Just over a year ago, President Trump nominated D.C. Court of Appeals Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the U.S. Supreme Court. Lunacy ensued
, a lunacy well documented in the just-released book "Justice on Trial" by Carrie Severino and Mollie Hemingway.
But outside the Court, which completed its 2018 term in late June, the lunacy continues. Liberal groups are demanding that Congress investigate Justice Kavanaugh’s conduct during his confirmation hearings. And even worse, the ill-advised notion of court packing has resurfaced.
Court packing was a bad idea in 1937 and it has not improved with age.
Upset that the U.S. Supreme Court has a 5-4 conservative majority (depending on the case, of course), several of the two dozen Democrats hoping to win their party’s nod to run against the president next year are getting behind the idea that the Court needs more justices.
This is a dangerous continuation of the sore-loser mentality that has gripped the Democrats since Trump surprised everyone by beating Hillary Clinton in 2016. First the loser party seized on the idea of doing away with the Electoral College. Now its sights have been set on the nation’s highest court.
South Bend Mayor Pete Buttigieg is the main proponent of packing the Court with six more judges, bringing the total to 15. Under his plan, the Democratic leadership would choose five judges, the Republicans would choose another five, and those 10 justices would nominate the remaining five.
This wasn’t his idea, and it’s not the first time that packing the Court with an additional six justices has been suggested.
In 1937, watching his Depression-era New Deal legislation falling to Supreme Court decisions, President Franklin Delano Roosevelt hatched a plan to add up to six justices to the court.
The Judicial Procedures Reform Bill of 1937 called for adding an additional justice for every sitting justice who was older than 70 years and six months and had served for at least 10 years.
These days we’d call that ageism but even then, Americans realized it was a bad plan.
“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” Supreme Court expert Barbara A. Perry said in a 2018 article on History.com.
“It was never realistic that this plan would pass. Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”
Now it’s the overreaching presidential candidates who are looking to reshape the Court, at the urging of two liberal groups, Take Back the Court (originally named Pack the Courts) and Demand Justice.
Buttigieg’s plan comes from a proposal advanced by Daniel Epps and Ganesh Sitaraman in an article in the Yale Review titled “How to Save the Supreme Court.”
The law professors at Washington University and Vanderbilt, respectively, describe the impact of Brett Kavanaugh’s confirmation as “seismic,” and insist the Court must be remade to be saved.
The authors have two ideas.
The first, inauspiciously, is called the Supreme Court Lottery.
I quote from their paper:
“Under this reform, every judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court. The Supreme Court would hear cases, but through a panel of nine justices selected, at random, from all the justices. Once selected, the justices would research and prepare cases from their home court of appeals chambers before traveling to Washington to hear oral arguments for two weeks, when another set of judges would replace them. The panel members would then return to their home chambers to complete their opinions. In addition, a 7-2 supermajority of the Court, rather than a simple majority, would be needed to overturn a federal statute.”
The word chaos comes to mind, doesn’t it?
The second proposal they labeled the Balanced Bench, and it’s the plan Buttigieg has embraced.
“The Supreme Court would start with ten justices. Five would be affiliated with the Democratic Party, and five would be affiliated with the Republican Party. These ten justices would then select five additional justices chosen from current circuit court (or, possibly, district court) judges. The catch? The ten partisan-affiliated justices would need to select the additional five justices unanimously, or at least by a strong supermajority requirement. These additional justices would be chosen two years in advance, to serve for one year.”
Both of these ideas are bad ones, and I have no doubt Americans would oppose court-packing today as vehemently as they did in 1937.
But the fact that such a ludicrous idea has been embraced by a number of Democrat candidates underscores, once again, how important the 2020 election is to the future of our nation.
The Democrats have shown themselves to be sore losers willing to remake the very institutions that preserve our democracy, including respecting the office of the President. But the real worry is what will happen to our nation if they should ever find themselves back in control.
But if the Democrats push too hard on plans to change how the Supreme Court functions, their efforts may well backfire, given the fact that a substantial portion of voters who elected President Trump were motivated by the opportunity to shape the High Court.
Every election is important, but when voters go to the polls next year, we will quite literally hold the fate of our democracy in our hands.
Fr. Frank Pavone is one of the most prominent pro-life leaders in the world. He became a Catholic priest in 1988 under Cardinal John O’Connor in New York. In 1993 he became National Director of Priests for Life. He is also the President of the National Pro-life Religious Council, and the National Pastoral Director of the Silent No More Campaign and of Rachel’s Vineyard, the world’s largest ministry of healing after abortion. He travels to about four states every week, preaching and teaching against abortion. He broadcasts regularly on television, radio, and internet. He was asked by Mother Teresa to speak in India on abortion, and was asked by then-candidate Donald Trump to serve on his Pro-life and Catholic advisory councils. He has served at the Vatican as an official of the Pontifical Council for the Family, which coordinates the pro-life activities of the Catholic Church. To read more of his reports — Click Here Now.
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