Mitch McConnell

Packing the Court

Among all the victims of modern American society, perhaps language is the most critical. For without an accepted means of communicating, there is little to no hope that any other problems can be solved. Unfortunately, Americans have become careless, if not outright lazy, in their use of language. It is in this context that we need a correct definition and understanding of packing the court.

Within hours of Justice Ruth Bader Ginsburg’s death, President Trump and Senate Majority Leader Mitch McConnell stated they would fill her seat as soon as possible—before the election. In response many people have suggested that Democrats should add seats to the high court if they win both the Senate and the White House in the current election. That was met with hysterical cries. The Democrats want to pack the court!

Of course, the Constitution does not designate the number of seats on the Supreme Court. That is left for Congress to determine. Over the history of the United States the number has ranged from five to ten. The current configuration of nine was set in 1869.

It has been argued by some that there is a difference between packing the court and stacking the court. Under this distinction, adding seats to the Supreme Court would be “packing”, while loading the lower courts with right wing ideologues is “stacking.” The distinction is nominal, at best. Although it does allow for a comparison between stacking the court and stacking a deck of cards. An astute observer would recognize that both are cheating. More substantively, though, the terms packing and stacking are interchangeable. But what is packing?

Over the last three and a half years Mitch McConnell has directed the Trump Administration’s efforts to pack the federal bench, often with unqualified individuals who are chosen simply for being young ideologues who will do the bidding of the Republican Party for decades to come.

McConnell, of course, has done more than just pack the lower courts. First he blocked President Obama’s legitimate and moderate appointment of Merrick Garland to the Supreme Court. Secondly, McConnell and Trump moved with unparalleled rapidity to fill the seat left vacant by Ginsburg’s death. In fact, Trump was uncharacteristically honest in stating his reason. Looking back to 2000 for inspiration, he said he wanted the Supreme Court to decide the 2020 election regardless of the peoples’ vote.

What gets lost in the shuffle of accusations about Democrats packing the court is the reality that Trump is doing exactly what every other dictator does in an attempt to retain power. He is packing all federal courts. It is classic authoritarianism. You know. The what “can never happen here” but is actually happening here. It is only when the courts are packed with Trump appointees that he can take the next steps toward establishing an autocracy and dismantling the Constitution of the United States.

The issue regarding a new SCOTUS appointment is not judge Barrett’s qualifications. Unlike many of the judges Trump and McConnell secured for the lower courts, she is competent. The issue is the demise of democracy. It is neither extreme nor hyperbolic to declare that if a Republican dominated Supreme Court appoints Trump president, then American democracy is dead.

Another reason to fear Trump’s packing of the courts is the reality that the federal courts—all the way up to the Supreme Court—are becoming less and less representative of the American people. Indeed, they are simple out of touch with reality. From the Citizens United decision to the gutting of the Voting Rights Act, the American people are being dismissed from the democratic process. Three Trump appointed appeals judges sided with Texas governor Abbott’s decision to limit ballot drop off boxes to a total of one per county. Note that Harris County which includes the city of Houston has a population of more than 4 1/2 million people and covers a territory of 1,777 square miles.

What happens to America when we can no longer rely on the courts to guarantee the rights of all our people? Even before Trump's presidency, America began slipping into an oligarchy. With Trump we are headed straight to dictatorship.

I can appreciate a nominee in a senate hearing not answering questions about legislative issues that might come up before the Supreme Court. Many of Barrett’s predecessors have done the same. But for a moment set aside Roe v. Wade, set aside the Affordable Care Act. Instead of legislative issues, look no further than the Constitution, itself.

No, a president cannot issue an order saying the Constitution is null and void and declare himself president for life. Not unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

Yes. The president must accept the vote of the people and commit to a peaceful transfer of power. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. The president does not have the authority to unilaterally delay an election. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution.

No. Armed people cannot intimidate voters at the polls. Unless Amy Coney Barrett is confirmed. She refused to defend the Constitution. Maybe Amy Coney Barrett is not qualified after all.

The examples above demand that Amy Coney Barrett not be confirmed to the Supreme Court. If she is confirmed, during her oath of office she will swear to defend the Constitution of the United States. But her testimony in the senate hearing room suggests otherwise. One might conclude that either there are two Amy Coney Barretts or, like the president she seems to admire, there is only one Amy Coney Barrett who does not speak the truth.

If she is confirmed Trump and McConnell will have succeeded in packing the court. If she is confirmed the Democrats will have no choice but the expand the court. Not pack it. Expand and reform the court so that it is more representative of the American people.