widespread political violence.
Why has it come to this? Democrats are increasingly convinced that their opponents are cheating, rigging the rules in their own favor in order to freeze the center-left and left out of power. Hence the need to bend or break some rules of their own to retaliate and make up for lost ground. But the truth is less satisfying than that. In reality Republicans are remarkably good at winning elections according to the rules that apply equally to both parties, they don't hesitate to use the powers granted to them by these rules, and they've also benefitted handsomely from a good bit of luck down through the years.
Consider: Since 1945, Republicans have held the presidency for a total of 40 years (or 53 percent of the time), while Democrats have held it for 35 years (or 47 percent of the time). Yet in those 75 years, Republicans have appointed 20 Supreme Court justices compared to the Democrats' 12. That's 62.5 percent for the GOP and 37.5 percent for the Dems. Why the discrepancy? Nothing more nefarious than the fact that there have been more retirements and deaths during Republican than during Democratic administrations.
Republican Dwight Eisenhower had the opportunity to appoint five justices during his eight years as president, Richard Nixon and Gerald Ford got five during their combined two terms, and Ronald Reagan and George H.W. Bush got six appointments to the high court during their 12 years. Democrat Jimmy Carter, meanwhile, got to appoint no one during his single term, with Bill Clinton and Barack Obama only getting two each in their combined 16 years in the White House.
Of course the Democrats don't only suffer from bad luck. In retrospect, Justice Ginsburg, whom I greatly admired, was foolish not to retire in 2014, when her seat could have been filled by Obama and a Senate in Democratic hands. And then, on top of the misfortunes and reckless gambles, there is McConnell's constitutionally permitted ruthlessness, which handed one of Obama's vacancies to Trump — and may give him another one now. (Though on the latter, it's hard to imagine a Democratic president and Senate Majority Leader doing anything different if the situation were reversed.)
The conflagration surrounding McConnell's refusal to permit hearings or a floor vote on Obama's nominee in 2016 did a lot to advance our legitimacy crisis, but it's important that Democrats not push that crisis even further by portraying contingencies and hard-ball political tactics as structural impediments to them gaining power. Yes, gerrymandering at the state level is quite bad in some cases (with Wisconsin standing out as an especially egregious example). And in some recent election cycles, the gap between the Electoral College and the popular vote has become galling in a way that is not sustainable.
Yet even there, as I've recently argued, the cause of the problem is less the structural character of the Electoral College as such than it is the contingent shape of the Democratic electoral coalition since 2016. (The Democrats did quite well in the Electoral College in 2008 and 2012.) The same can be said of the Senate, which Democrats have taken to deriding for its unfair apportioning of equal power to states with populations of vastly different sizes. Yet Democrats had a Senate majority just six years ago — and as recently as 2009, they held 60 seats in the chamber. Something has certainly changed in the intervening decade, but it's not the way Americans elect their senators.
Donald Trump has done enormous damage to the civic well-being of the country over the past four years by undermining confidence in American institutions, very much including our capacity to trust the outcome of democratic elections. Democrats need to ensure that they don't do their own version of the same thing by repeatedly lashing out in frustration at the structures that hand them fewer political victories than they believe they deserve.
There's an enormously important election coming up. Democrats look well placed to win it, and win it big. They need to keep their eyes on that prize and follow the lead of their nominee in refusing to be baited into contributing to our country's rolling legitimacy crisis. One party whining about how the system is rigged against it is already more than enough.
Want more essential commentary and analysis like this delivered straight to your inbox? Sign up for The Week's "Today's best articles" newsletter here.