On July 28, I wrote a column about the Supreme Court and how the Democrats were serious about packing the court. In my July column, I also pointed out that it was questionable about whether Vice President Joe Biden could stand up to the far left.
Less than a week after Justice Ruth Bader Ginsburg's death, Vice President Biden refused to the answer a question about whether he supports packing the Supreme Court. He refused to answer this question again in the first presidential debate. It's clear now that the independence of the judiciary is on the ballot. Republicans and Democrats must work together to prevent this from happening.
When President Franklin Roosevelt tried to pack the court in 1937, it should be noted that the Democrats dominated the Congress at the time. In the 1936 election, the Republicans won only 89 out of the 435 seats in the House and just 17 out of the 96 seats in the Senate. In the 1936 presidential election, Franklin Roosevelt won 46 out of 48 states.
At the peak of his power, Roosevelt tried to pack the court. He failed because enough Democrats put country above party and also because one of the swing justices started to uphold the New Deal.
I was wrong to believe that Roosevelt's defeat in the 1937 was enough to deter the Democrats from ever trying this again. I think it is obvious that the Democrats will try court packing again.
Even if President Trump's nominee, Amy Coney Barrett, is confirmed, and even if Trump wins in November, court packing will continue to exist like a benign tumor against our Constitution. We must find a way to remove this threat before it becomes malignant. It might take years for this scenario to unfold, but it will happen if we don't stop it.
I propose a compromise to our current national crisis. I propose we delay the nominee until after the election in exchange for a constitutional amendment that will set the number of Supreme Court justices to nine members. This constitutional amendment will have to pass both houses before the election.
While the number of justices fluctuated in the first few decades of our nation's history, the number of justices has remained unchanged at nine since 1869. If we could set that number to nine permanently, it would strengthen the independence of the judiciary.
If the Democrats refuse this compromise, or delay the vote, then the Republicans will be more than justified to jam the nominee through. If the Democrats accept this compromise, it will preclude the possibility of another court packing fight.
If President Trump wins, he can proceed without delay and get a vote by late November or December. If he loses the election, they will have to wait for the next president to fill the vacancy.
Any short-term victory with Amy Coney Barrett will taste as bitter as defeat should the Democrats ever be in position to successfully pack the Supreme Court in response. The checks and balances in our Constitution were designed to protect individual liberties against what James Madison referred to, in Federalist 10, as "the superior force of an interested and overbearing majority." That is why we must have an independent judiciary.
It may already be too late for Democrats and Republicans to accept this compromise. Without it, I fear we have lost a great opportunity to prevent another court packing fight in the future.
When Justice Antonin Scalia died in 2016, I supported the delay not because it was an election year, but because Scalia's death would have given the Democrats five seats on the court. I didn't trust the Democrats to pick a justice that would be bound by the text of the Constitution.
Today, I support the confirmation of Amy Coney Barrett precisely because I believe she is a textualist, like her mentor Justice Scalia. The court is not nearly as textualist as it appears. As Senator Ted Cruz wrote just this week in an opinion piece:
John Roberts has already become the new Sandra Day O'Connor, and some observers fear Kavanaugh may join him as the new Anthony Kennedy, together as the swing justices and arbiters in the middle of the Court. And, as the recent Title VII case illustrated — just as it would vary whether it was Kennedy or O'Connor siding with the liberals — it could also sometimes be Gorsuch doing so. It's too early to make that conclusion, but time will tell. I fervently hope that's not the case.
Even without court packing, appointing a textualist could be a hollow victory. The swing justices might side with the three liberal justices to prevent another court packing fight as they did in 1937. Conservatives must dedicate themselves to protecting the Constitution from activist judges as well as court packing.
Robert Zapesochny is a researcher and writer whose work focuses on foreign affairs, national security and presidential history. His work has appeared in a range of publications, including The American Spectator, the Washington Times, and The American Conservative. For several years Robert worked closely with Peter Hannaford, a senior aide to Ronald Reagan, as the primary researcher on four books and numerous columns. Robert has also worked on multiple presidential, national and statewide campaigns, including as a field office staffer for the Bush-Cheney campaign. Due to his own Russian-Jewish heritage, Robert has a keen interest in the history of U.S.-Soviet relations. In 2017 he was the co-organizer of an effort that erected commemorative statue of Ronald Reagan and Mikhail Gorbachev in Moscow. Robert graduated with a major in Political Science from the University at Buffalo, and received his Master's in Public Administration, with a focus in healthcare, from the State University of New York College at Brockport. When he's not writing, Robert works for a medical research company in Rochester, New York. Read Robert Zapesochny's Reports — More Here.
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