Some opposed to Judge Amy Coney Barrett’s Supreme Court nomination are blurring the line between confirming a justice to fill a vacancy and "packing the court."
Using this nomination to justify court packing would be a huge mistake.
The real underlying issues relate to “checks and balances” and “separation of powers.”
These are ideas imbedded in our constitutional system of government.
They’re also essential to the successful American experience in representative government.
The continued success of this experience depends on all of us abiding by these basic principles. Without checks, balance is threatened. Without separation, power is unfettered.
Our constitutional Founders understood that.
They deliberately divided our national government into three separate branches designed to balance one another against the accumulation of too much power in one place or person.
That’s why we have a president, not a king; a Congress, not a politburo; an independent judiciary, not star chambers or kangaroo courts.
If we knock one leg off this executive/legislative/judicial stool, the whole thing tips over.
That’s what could happen if our leaders in Washington go down the path of tinkering too much with our carefully checked and balanced system, if they fail to maintain the deliberate separation of powers.
The most recent example is talk of increasing the size of the U.S. Supreme Court.
The argument goes like this: since Republicans are pushing through a conservative Supreme Court nominee to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, Democrats will be justified in expanding the size of the court with liberal justices to offset its conservative tilt.
This is a tit-for-tat approach.
It may sound appealing to Democrats, but it could easily lead to an unravelling of the balance of power in Washington, remaking the Supreme Court into not an equal branch of government, but an appendage of executive and congressional will.
Suppose Democrats sweep to power in Washington, controlling both the White House and Congress, and the high court is increased from nine to eleven members by this one-party government.
It may more easily bend to the will of Congress and the president, but the high court will have lost its essential independence as a co-equal branch.
It will in essence have become an arm of the other two branches.
Fast forward a few years and imagine the presidency and the Congress swing back to Republican control. The new one-party government decides to increase the court from 11 members to 13 to get its pet initiatives through.
It passes a different healthcare bill and changes the abortion laws, and then guarantees their passing constitutional muster by loading the court with sympathetic justices.
Over time the U.S. Supreme Court becomes a bloated mess with 17 or 19 members, or whatever number is needed to uphold the policies of the contemporaneous administration and Congress.
America came perilously close to this situation once before.
During the 1930’s President Franklin D. Roosevelt was frustrated that the Supreme Court kept striking down some of his New Deal initiatives as unconstitutional.
When FDR tried to "pack the court" with sympathetic judges, the national backlash was swift and certain. FDR wisely backed down, and judicial independence was maintained.
Maybe we Americans take our form of government too much for granted. We expect it to survive another two hundred years just because it’s already lasted a few hundred.
Yet, what Congress and the president do can imperil our constitutional government.
Congress in particular should resist the temptation to change its own self-limiting rules.
The current Supreme Court controversy began when then Senate Majority Leader Harry Reid took advantage of his Democratic majority to remove the requirement of 60 votes to take up U.S. District Court nominations.
When the Senate swung back to Republican control, the next Majority Leader Mitch McConnell, R-Ky., decided to remove this 60-vote threshold for Supreme Court Justices as well.
That’s why a new Supreme Court justice will likely be confirmed before the upcoming election.
The next step in eroding the 60-vote requirement for Senate action would be to eliminate its application not just to judicial appointments but to all other legislative actions as well.
That might sound appealing to the next Senate Majority, but it could come back to haunt them too. Majorities shift with elections, and minority rights and privileges look a lot better when you’re in the minority.
As someone who lived with both the plusses and minuses of the Senate’s higher threshold for action, I know that tinkering with power is tempting. It’s also dangerous.
Former Senator Alfonse D’Amato served a distinguished 18-year career in the U.S. Senate, where he chaired the Senate Banking Committee and was a member of the Senate Appropriations and Finance Committees. While in the Senate, Mr. D’Amato also Chaired of the U.S. Commission on Cooperation and Security in Europe (CSCE), and served on the Senate Intelligence Committee. The former Senator is considered an expert in the legislative and political process, who maintains close relationships with Members of Congress on both sides of the aisle. He is regularly called upon for his advice and counsel, and is recognized for his incisive analysis of national and international political affairs. The former Senator will share insights gained from his years in Washington “with a clear-eyed view of the political forces that shape the world we live in today.” Read Alfonse D'Amato's Reports — More Here.
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