President Donald Trump has announced he will announce a nominee to fill the seat of the late Supreme Court Justice Ruth Bader Ginsburg on Saturday. Sen. Lindsey Graham (R-S.C.) said that Republicans already have the votes to confirm Trump’s nominee and that his Judiciary Committee will rush the nominee to the Senate floor before Election Day. Some Democrats have threatened to add more justices to the Supreme Court if Trump successfully replaces Ginsburg.
Democratic nominee Joe Biden refused to rule out packing the Court, suggesting that he is open to altering the terms of the deal in U.S. politics. A reporter asked Biden whether he would pack the Court if he wins the 2020 election and if Democrats take control of the Senate.
“It’s a legitimate question, but let me tell you why I’m not going to answer that question,” the Democrat replied. He said he would not answer the question “because it will shift all the focus. That’s what [Trump] wants. He never wants to talk about the issue at hand, he always tries to change the subject. Let’s say I answer that question. Then the whole debate’s going to be ‘Biden said or didn’t say. Biden said he would or wouldn’t.’”
— RNC Research (@RNCResearch) September 22, 2020
Rather than answering the question, the Democratic nominee insisted that the entire question is a distraction from the real issue at hand. On the contrary, Court-packing is very much the issue at hand.
Republicans have made it clear that they will do their duty under the Constitution to consider Trump’s Supreme Court nominee. Senate Majority Leader Mitch McConnell (R-Ky.) infamously refused to consider Obama’s nominee — Merrick Garland — in 2016, arguing that a divided government (where one party controls the White House and another party controls the Senate) has not approved a Supreme Court justice in an election year. This year represents a different scenario, however, because Republicans control both the White House and the Senate. Contrary to popular belief, McConnell is not a hypocrite on this issue, although some Republicans may be. Meanwhile, most Democrats who wanted a vote on Obama’s nominee now want the Senate to block Trump’s nominee.
Democrats call for packing the Court
Deprived of the ability to stop the confirmation, Democrats are threatening to upend the system.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Sen. Ed Markey (D-Mass.) tweeted.
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
“If Sen. McConnell and [Senate Republicans] were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” Rep. Jerry Nadler (D-N.Y.) tweeted.
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe
— Rep. Nadler (@RepJerryNadler) September 19, 2020
Sen. Dick Blumenthal (D-Ct.) said, “I think we need to talk amongst ourselves before we talk publicly, but as many have said, nothing’s off the table.”
On Saturday, Senate Minority Leader Chuck Schumer (D-N.Y.) told members of the Democratic Caucus that the party would seek retribution if McConnell went forth with filling the seat before the election. “Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year,” he said, The Washington Examiner reported.
Like Biden, House Speaker Nancy Pelosi (D-Calif.) did not rule out packing the Court. When MSNBC’s Chris Hayes asked her about “adding new members to the Court,” Pelosi said, “I think that we have to think short term and long term.” In other words, the House speaker may consider packing the Court to be part of Democrats’ long-term strategy.
— RNC Research (@RNCResearch) September 22, 2020
What’s the big deal?
Some Democrats openly call for packing the Court, while the leaders of the party seem unwilling to disavow such a radical strategy. Why should Americans care?
Americans should remember how the country got to this point. Trump’s focus on the Supreme Court did not emerge in a vacuum. The president pledged to nominate originalist justices who interpret the Constitution according to its original public meaning, not according to their partisan goals. In doing so, he is reversing decades of “living Constitution” jurisprudence where judges chose to unilaterally amend the Constitution, reading their policy preferences into the document.
In Roe v. Wade (1973), for instance, the Supreme Court reinterpreted the 14th Amendment as a right to abortion. The Constitution does not mention abortion. Ironically, at the time the 14th Amendment was being ratified, abortion laws were being tightened, not loosened. Furthermore, the plain text of that amendment — which states that no state can “deprive any person of life, liberty, or property, without due process of law” — not only fails to mention abortion, but could be used as an argument to defend the lives of unborn babies.
To achieve this ruling, the Court stretched the “penumbras of the Bill of Rights” to include a right to privacy — a legacy of the 1965 contraception case Griswold v. Connecticut — and extended that into a right to abortion.
By reinterpreting the Constitution in this fashion, left-leaning judges were unilaterally altering the terms of the deal on which American politics is based. It did not matter that millions of Americans oppose abortion, that states had different laws restricting abortion, or that the Constitution never explicitly mentioned abortion — the Supreme Court unilaterally made law in opposition to the will of the people expressed through their elected representatives.
If Americans wanted to add abortion into the Constitution, they could amend the document using Article V of the Constitution. Instead, the Supreme Court decided to do so without a single vote of Congress or state legislatures.
This kind of grotesque abuse motivated conservatives to support Republicans like Donald Trump. Trump may have won the 2016 election in part because more Republicans turned out to support the man who released a list of originalist potential nominees. By contrast, Joe Biden has pledged to nominate judges and justices who adhere to the logic of Roe v. Wade, not just to its result.
Trump’s replacement of Ginsburg represents the final victory of originalism over the “living Constitution,” and liberals cannot accept it.
Fox News host Mark Levin explained just how radical a notion that is.
“Now, what are they threatening? To pack the Court. The last president to do that was Franklin Roosevelt, and you know who stopped him? The Democrat Congress,” Levin explained. He noted that the Democrats in Congress put country over party on the issue, but now it seems the Democrats aim to put party over country.
“This party, the Democrat party, is so far off the rails, it is appalling,” he warned. “They want to eliminate the Electoral College, that’s in the Constitution. … They want to overwhelm the state voting systems with mail-in votes that they know will create all kinds of chaos on election night. They’re telling Biden never concede, Hillary Clinton, the rest, ‘don’t concede under any circumstances.’”
“They want to end the Senate filibuster, they want to add four Democrats to the Senate from D.C. and Puerto Rico. The Democrat Party is the party of antifa, the party of Black Lives Matter,” Levin added. “You have Nancy Pelosi calling federal law enforcement ‘stormtroopers,’ you had Jim Clyburn talking about federal law enforcement as ‘Gestapo,’ they were silent for three months while lawless riots were taking place, now they’re encouraging them.”
“So now we have a mob, and the mob has a home, and it’s called the Democrat Party,” Levin warned. “What they have in sight is not even Donald Trump, it’s our Constitution.”
The Left controls much of the commanding heights of American culture, from universities to legacy media outlets to Big Tech to corporate boardrooms. The Democrats seem to think they have a right to power. They seem intent on remaking the Constitution in their own image, altering the terms of the deal so that they can hold power without checks to their radical agenda.
It reminds me of the way Southern Democrats pushed the expansion of slavery in the decade before the Civil War. Abraham Lincoln wasn’t an abolitionist candidate — he wanted to restrain the spread of slavery, rather than abolishing it altogether. The Democrats and the South at the time had controlled Congress and the presidency for decades, overriding key compromises in their relentless push to open up more land for slavery to expand.
When Lincoln won in 1860, the Southern Democrats refused to accept restraints and the check on their power. Instead, they violated the Constitution, betraying the very federal government they had so recently dominated.
Like the Southern Democrats in 1860, Democrats today cannot brook any restraints on their power, so they’re threatening to change the rules to get their way. Joe Biden has proven, time and time again, that he will bend over for the radicals in his party. He won’t promise to not pack the Court if he wins.
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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.