The Daily Escape:
Sleepy Hollow Farm, Woodstock VT â October 2020 photo by Kyle Seymour Photography
The Senate started its confirmation hearings on the nomination of Amy Coney Barrett on Monday. There is little doubt that she will be confirmed on a Party-line vote by Republicans sometime before the presidential election on November 3.
There are legitimate questions to ask about the ideological balance on the Court, which will be 6-3 in favor of the conservatives, a ratio that is likely to last for a decade or more. The WSJ had a piece asking âIs the Supreme Court Too Catholic?â The religion of individual justices is of supreme indifference to Wrongo, but after Barrett is confirmed, the Court will have six Catholics, two Jews and one Anglican.
Of the current crop of Catholics on the Court, only Justice Sotomayor was appointed by a Democratic president. It is assumed by Republicans that the justicesâ Catholicism is a proxy for their presumed (or long hoped-for) willingness to overturn Roe v. Wade.
Another legitimate question is how Democrats should deal with the hypocrisy shown by the Republicansâ about-face on whether a new justice could be confirmed in the last months of a presidentâs incumbency. Four years ago, the Republican narrative was that Obama was picking a fight by moving to fill a Supreme Court vacancy after Justice Scalia died in February that year.
With a Republican now in the White House, it has become acceptable to jam through a Supreme Court justice nomination within days of the election. While that process conforms to the Constitution, it wasnât what Republicans did when Obama was president.
Many Democrats are talking about expanding the Court, adding an even number of additional justices to help restore some ideological balance. The Republicans call this âcourt packingâ. Itâs worth remembering that FDR’s attempt to pack the court in 1937 was a political disaster for his Party. So Biden and Harris have been unwilling to say much on the subject.
Eric Boehlert points out that much of the mainstream press has picked up on calling it court packing, and are asking Biden to weigh in on the subject:
- “Biden and Harris Need an Answer on Court Packing” (The Atlantic)
- “Ruth Bader Ginsburgâs Death Revives Talk of Court Packing” (New York Times)
- “How Democrats Could Pack the Supreme Court in 2021” (Politico)
- “Harris Dodges Questions on Support for Supreme Court Packing at Debate” (CBS News)
More from Boehlert:
âFor conservatives, âpacking the courtsâ is an attack line â Sen. Ted Cruz (R-TX) said it would “destroy one of the pillars” of the Constitution, while Sen. Ben Sasse (R-NE) compared it to a “suicide bombing.”….”Expanding the courts” is a more accurate description of what might take place during the next Democratic administration.â
Eric Scholl at Medium points out that Justice Clarence Thomas has suggested recently that the Court should loosen up on one of its guiding principles: that of stare decisis, which means âto stand by things already decidedâ. To Thomas, itâs high time the Court starts overturning decisions that were previously approved. In part, because thereâs now an opportunity to do it.
Thatâs rank politics, but itâs not new. In 2013, Sen John Cornyn (R-TX) had referred to President Obamaâs appointments to the DC Circuit Court of Appeals as an âattempt to packâ the court. In October 2016, when Hillary Clinton was leading in the polls, National Review ran an article arguing that:
âThe Senate should decline to confirm any nominee, regardless of who is elected. More than that, it is time to shrink the size of the Supreme Court.â
Instead, Republicans ask Biden if heâs for adding additional Court justices, hoping he falls in a trap, 21 days before the election. Tim Alberta tweeted:
The answer to court-packing Q is âLook, that isnât our decision to make. Congress would need to pass legislation to expand the Supreme Court, and thereâs no use speculating on that possibility when weâll face immediate challenges on day one of a Biden administration.â
Not hard.
Not a bad answer. Itâs good to remember that two Republican governors expanded their State Supreme Courts in 2016:
- Georgiaâs governor Nathan Dealâs three judge expansion shifted the balance of power on Georgiaâs Supreme Court. He also added two new judges to the Court of Appeals.
- Arizonaâs Republican governor Doug Ducey added two justices to what was previously a five-judge panel.
So, as if you didnât know, hypocrisy is alive and well in the Republican Party.


