Some who are opposed to Amy Coney Barrett’s Supreme Court nomination are blurring the line between confirming a justice to fill a vacancy and the so-called “packing” of the court. Using this nomination to justify court packing would be a huge mistake.
The real underlying issues relate to checks and balances and separation of powers. These are ideas that are embedded in our constitutional system of government. They’re essential to the successful American experience in representative government.
The continued success of this experience depends on all of us abiding by these basic principles. Without checks, balance is threatened. Without separation, power is unfettered. Our founders understood that. They deliberately divided our national government into three branches designed to balance one another against the accumulation of too much power in one place or person.
That’s why we have a president, not a king; a Congress, not a politburo; and an independent judiciary, not star chambers or kangaroo courts. If we knock one leg off this executive/legislative/judicial stool, the whole thing tips over.
That’s what could happen if our leaders in Washington go down the path of tinkering too much with our carefully checked and balanced system — if they fail to maintain the deliberate separation of powers. The most recent example is talk of increasing the size of the Supreme Court.
The argument goes like this: Since Republicans are pushing through a conservative Supreme Court nominee to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, Democrats would be justified in expanding the size of the court with liberal justices to offset its conservative tilt.
This tit-for-tat approach may sound appealing to Democrats, but it could easily lead to an unraveling of the balance of power in Washington, remaking the Supreme Court into not an equal branch of government, but an appendage of executive and congressional will.
Suppose Democrats sweep to power in Washington next month, winning control of both the White House and Congress, and the court is increased from nine to 11 members by this one-party government. It may more easily bend to the will of Congress and the president, but it will have lost its essential independence as a co-equal branch. It will in essence have become an arm of the other two branches.
Fast-forward a few years and imagine the presidency and Congress swinging back to Republican control. The new one-party government decides to increase the court from 11 members to 13 to get its pet initiatives through. It passes a different health care bill and changes the abortion laws, and then guarantees their passing Constitutional muster by loading the court with sympathetic justices. Over time the Supreme Court becomes a bloated mess, with 17 or 19 justices, or whatever number is needed to uphold the policies of the contemporaneous administration and Congress.
America came perilously close to this situation once before. In the 1930s, President Franklin Roosevelt was frustrated that the Supreme Court struck down some of his New Deal initiatives as unconstitutional. When FDR tried to pack the court with sympathetic judges, the national backlash was swift and certain. FDR wisely backed down, and judicial independence was maintained.
Maybe we Americans take our form of government too much for granted. We expect it to survive another 200 years just because it’s already lasted well over 200. Yet what Congress and the president do can imperil our constitutional government.
Congress, in particular, should resist the temptation to change its own self-limiting rules. The current Supreme Court controversy began when then Senate Majority Leader Harry Reid took advantage of his Democratic majority to remove the requirement of 60 votes to confirm District Court nominees. When the Senate swung back to Republican control, Majority Leader Mitch McConnell decided to remove this 60-vote threshold for Supreme Court justices as well. That’s why Coney Barrett will likely be confirmed before the election.
The next step in eroding the 60-vote requirement for Senate action would be to eliminate its application not just to judicial appointments but to all other legislative actions as well. That might sound appealing to the leaders of the next Senate majority, but it could come back to haunt them, too. Majorities shift with elections, and minority rights and privileges look a lot better when you’re in the minority.
As someone who lived with both the pluses and minuses of the Senate’s higher threshold for action, I know that tinkering with power is tempting. It’s also dangerous.
Al D’Amato, a former U.S. senator from New York, is the founder of Park Strategies LLC, a public policy and business development firm. Comments about this column? ADAmato@liherald.com.