Packing the Supreme Court

OPINION:

The ’progressives’ controlling today’s Democratic Party have little knowledge of our respect for the Constitution, history or institutions. They want what they want and they want it now — even if it means ignoring or rewriting the rules under which the nation has operated so successfully since its founding.

Progressives would do away with the Electoral College and nationalize voter registration and the electoral system. The idea that voters in “fly over country” should have a say in how they would run their town, state and the country offends them. They see the states as mere administrative jurisdictions whose function should be to implement rules, regulations and legislation passed in Washington unless, of course, Washington doesn’t move as fast as they desire. Then more “progressive” jurisdictions willing to defy the “old order” should be both tolerated and celebrated.

Thus, “sanctuary cities” that flaunt the law are celebrated. States that try to help enforce existing immigration laws are hauled into court and reminded that such policies are the responsibility of the federal government and not the states.

The looming roadblock to much of the progressive agenda is a Supreme Court made up of nine men and women with the responsibility of measuring their policy agenda against that old musty, out of date Constitution few have read and most ignore. Presidential wannabe “Beto” O’Rourke has already openly questioned wisdom of relying on the Constitution and suggested it may be time to rewrite it.

That isn’t likely to happen any time soon, so the more inventive progressive minds have been contemplating ways to change the Supreme Court itself to make it a reliable supporter of their policy goals. Progressives had hoped to accomplish this by preventing the president from appointing justices with views different from their own, even if meant relying on unsubstantiated charges to derail the nominees or suggesting that their religious beliefs should disqualify them for appointment to the federal bench. These efforts failed spectacularly in the Kavanaugh case leading many progressives to contemplate even more radical ways of undermining the work of a court that could thwart some of their schemes.

Many progressives dread the possibility that President Trump and the Republican Senate may have an opportunity to appoint one or more additional justices, strengthening a majority insistent upon following the letter and spirit of the Constitution. If they win control of the White House and the Senate in 2020, they are now considering simply enlarging the court from 9 to 11 or even more justices, packing it with progressives, and getting back to the job of fundamentally changing our political system without having to worry about that pesky old Constitution.

The scheme may seem overly risky and perhaps farfetched to those familiar with President Franklin D. Roosevelt’s attempt to pack the court back in the 1930s. The usually politically adroit Roosevelt, frustrated by the then-conservative court, wanted a court majority more favorable to his agenda. He tried to enlarge the court and pack it with his partisans. The backlash forced him to withdraw the proposal.

Today’s Democratic progressives seem willing to try again. Five of this cycle’s Democratic presidential wannabes are already on the record as willing to consider such a move. They are Kirsten Gillibrand, Kamala Harris, Elizabeth Warren, “Beto” O’Rourke and Pete Buttigieg. Many of the other candidates will undoubtedly follow as the idea catches fire within the fever swamps that make up the base of the new Democratic Party.

Should Democrats win the White House and the Senate next fall, there will be little to stop them from packing the court. As VOX correspondent Dylan Matthews pointed out in an analysis of the arguments for and against packing the court, “There is nothing in the Constitution mandating that the Supreme Court have nine members, and a simple act of Congress could increase that number to 11, or 15, or even more. That effectively creates a way for a political party in control of the House, Senate, and presidency to add a large number of ideologically sympathetic justices to the Court, all at once.”

The idea began to surface on the left with the failure of President Barack Obama’s attempt to confirm Merrick Garland and picked up steam once Brett Kavanaugh joined the court. As a Twitter posted by The New Republic put it, “It’s time to pack the court.”

Court packing has worked in other countries for Hugo Chavez and others troubled that their schemes might not pass political muster. Although his plans to build a socialist Venezuela haven’t worked out, Chavez is admired by many American progressives. He was able to ignore the rule of law in Venezuela by increasing the number of justices on his court from 20 to 32 and packing it with his allies.

Give America’s admirers of socialism a chance and they are liable to follow Venezuela. After all, it worked so well for the people of South America.

• David A. Keene is an editor at large for The Washington Times.