On Tuesday, Fox News correspondent Mike Emanuel revealed three different ways angry Democrats who are running for president in 2020 want to remake the Supreme Court. He ran video of Sen. Elizabeth Warren (D-Mass.), Mayor Pete Buttigieg (D-Ind.), and Sen. Cory Booker (D-N.J.) proposing radical changes in order to reverse the impact of President Donald Trump’s two Supreme Court justices.
“Some of the anger on the Left is clearly about the Supreme Court,” Emanuel said. “Judge Merrick Garland was nominated to the high court by President Obama in 2016 but never received a hearing or a vote in the Senate. Though when President Trump won the election, Neil Gorsuch was nominated and now serves on the Supreme Court. So there is some clear frustration.”
He ran a clip of Warren ranting on the issue. “First, they steal a Supreme Court seat, then they turn around and change the rules on filibuster for Supreme Court seats so when it swings back around to us, what are we going to do?” the senator asked. “My answer on that is all the options are on the table.”
What exactly are those options? There are three general strategies 2020 Democrats have laid out.
1. Packing the court
Last October, Rep. Alexandria Ocasio-Cortez (D-N.Y.) championed the idea of Democrats nominating more than nine judges to the U.S. Supreme Court. This court-packing scheme echoed the threats of President Franklin Delano Roosevelt. FDR warned the Court that if it kept striking down his New Deal programs as unconstitutional, he would nominate extra judges to the Court, eventually outvoting the justices who upheld the Constitution.
On Monday, three 2020 Democrats told Politico they would support the same strategy. Warren, Sen. Kamala Harris (D-Calif.), and Sen. Kirsten Gillibrand (D-N.Y.) all said they would support packing the Supreme Court to reverse the effect of Trump’s nominees.
“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.”
“It’s not just about expansion, it’s about depoliticizing the Supreme Court,” Warren insisted. “It’s a conversation that’s worth having,”
Gillibrand told Politico that Justice Neil Gorsuch possesses an illegitimate seat because President Obama’s last nominee, Judge Merrick Garland, was blocked by the Senate and denied even a committee hearing.
Pack the Courts, an activist group launched in October, has raised $500,000 and plans to spend $2 million leading up to the 2020 presidential campaign, Politico reported.
While Warren insisted that packing the Court would “depoliticize” it, nothing could be further from the truth. If a Democratic president were to expand the Court from nine justices to 15, a Republican president could later expand it from 15 justices to 21. The battles would only intensify.
Furthermore, it is extremely rich for far-left Democrats to call for making the Court less political. In recent decades, the more liberal justices have been responsible for twisting the Constitution to fit their political agendas. Donald Trump pledged to nominate originalist justices — ones who would return to the plain text and original sense of the Constitution. This trend actually makes the Court less political, but because the Left has gone so far in redefining the Constitution, liberals see a return to the original meaning as a partisan change, rather than a return to the rule of law.
2. A fight for 15
On Tuesday, Fox News played video of South Bend Mayor Pete Buttigieg suggesting a different kind of Court-packing.
“One idea that I think is interesting is, you have 15 members but only ten of them are appointed in the political fashion, five of them can only be seated by unanimous agreement of the other ten,” the mayor said. “But the bottom line is, we got to make some kind of structural form to depoliticize the Supreme Court.”
Former Rep. Beto O’Rourke (D-Texas) suggested the same idea in Iowa last Thursday, The Hill reported. “What if there were five justices selected by Democrats, five justices selected by Republicans and those 10 then pick five more justices independent of those who picked the first 10,” O’Rourke, also a 2020 candidate, said. “I think that’s an idea we should explore.”
This idea seems more likely to depoliticize the Court than court-packing, but it throws out the structure of nominating and confirming justices as laid out in the Constitution. Under the current system, the president nominates justices and the Senate confirms them. This provides checks and balances, allowing the Senate to refuse a president’s nominee — as it did with Merrick Garland.
Under the Buttigieg-O’Rourke plan, which Democrats would choose justices? Which Republicans? What checks would there be? The plan sounds good, but it seems rather unworkable.
3. Term limits
Under the Constitution, Supreme Court justices serve for life. Cory Booker suggested changing that. Fox News ran a clip showing his comments on this.
“I think I would like to explore a lot of options and have a national conversation. Term limits might be one thing,” Booker said. “Give every president the ability to choose three. We have people holding onto those seats in a way that is not necessarily healthy. I think term limits might be a better way of saying that.”
Booker’s suggestion that some people are “holding onto those seats” in an unhealthy way seems ironic. While the longest-serving current justice is Clarence Thomas, Ruth Bader Ginsburg is close behind him, and Stephen Breyer is close behind her. Term limits might not make the Court more liberal, despite Booker’s best efforts.
This complaint stems from “the fact that President Trump’s Supreme Court justices will be on the high court for decades,” Fox News’ Emanuel noted. The long-term impact of Trump’s justices “really fires up the Left.”
Ultimately, these calls for reform have less to do with making the Supreme Court less political and more about changing the Court to make it more liberal. Only the Buttigieg-O’Rourke plan could end up somewhat non-partisan, and it seems the least workable.
It seems more Democrats will follow the FDR-Ocasio-Cortez plan to pack the Supreme Court. This would only supercharge America’s political tribalism.
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.