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The Real March Madness: Progressives Want to Pack the Supreme Court (Washington Examiner) March 15, 2019

Posted by daviddavenport in Op/Eds.

While the country gears up for college basketball’s March Madness, progressives already have their own season of silliness in full swing. The latest is a proposal to let the president (only when Democrats retake the White House, of course) add and fill additional seats on the Supreme Court. Former Attorney General Eric Holder likes the idea (let’s add two, he says), as does Democratic presidential candidate and South Bend, Ind., Mayor Pete Buttigieg and several progressive groups.

Writer Wynne McLaughlin has said, “Maybe history wouldn’t have to repeat itself if we listened once in awhile.” Few seem to remember that this idea was laughed out of Congress more than 80 years ago when former President Franklin Roosevelt advanced his own court-packing plan. Roosevelt was frustrated that the Supreme Court was declaring his signature New Deal laws unconstitutional, and his remedy was to add a new justice to the court for every sitting judge older than age 70 (which included six out nine justices at the time).

The plan was widely criticized, even by members of Roosevelt’s own party, and never enacted.

The first question to ask, as liberals resurrect this idea, is what problem they are trying to solve. If it is the politicization of the judicial appointment process, this will only make matters worse. The next president adds two, potentially tipping the political balance of the court from 5-4 conservative to 6-5 liberal. Then, of course, every time the presidency and the Congress changes hands, this topic is likely to be revisited.

The underlying problem Congress should be considering is how to limit the growing power of the Supreme Court and the judicial branch. Again, history provides a valuable insight. Alexander Hamilton argued in The Federalist (No. 78) that the judiciary, having neither the power of the sword nor the purse, would be “beyond comparison the weakest of the three departments.” But the Antifederalists disagreed because the Supreme Court could give the Constitution any interpretation it wanted. This power to be the final word on constitutionality has led the court to decide most of the important issues, especially on social questions and rights, of our day.

This, of course, is why Supreme Court appointments have become so highly politicized.James Madison’s view was that we needed a judiciary that was independent of the other branches of government, but not independent of society itself. One could argue that the Founders should have placed more checks and balances on the power of the courts, but there are several things that Congress could do now to reduce the Supreme Court’s outsized influence.

For one thing, Congress controls the appellate jurisdiction of the court and could reduce its workload, which the justices currently control themselves. Congress also has the power to decide the number of federal courts and the pay of the judges. Essentially none of these powers is taken up by Congress.

A better reform than adding new justices would be to limit their terms, again a power available to Congress. Limiting Supreme Court justices to 18-year terms would allow regular turnover on the bench, with each four-year presidential term producing two new nominations. Judges could then return to some other seat on a federal court to serve out their “lifetime” appointments. Not only would the regular turnover of term limits potentially reduce political warfare in the courts, it would also mean that early appointments of young judges and late service by older ones could be reduced.

Progressives want to give us not only a “Green New Deal,” but also a New Deal in black robes. Packing the court with new justices does not address the underlying problem of the Supreme Court’s excessive power but only exacerbates the politicization of the judicial nomination process.

As former Sen. Bob Dole, R-Kan., said when he was referred to as “Senator Gridlock,” there are a lot of bad ideas in Washington and somebody needs to stop them. Packing the court is one of those bad ideas.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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