Politics & Policy

Against Packing the Courts

Vice President Joe Biden and President Barack Obama applaud Judge Merrick Garland at a Rose Garden ceremony announcing Garland’s nomination for the Supreme Court, March 16, 2016. (Jonathan Ernst/Reuters)
Democrats have learned nothing from Merrick Garland

More than any other single political event — including the Watergate scandal — the dishonest and morally indefensible attack on Robert Bork led by Teddy Kennedy and Joe Biden created the rancorous procedural and political maximalism that defines life in Washington today. Senators Kennedy and Biden — the guilty, sodden conscience of the Democratic party and its second-rate brain, respectively — did more than any two elected leaders in modern American history to cheapen consensus, render compromise unprofitable, and derail long-term cooperation between the major national political parties and, more important, between the two dominant American political tendencies for which they stand. This is Joe Biden’s America, and its politics are crippled.

Republicans, of course, are driven by the same self-interest that drives any ordinary politician, and unilateral political disarmament was never a serious option for them. Republicans will use every tool at their disposal, something the Democrats ought to keep in mind when they consider establishing new political precedents, as with the current boomlet in support of packing the Supreme Court — expanding the number of justices on the Court beyond the current nine and filling those bonus seats with reliable Democratic hacks on the model of Justices Kagan and Sotomayor — as soon as the opportunity presents itself.

This is a lesson the Left keeps failing to learn.

The Democrats believe that we are in a national crisis because the Republicans have spent the past couple of decades pulling more or less the same shenanigans that Democrats have been offering up since they were the party of slavery and implacable opposition to the central bank — with one critical difference: Republicans are better at it.

A lot better at it.

The word “gerrymandering” is literally derived from the name of a Democratic-party boss (Governor Elbridge Gerry of Massachusetts served the Jefferson-Jackson organ back when it was still known as the Democratic-Republican party), but Democrats were never as good at it as Republicans are, with the GOP for once having taken the technological lead, using sophisticated software to maximize their advantage in redistricting. Gerrymandering was par for the course for generations in Democrat-dominated American legislatures, an ordinary exercise in politics, but when Republicans got too good at it, it became a threat to democracy: “extreme gerrymandering,” in the inevitable and inevitably stupid description.

Your rules, Democrats.

Why did Senator Mitch McConnell put the screws to Merrick Garland when Barack Obama nominated him to the Supreme Court? For one thing, to demonstrate to the lordly president that “elections have consequences” is a standard that can hobble presidents as easily as empower them. For another, to protest specific usurpations of congressional power by the Obama administration. But mostly, because he wanted to — and because he could. And the reason he could is thanks to Joe Biden and Teddy Kennedy.

For a generation, Democrats have been pretending that every Republican nominee to the Supreme Court is a uniquely monstrous threat to the Constitution and the republic — hell, they’ve started that already this time around without even knowing who the nominee is. People get used to that kind of pedal-to-the-metal, balls-to-the-walls politics, and they become jaded and bored by it. Senator McConnell knew that the New York Times would scream about his suffocating Judge Garland’s nomination, and that Berkeley leftists would rage about the “stolen” seat on the Supreme Court, but he was clever enough to know that none of that noise would matter very much. Either a Republican president would choose a new nominee after the 2016 election or a Democratic president would proceed on the same or a similar course. It was a low-risk wager for Senator McConnell.

For a generation, Democrats have been pretending that every Republican nominee to the Supreme Court is a uniquely monstrous threat to the Constitution and the republic — hell, they’ve started that already this time around without even knowing who the nominee is.

Note: Ronald Reagan lost the Bork nomination fight, but he did get a later nominee confirmed: the exiting Anthony Kennedy. (A qualified victory, to be sure.) Barack Obama did not fare as well: Donald Trump’s judicial team selected the justice who filled the vacancy in which President Obama had hoped to install Judge Garland.

Harry Reid was a devious, lying snake without an honorable bone in his body, but Senator McConnell is, for the moment, magister ludi.

Drawing up new legislative districts is an inherently political exercise; as one longtime legislator told me long ago when I was young and ignorant, it is the most political thing a legislature regularly does. A few progressives lately have argued, following a road-to-Damascus conversion on the issue, that “extreme gerrymandering” makes necessary a move to redistricting by purportedly scientific means employed by disinterested nonpartisan experts, who are sure to be disinterested and nonpartisan in the sense that the New York Times is a nonpartisan newspaper and the American Bar Association is a disinterested seeker of excellence in the legal profession.

If the control of state legislatures were split 32 to 14 in the Democrats’ favor rather than in the Republicans’ favor, as things currently stand, we’d be hearing precisely nothing about this. Most people who pay any attention to politics understand that, which is why the Left’s efforts to whip up national hysteria over redistricting (or the Electoral College, or the fact that the First Amendment really does protect political communication, after all) have not come to much. Hypocrisy may not count for a great deal in politics, but sometimes it does tamp down the energy associated with a particular issue. People do tend to notice that there is no antiwar movement on the left when there’s a Democratic president.

The current push on the Left to expand the no-quarter approach to Supreme Court politics by introducing court-packing schemes is genuinely dangerous for the country.

Choosing a nominee for the Supreme Court is political, too, as political as redistricting, and so is the process of having a nominee confirmed by the Senate. That’s natural, and there isn’t anything inherently wrong with that. The questions are: 1) Political to what extent? 2) Political in what character? 3) Political to the exclusion of all other considerations? For a generation, Democrats have answered those questions: 1) Entirely; 2) As dishonest as necessary; 3) Yes. They tried to convince the American people that John Roberts was Jack the Ripper and that Neil Gorsuch was John Wilkes Booth. The market for wolf tickets isn’t what it once was.

The current push on the Left to expand the no-quarter approach to Supreme Court politics by introducing court-packing schemes is genuinely dangerous for the country. That’s worth thinking about, but it is also worth considering — not that I’ll shed any tears over it — that it’s dangerous to the political aspirations of the Democratic party, too. Republicans have bested them in all their own favorite games, gerrymandering, filibusters, and weaponizing congressional procedure prominent among them. They’d probably be better at court-packing, too. The Republicans may look divided and in disarray in the Trump era — and they are, of course — but it is the Democrats who have the more pressing long-term coalitional problem of being a party in which little old white liberal ladies lord over a growing and politically dynamic constituency that is much younger, much browner, and surely wondering why its members’ most pressing priorities have to be signed off on by that ghastly butcher Cecile Richards or that puffed-up PTA president Dianne Feinstein. It isn’t obvious that Latino ethnic-solidarity politics is going to be a real big winner in UAW country. That permanent Democratic majority, like Hillary Rodham Clinton’s presidency, is always on the way but never quite arrives.

The Constitution builds a triple-wythe wall around federal power: first, through the enumeration of powers in the main articles and the enumeration of rights in the amendments; second, through the division of powers among the three branches of government and, critically, within the branches as well, through the subdivision of the legislative and judicial branches; third, through the division of powers between the states and the federal instrument they created to serve their joint ends. Mr. Madison’s architecture is elegant, creating a national apparatus that has the power and motive to act decisively within its defined theater of operation, meaning issues such as war, immigration, and international trade that are truly national in scope. The federal government is not intended to oversee the filling of potholes in Sheboygan or the selection of public-school textbooks in Muleshoe, but it is only an instrument of men, men are imperfect and ambitious, and anybody who ever has used the word “foolproof” with great confidence has not spent sufficient time in the company of the fools resident in our great nation’s depraved and hideous capital. Still, it is a system that works when we let it work rather than subverting it to narrow, short-term, parochial ends.

Sure, some future Democratic Congress could pass a law expanding the Supreme Court from nine seats to 13. And some future Republican Congress could expand it from 13 to 17, or 33 or 71. And the bile of Washington will continue to seep up through the floorboards of American domestic life, to no one’s real benefit.

We could do better than Joe Biden’s America if we wanted to. Learning to want to is half the battle.

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