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Remember in 2016 when Republicans thought Clinton was going to win and planned to change the size of the Supreme Court because it would be politically advantageous? https://www.npr.org/2016/11/03/500560120/senate-republicans-could-block-potential-clinton-supreme-court-nominees
It was a whole *thing* in October 2016: several Republicans wanted to shrink the court by refusing to confirm anyone at all if Clinton won, taking it down to 8... and then 7... and maybe down to 6... https://www.nationalreview.com/2016/10/supreme-court-2016-election-fewer-justices-would-curb-power/
They did this because they thought Clinton was a lock.
They did this because they thought Clinton was a lock.
The argument was that because it was technically within their powers, they could (and should) do it.
Expanding the court is within their powers, as well.
https://thefederalist.com/2016/10/26/senate-refuse-confirm-hillary-clintons-judicial-nominees/
Expanding the court is within their powers, as well.
https://thefederalist.com/2016/10/26/senate-refuse-confirm-hillary-clintons-judicial-nominees/
In 2013, Obama nominated judges to fill 3 vacancies on the DC circuit court (probably the most influential non-SCOTUS court in the country).
Not only did Republicans (who were in the minority at the time) block the nominations, but they accused Obama of “court packing!”
Not only did Republicans (who were in the minority at the time) block the nominations, but they accused Obama of “court packing!”
Here’s Grassley calling the 2013 nominations (which, again, were to fill existing vacancies), an attempt to “pack the court to advance a certain political agenda.”) https://www.grassley.senate.gov/news/news-releases/grassley-reacts-news-reports-say-president-obama-will-nominate-three-dc-circuit
Obama and Democrats, who had the Senate majority at the time, were frustrated because McConnell was holding up an absurd number of nominees from ever getting a vote, sometimes FOR YEARS. https://www.washingtonpost.com/politics/obama-calls-on-senate-to-quickly-confirm-3-judicial-nominees/2013/06/04/0a04e18c-cd27-11e2-8845-d970ccb04497_story.html
It wasn’t just a matter of using their ability to filibuster his nominees to nudge him to nominate judges they could all agree on. No, it was being done specifically to keep those seats open until Republicans were back in power.
So finally, that November Maj. Leader Harry Reid eliminated the filibuster on those lower court nominees that the minority party was blocking because they wanted to hold the seat open forever. https://www.politico.com/story/2013/11/harry-reid-nuclear-option-100199
They very clearly didn’t *want* to do that, but after *years* of abusing the advice and consent role of the senate, they were faced with the option of either never getting nominees through unless they had a *supermajority* in the senate or changing the senate rules.
Total “rock and a hard place” situation. People like to go “oh, you can thank HARRY REID for that” when talking about McConnell just rushing as many judges through as he can, but you’re honestly out of your mind if you think McConnell wouldn’t have blown up the filibuster anyway
His philosophy has always been that if he’s technically allowed to do something, he will do it. “Norms” be damned. When he eliminated the SCOTUS-level filibuster, it wasn’t after years of Democrats holding that seat hostage. It was done damn near immediately.
Do you know why McConnell hasn’t abolished the legislative filibuster? Because it wouldn’t advantage him to do so. That’s it. No other reason.
Anyone saying “So, the reason Democrats should take X off the table is because the next time they’re not in power, Republicans will just do X+1” doesn’t seem to realize that if they need to, Republicans will do X+1 anyway.
But want to talk about court packing in the expanding courts sense? Sure.
Look to the states:
Arizona! Republican Gov. Doug Ducey added 2 seats to the Arizona Supreme Court in 2018. https://tucson.com/news/local/govt-and-politics/ducey-signs-law-adding-2-justices-to-arizona-supreme-court/article_19f500f3-4db7-5d64-b6c4-2b053df92a00.html
Look to the states:
Arizona! Republican Gov. Doug Ducey added 2 seats to the Arizona Supreme Court in 2018. https://tucson.com/news/local/govt-and-politics/ducey-signs-law-adding-2-justices-to-arizona-supreme-court/article_19f500f3-4db7-5d64-b6c4-2b053df92a00.html
And thanks to that decision by him, he was able to the Phoenix anti-discrimination bill protecting LGBTQ people gutted after a business preemptively sued the city arguing their right to not provide a service (that no one asked for) https://www.gq.com/story/arizona-court-packing-lgbt-wedding-invites
Georgia! In 2016, Republican Governor Nathan Deal signed a bill passed through the (Republican-controlled) legislature to add 2 seats to the state’s Supreme Court! https://www.ajc.com/news/state--regional-govt--politics/expansion-georgia-supreme-court-wins-final-approval/skmjVHCCo80HW4hXZKL6rM/
There are a number of other examples of (almost always Republican) politicians tweaking the size of state courts for political gain. But you get the idea.
When it comes to the current SCOTUS situation, attempts to pin Biden or other Democrats down on it are based on a flawed premise.
Either:
1. Anything that is legally allowed is okay.
or
2. Norms/traditions/the spirit of the law is what should be followed.
Either:
1. Anything that is legally allowed is okay.
or
2. Norms/traditions/the spirit of the law is what should be followed.
Because if the GOP confirms a SCOTUS nominee right now, then they’re clearly embracing the “anything legally allowed is fine” approach and Dems would be absolute fools to say they won’t engage in hardball. If the GOP sits on the nomination until after inauguration, it’s moot.
