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Democrats would destroy Supreme Court with scheme to pack justices
Subtlety has long been a stranger to our politics. This is the age of rage, and there is little room for nuance. That is evident in the intense debate over the nomination of Amy Coney Barrett to the Supreme Court. Democrats have dispensed with any pretense in their calls to block Barrett and "pack" the court. What they want is a new reliable court created through litmus-test confirmations where Senate votes are conditioned on judicial pledges.
© Getty Images Democrats would destroy Supreme Court with scheme to pack justices Various Democratic senators have said they will demand that Barrett answer questions on her view of any challenge to Roe versus Wade, as well as cases like the pending challenge to the Affordable Care Act. Barrett faced such demands from Sen. Richard Blumenthal (D-Conn.) and others during her confirmation as an appellate judge, and many Democrats voted against her because she wouldn't promise to uphold Roe. In their presidential campaigns, Sens. Kirsten Gillibrand (D-N.Y.) and Bernie Sanders (I-Vt.) pledged to appoint only justices who would uphold Roe.
Hillary Clinton lashed out at Barrett and other nominees of President Trump for failing to support particular cases. She expressed disgust that "a number of them would not even say they agreed with Brown versus Board of Education or with other precedents. And it is not just a question of choice. It's a question of whether we're going to continue the move toward progress."
Judicial nominees have long insisted, as a rule, that it is unethical to comment on cases or issues that might come before them. That practice is known as the Ginsburg rule, for the very justice who Clinton praised as a model. The late Justice Ruth Bader Ginsburg believed it was wrong to demand assurances on how judges will vote, including on the validity of a case like Roe. In her 1993 confirmation hearing, she refused to give the very answer that Clinton, Blumenthal, Sanders, Gillibrand and others now demand from her potential replacement.
Indeed, in calling to protect Ginsburg's legacy, these politicians must first pull down the Ginsburg rule. They demand that Barrett and other nominees commit to supporting cases while pushing them to reverse other cases, like Citizens United versus Federal Election Commission on campaign finances.
I
have criticized the Ginsburg rule, which is used by nominees to refuse giving more than indecipherable statements on judicial philosophy. It has reduced confirmation hearings to formulaic, contentless exercises with uncommunicative nominees and bloviating senators. Nominees should be expected to discuss their judicial philosophies and the basis for individual rights, without demanding to hear their positions on pending cases like the ACA challenge.
What today's politicians are advocating, however, is a direct litmus test. Not only will they vote against a nominee who opposes a particular case but they will do so for a nominee who does not expressly support a case. The calls for a litmus test are not just confined to the United States Supreme Court: State Sen. Dan Feltes (D-N.H.), a gubernatorial candidate, has declared he will appoint only state court jurists who pledge to vote in favor of abortion rights.
Even if a nominee like Barrett has a deep-seated, good-faith foundation in the law, it is her expected vote - not her explained views - that will matter. Such conditional voting was rejected long before the Ginsburg rule. Presidents since Ronald Reagan have pledged not to apply litmus tests, and past Senates - under both Republican and Democratic control - have maintained it is improper to demand an assurance on particular cases or claims. Indeed, many current senators supported Justices Elena Kagan and Sonia Sotomayor in refusing to discuss their views on abortion.
Once senators start demanding commitments on cases like Roe, other groups will demand similar litmus tests for cases like Obergefell versus Hodges, supporting same-sex marriage, or cases supporting environmental, disability or other rights. Conversely, while senators often speak of preserving such precedents, they have pressed nominees to commit to reversing cases like Citizens United. If forced to give such assurances in Senate hearings, justices could face later allegations of perjury if they changed their minds or voted differently on the court. Moreover, nominations would become a series of venal pledges of positions on the court to secure votes in the Senate.
For the court-packing scheme proposed by vice presidential candidate Sen. Kamala Harris (D-Calif.) and others to work, there must be some form of litmus test. Democrats have pledged to add six new justices to guarantee a court that will vote to uphold or overturn cases as expected. Absent such guarantees, court-packing is a futile exercise; the whole point is to force outcomes like voting to uphold Roe. This court-packing rationalization has reached truly Orwellian levels, with former White House counsel John Dean insisting that, by manufacturing a new ideological court majority, Democrats would "depoliticize" it.
Litmus-testing and court-packing would "honor" Ginsburg by destroying the court she loved. It would obliterate an institution that has preserved this country's stability and continuity. The court has performed this vital role based on its legitimacy and authority with Americans - a legitimacy that will evaporate if Democrats impose litmus tests or pack the court.
Former Vice President Joe Biden has been asked repeatedly whether he supports court-packing calls and has repeatedly refused to answer, despite previously denouncing such plans. In Tuesday's debate, when moderator Chris Wallace pressed the question, Biden again refused to answer and gave a puzzling response: "Whatever position I take on that, that'll become the issue. The issue is the American people should speak." Many Americans would not vote for a candidate who considers - let alone supports - a court-packing scheme. Yet, Biden refuses to give his position on a major issue that was raised by his running mate and other leading Democrats.
Ginsburg articulated her rule on not answering questions about specific cases or interpretations because she rejected litmus tests as unethical pledges. At the time, Democrats like Alabama's Sen. Howell Heflin praised her position. Now, to "honor" her, Democrats propose packing the court and demanding assurances from nominees on cases like Roe, two positions Ginsburg staunchly opposed. What is left is not principle but raw power - and both the court and the country will be the worse for it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
usual hypocrisy of 'teh' racist, marxist DPST's.
Article speaks for itself
DPST's are out to destroy the Constitution and take over a country indoctrinated by their LSM propaganda in a marxist totalitarian state.
Destroying 'teh' SC is a necssary step in their plans.
If they get 'teh' Senate and POTUS - it may well be the end of representative democracy
Democrats would destroy Supreme Court with scheme to pack justices
