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Democrats Cannot Use Trump's Three Justices to Justify Packing the Supreme Court. Here's Why.

The U.S. Supreme Court building, Wikimedia Commons, Daderot.

Twitter often proves itself to be the pungent cesspool of humanity. As Democrats released their doomed bill to add four seats to the U.S. Supreme Court, bringing the number of justices from nine to 13, Twitter users loudly complained about Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The argument goes something like this: Republicans effectively packed the Court with these three justices after blocking Obama’s 2016 pick, Merrick Garland, so it’s okay for Democrats to respond in kind.

This fetid excuse for an argument does not pass the smell test, but since Democrats seem intent on sharing it, I figured I would equip you, my wonderful PJ Media VIP subscribers, with a few arguments to rip this red herring to shreds.

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First, what happened? When Supreme Court Justice Antonin Scalia died in 2016, then-Senate Majority Leader Mitch McConnell announced that the Senate would not consider lame-duck President Barack Obama’s nominee, Merrick Garland. Donald Trump famously won the 2016 presidential election, and he nominated Neil Gorsuch to take Scalia’s seat. Because Democrats had nuked the filibuster for judicial nominations, Republicans confirmed Gorsuch, as they would Kavanaugh and Barrett, by close majorities.

Shortly after Justice Ruth Bader Ginsburg passed away last year, Trump nominated Barrett to take her seat and the Senate confirmed Barrett. While some Democrats argued that Barrett’s confirmation was the most rushed process in history, that is false. Justice John Paul Stephens was confirmed 19 days after his nomination, while Justice Sandra Day O’Connor was confirmed 33 days after her nomination, comparable to the 31 days between Barrett’s nomination and confirmation.

The Barrett confirmation did not violate the notorious “McConnell rule” on Garland.

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year,” McConnell wrote last year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise,” McConnell added. “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Second, and fundamentally, while it seems like Trump got conservatives confirmed on the Supreme Court, his true achievement involved getting originalists on the Court. Trump selected justices who would apply the clear meaning of the Constitution and the laws passed by Congress, as understood at the time. Trump did not seek out activist justices who would write conservative ideas into the Constitution — that’s exactly the kind of activism Trump and his allies sought to prevent.

Democrats, however, see the Supreme Court as a kind of super-legislature, using the Constitution as a tool to drag history forward. They look back on Roe v. Wade (1973) — which struck down state laws on abortion — and Obergefell v. Hodges (2015) — which unilaterally redefined marriage — as positive steps toward progress rather than gross abuses of the Supreme Court’s power. Democrats supported the Court inventing new “rights” out of whole cloth because those rights involved abortion and same-sex marriage. The end justified the extremely unrepresentative means.

While Democrats claim their efforts to pack the Court represent the righteous anger over Republican efforts to get originalists on the bench, Democrats give away the game when they call originalism “racist” or “sexist.” By doing so, Democrats not only suggest that following the plain text of the Constitution and the laws passed by Congress is a partisan effort, but that obeying the oath to uphold the Constitution is somehow an exercise in oppression.

Third, while Republicans did use leverage to secure an originalist majority on the Supreme Court, Democrats’ “response” represents a humongous escalation.

Republicans did not pack the Court, while Democrats intend to do just that. While the Constitution does not state how many seats shall be on the Supreme Court, the Court has had nine seats since 1869. If Democrats add four more seats, that would represent an egregious assault on the federal judiciary — and Democrats are not fighting for originalism but for an activist Supreme Court.

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When Republicans rightly complain that Democrats are trying to pack the Court to ram their agenda down Americans’ throats, Democrats’ loud shouts of “What about Merrick Garland?” or “Trump packed the Court with Garland, Kavanaugh, and Barrett” are utterly off-base.