One early takeaway from the early 2020 cycle is that for all of the movement progressives have made into getting top candidates to lend support to lefty policies like the Green New Deal and Medicare for All, most Democratic candidates have been resistant to institutional reforms that would likely need to happen in order for that agenda to become a reality.
One of those institutional reforms that’s increasingly getting Democratic support, however, is court-packing.
Politico reported on Monday that three top Democratic senators and presidential candidates—Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand—“would not rule out expanding the Supreme Court if elected president,” meaning that they could push for more seats to be added to the court. That refusal to rule it out comes just days after Rep. Beto O’Rourke, immediately after entering the presidential race, floated the idea of having up to as many as 15 seats on the Supreme Court. Even former Attorney General Eric Holder has backed the idea.
“We are on the verge of a crisis of confidence in the Supreme Court,” Harris told Politico. “We have to take this challenge head on, and everything is on the table to do that.”
Even in an institution as full of norm-humpers as the United States Senate, it’s not difficult to see why Democrats are increasingly embracing this idea. After all, Senate Majority Leader Mitch McConnell effectively stole a Supreme Court seat from the party after Antonin Scalia’s death in 2016, a decision that some Republicans implied could’ve lasted for all four years of a Hillary Clinton term. Then, when Donald Trump won the presidency, McConnell got rid of the 60-vote threshold for Supreme Court nominees, which was used not only to seat Neil Gorsuch but also ram through the confirmation of accused sexual predator Brett Kavanaugh.
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Warren, who also floated the idea of adding appellate judges to Supreme Court cases, told Politico. “It’s a conversation that’s worth having.”
Of course, this isn’t exactly the most popular position in the Senate Democratic caucus yet. Other Senate presidential hopefuls, like Cory Booker and Amy Klobuchar, downnplayed the idea. Klobuchar, in particular, said that the “most reasonable thing is to win the elections and to try to stop the bad judges,” which didn’t exactly work out for Barack Obama or former Supreme Court nominee Merrick Garland.
Potential presidential candidate Colorado Sen. Michael Bennett, meanwhile, took the hardest line against the idea. As the Washington Post reported earlier today, after Bennet did a town hall this weekend in New Hampshire:
Sen. Michael Bennet (D-Colo.) slammed his head on the table four times when I asked what he thought about other Democratic presidential contenders embracing the idea of expanding the Supreme Court.
“Having seen up close just how cynical and how vicious the tea party guys and the Freedom Caucus guys and Mitch McConnell have been, the last thing I want to do is be those guys,” he said during an interview at a coffee shop here the Friday night before last. “What I want to do is beat these guys so that we can begin to govern again.”
This is where Bennet is wrong: What makes “those guys” so bad isn’t the fact that they’re willing to destroy norms. Those norms have already been subverted many times over. What makes groups like the Freedom Caucus and people like McConnell so bad is their ongoing attempt to make themselves immune to the question of whether or not the country actually wants them in power, whether it’s through their own ongoing version of court-packing at the lower levels, or through rigging elections, or by other means.
What makes them even worse is what they want to do with that power: make the stamp of corporate fascism they want to brand the United States with permanent.
Expanding the court is not just a correction of the Republicans’ blatant disregard for those norms Senate Democrats hold so dear. (The medical term for this is “Senate brain.”) It’s a way to ensure that the next four decades of Democratic policy, no matter how radical it is, isn’t struck down over and over by a rotating cast of Federalist Society members. The GOP is playing to win; it’s high time the Democrats start doing that, too.