Packing the Supreme Court
Like Harris, former Vice President Joe Biden has also repeatedly dodged the court-packing question, stating on Thursday that he won't even deign to tell American voters his position until after next month's election. In other words, Biden-Harris won't tell us the obvious: They plan to jam through court-packing—their radical assault on judicial independence—if they win in November.
The court-packing drumbeat by many on the Left—which started well before the current vacancy—became so loud that even the late Justice Ruth Bader Ginsburg felt compelled to make an extraordinary public denouncement of it last year.
President Donald Trump has enjoyed historic success in filling judicial vacancies, prompting this liberal panic. Indeed, President Trump has appointed a near record-shattering 218 Article III judges to the federal bench. These include Supreme Court Justices Neil Gorsuch and Brett Kavanaugh—and soon, Justice Amy Coney Barrett. This is in addition to 53 judges confirmed to the critically important federal circuit courts—the final stop for more than 99 percent of federal appeals. Flipping the majority on these courts to jurists who believe in the rule of law, rather than the will of agenda-driven liberal activists, has the Left searching for any means by which to retake the judiciary. Indeed, federal judges are our last line of defense against government overreach and mob rule.Enter court-packing. The call to add seats to the Supreme Court is so extreme that even President Franklin D. Roosevelt was unable to achieve it at a time when Congress rubber-stamped the rest of his agenda. In 1937, FDR proposed adding six justices to the nation's highest bench (one for every justice over the age of 70), to flip the Court to one that would allow his unconstitutional New Deal policies to stand. Congress—overwhelmingly controlled by FDR's own party—rejected the idea, and the number nine has remained secure...until now.
How is such a radical idea even possible? The Constitution does not specify how many justices sit on the Supreme Court. We have not always had nine Supreme Court justices. At first, we had six justices, all appointed by President George Washington. Over the next 80 years, the number fluctuated, but it has remained at nine since 1869—more than 150 years ago, right after the Civil War.
If Democrats, who already control the House of Representatives, maintain that majority and also retake the Senate and the White House, Americans should expect them to attempt this extreme court-packing scheme. Congress, led by a Speaker Nancy Pelosi (D-CA) and a Senate Majority Leader Chuck Schumer (D-NY), would determine the number of justices. A President Biden would certainly sign any such legislation passed by a Democrat-controlled Congress. This is not hysteria: Biden and Harris include "structural court reforms" in their 2020 Democratic Party platform.
Currently, the Senate—created by our Founders as the "cooling saucer" for the hot tea sent over by the House—operates with a procedure known as a filibuster. In short, a filibuster requires approval from 60 of the 100 senators as a procedural hurdle to clear in order to pass most legislation. Any court-packing proposal is subject to the filibuster rule. Assuming that Senate Republicans employ the filibuster during a Biden-Harris administration, Democrats could respond by "going nuclear"—eliminating the legislative filibuster and lowering the vote threshold from 60 to 51.
The Senate has operated with the legislative filibuster since the 1830s. With it eliminated, the Senate could pass a court-packing scheme by a simple majority vote. The liberal-controlled House of Representatives, which already operates by a simple majority, also would pass it—and a President Biden (or a President Harris, if he doesn't make it that long) would sign it. The number of justices would then change from nine to 11 or more—new seats the president would quickly fill with left-wing politicians in black robes.
Court-packing will lead America to a very dangerous dead end, as these liberal justices will take away our constitutional rights to speak, associate, worship and protect our families. And that's the Democrats' plan, even if Biden and Harris won't publicly admit it. The year 2020 has proven that Democrats have no qualms about destroying America as we know it.
Mike Davis is the founder and president of The Article III Project (A3P). He is the former chief counsel for nominations to Senate Judiciary Chairman Chuck Grassley (R-IA). Davis clerked for Justice Gorsuch, both on the Supreme Court and on the Tenth Circuit. He is also the president of the Internet Accountability Project.
The views expressed in this article are the writer's own.
Mike Davis , Founder, The Article III Project and president and founder, Internet Accountability Project