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If Biden wins the Presidency and Democrats flip the Senate, their aim should be to unpack the courts. (Photo: Zach Gibson/Getty Images)

If Biden wins the Presidency and Democrats flip the Senate, their aim should be to unpack the courts. (Photo: Zach Gibson/Getty Images)

Biden Can’t Let Republican Court Packers Intimidate Him Into Pledging Not to Unpack the Courts

Mitch McConnell subscribes to the premise that "the easiest way to change the law is to change the judges."

Miles Mogulescu

Amy Coney Barrett’s Supreme Court nomination is the culmination of a decades-long campaign by Republicans and their oligarchic funders to pack the Federal courts with extremist right-wing judges who will change the law by interpreting it to favor the interests of corporations and billionaires.

It is Republicans who are the true court-packers. Now they’re deceptively accusing Vice-President Biden of planning to pack the courts and trying to intimate him into pledging he’ll never consider reforming the Federal courts in order to unpack them. If Republican browbeat Biden into making such a pledge, they can guarantee that their own court-packing will determine the law for decades to come, no matter who wins elections.

It’s time for Biden and the Dems to call bullshit!

It’s Republicans who are the true court-packers. If Biden wins the Presidency and Democrats flip the Senate, their aim should be to unpack the courts.

As the presumptive front-runner, Biden has tried to tiptoe around the issue. On Monday he told a Cincinnati TV station that “I’ve already spoken on—I’m not a fan of court packing, but I don’t want to get off on the whole issue. I want to keep the focus—the president would like nothing better than to fight about whether or not I would in fact pack the court.” Ambiguous, at best.

If Biden wins the Presidency and the Democrats flip the Senate, there are a number of different ways the Democrats can begin to unpack the courts.

There’s some tactical logic in keeping the focus on Republicans packing the Court by cramming in Barrett’s confirmation as citizens are already voting, while doing nothing to help Americans struggling with Covid and economic desperation. But it may be impossible to keep dodging the question for three more weeks, especially if the media pretends to be even-handed by repeatedly asking the question.

More importantly, Biden and the Dems are ceding the framing of the issue to the Republicans by letting them claim that the Dems are the court-packers and the Republicans are just appointing umpires to call balls and strikes.

If Biden wins the Presidency and the Democrats flip the Senate, there are a number of different ways the Democrats can begin to unpack the courts.

One way is to increase the number of Supreme Court Justices in order to correct the Republican’s theft of seats by refusing to even consider the moderate Merrick Garland and forcing the confirmation of Barrett only a few weeks before voters have their say on whether they prefer Biden or Trump to fill Ruth Bader Ginsberg’s seat.

No less a figure that former Attorney General Eric Holder Tweated, “If the court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.”

But adding Justices is only one way to unpack the Courts. Another, perhaps less controversial way, would be to put term limits on Justices service on the Supreme Court, combined with greatly expanding the size of the Court.

A number of House Democrats are proposing legislation providing that after 18 years on the Supreme Court, if Justices want to continue lifetime service as Federal judges, they would rotate off the Supreme Court and onto a lower court. It would also provide that every President would have the chance to nominate two Justices during each 4-year term, one in the first and one in the third year of their term. This would remove much of the partisanship from the appointment process and prevent Justices from impacting the law, decades after the President who appointed them left office or even died.

A more indirect way would be to grant statehood to The District or Columbia and Puerto Rico. This would represent justice in its own right, since residents of those jurisdictions are tax-paying American citizens without voting representation in Washington. But it would also add 4 new Senators, diminishing the impact of the current situation where the Republican Senate “majority,” which is about to confirm Barrett on a party-line votes, was elected by nearly 15 million fewer voters than the Democratic “minority”.

The point is that there is more than one way for the Democrats to unpack the Court. If Biden can’t duck the issue pre-election, a good answer would be that the Courts need to be unpacked from Republican packing: After the election, he will assemble an advisory committee of Constitutional lawyers, law professors, legislators, and citizens to consult on the best possible reforms for unpacking the courts. And after considering all the options, he will propose to Congress the best way to unpack the Courts to make them better reflect the values of the majority of voters instead or a minority of right-wing Republicans and their oligarchic funders.

As former Chair of the Federal Election Ann Ravel said, “Today the Court is controlled by justices chosen specifically because they’d listen to the rich and powerful. One of them sits in Justice Merrick Garland’s rightful seat. Two others have been credibly accused of sexual misconduct. Why should these be the judges who sit on high and decide our rights and the meaning of the Constitution? To truly change our broken political process, we need a Court that believes all of us should have a voice.”


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Miles Mogulescu

Miles Mogulescu

Miles Mogulescu is an entertainment attorney/business affairs executive, producer, political activist and writer.

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