Democratic candidates are being pushed to the left on several key issues as the race for the 2020 nomination heats up. One of those issues, as Politico made clear on Monday, is whether something should be done to protect the integrity of the Supreme Court from ruthless political maneuvering. Sens. Kamala Harris (D-CA), Elizabeth Warren (D-MA) and Kirsten Gillibrand (D-NY) don’t want to rule out the idea of adding seats to the nation’s highest court. “We are on the verge of a crisis of confidence in the Supreme Court,” Harris told Politico. “We have to take this challenge head on, and everything is on the table to do that.”
Amending the makeup of the Supreme Court has long been a radical idea, but considering the GOP’s recent corruption of the selection process and the overlarge role the court plays in shaping everything from voting rights to reproductive rights, it makes sense to entertain the possibility. The former concern has been borne out most recently by Senate Republicans forcing through the confirmation of Brett Kavanaugh despite credible allegations of sexual assault and widespread condemnation from the judicial community. Two years earlier, Senate Majority Leader Mitch McConnell (R-KY) refused to consider confirming Merrick Garland, whom President Obama nominated to fill the vacancy left after Antonin Scalia died in February 2016. McConnell made it clear in the days following Scalia’s death that he fully intended to buck the president’s authority to fill Supreme Court vacancies, which is outlined in the Constitution. “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new president.”
John McCain said in 2016: “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” The GOP already decided number of seats on the Court would be decided by politics, we’re just haggling over the numbers. pic.twitter.com/7B2RYTM2Jz
— we’re going to pass AVR 🍉🍉 (@SeanMcElwee) March 18, 2019
Shortly after taking office, Trump nominated conservative judge Neil Gorsuch to fill the vacant seat. A year later, longtime conservative Justice Anthony Kennedy retired, paving the way for Trump to nominate another conservative, in this case Kavanaugh, a former clerk of Kennedy’s. In just two years, Republicans proved how easy it is for whichever party controls the Senate to game the system. The only requirement is the absence of shame and a lack of respect for the intentions of those who designed the makeup of the court. “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Warren explained to Politico. Gillibrand added that she considers Gorsuch’s seat to be illegitimate, and that ethics standards should be put in place.
Harris, Warren and Gillibrand aren’t the only high-profile candidates who have refused to rule out the idea of reforming the court. In February, Pete Buttigieg said he was open to the idea of court-packing. “I’ve not reached a considered position on the question of court-packing,” he said. “I don’t think we should be laughing at it. In some ways it’s no more of a shattering of norms than what’s already been done to get the judiciary where it is today.”
— Pack The Courts (@PackSCOTUS) February 20, 2019
Buttigieg elaborated a few weeks later on Pod Save America. “We should in the course of this 2020 campaign have a debate over this central objective that is to prevent the Supreme Court from continuing on this trajectory to become basically ruined by being a nakedly political institution,” he said. “So to me, this idea of adding justices is one way to do it. It may actually not be the most compelling way to do it. I mean I’m interested in a policy where you would have five appointees of Republicans and five of Democrats on a 15-member court. And where you get the other five from is a consensus of the other 10 which has to be unanimous.”
Beto O’Rourke, who entered the race last week, has also entertained the idea. While speaking to supporters in Iowa, the former Senate candidate floated a number of potential court reforms, including the 5-5-5 plan mentioned by Buttigieg. “What if there were five justices selected by Democrats, five justices selected by Republicans, and those 10 then picked five more justices independent of those who chose the first ten?” he said. “I think that’s an idea we should explore.”
“There’s another idea of adding term limits on those justices so that there’s a more regular rotation through there,” he added. “We’re a country of 320 million people. There’s got to be the talent and the wisdom and the perspective and that court should be able to reflect the diversity that we are composed of.”
Other candidate have been more hesitant, but it’s hard to imagine serious contenders won’t be forced to take a position on what to do about the court at some point during the primary process. Given what’s happened over the past three years, arguing against safeguarding the integrity of the most consequential group of decision makers in America probably isn’t going to be a popular position among liberal voters.