How Realistic Is Democratic Court-Packing?

 

Noah Rothman made, what I think, is a really interesting point on the Commentary Magazine Podcast about the threat of court-packing should the Democrats take back the Senate. Basically, his argument is that there will simply be no political will to actually go through with it and the nature of the Senate majority will work against it as well.

Looking at the polling, I think he may be right and it’s something I’ve thought about since Justice Ginsburg passed away. I want to lay out my thinking and see what others think. I want to note at the outset that I believe that there will be incredible pressure in the House to take up court-packing and adding new states. AOC is already setting the table for that particular food fight and I doubt Speaker Pelosi (assuming she is still the Speaker) will be able to resist that for long. But how far that goes in the Senate is another story.

Let’s start with the Real Clear Politics Senate map. Under their polling average, there are a total of 9 toss-ups: AZ, GA, IA, ME, MI, MN, MT, NC, and SC. Of these states, only 2 (MI and MN) are currently held by Democrats. The other 7 represent the best chances for Democrats to pick up seats. However, even under the best-case scenario of a clean sweep, that means Democrats will end up with a 52-48 majority. Included in that majority will be Senator Manchin of WV, Senator Bullock of MT, Senators Kelly and Synema of AZ, and Senator Harrison of SC. Each of these individuals represents an otherwise reliably Republican state. Even though Arizona appears to be a toss-up, Governor Ducey remains very popular, so the GOP is not in quite as bad of shape as some think. My point is that the Senate majority in this scenario is comprised of a number of Senators from typically conservative states.

In order to pack the Court, the first step would be to end the filibuster. Given the hypothetical majority, the Democrats can lose only 2 votes and still get a tiebreaker from VP Kamala Harris. Manchin, Synema, and even Dianne Feinstein have already opposed ending the filibuster. Is it really that likely that Bullock would support it? Is it that likely that Harrison, assuming he just defeated Lindsay Graham, would throw away any chance at reelection? I just don’t think that’s likely.

But let’s assume that there are the votes to end the filibuster. Now comes the vote to actually pack the Court. The rationale is, apparently, that the handling of Merrick Garland and Amy Coney Barrett was so bad that the Court must be packed in order to “restore balance.” I think 2 major data points are worth noting. First, polling is very much in favor of confirming now-Justice Barrett. Even Politico had it at 51%-28% in the Justice’s favor. Second, a recent NYT/Sienna College poll found that Americans oppose Court packing by a 58%-31% margin. I don’t see how that changes enough to risk the political fallout.

Given how unpopular court-packing is, and how narrow the Senate majority would be, I don’t see how there are enough votes to get over the finish line. I don’t see Manchin, Bullock, Synema, Kelly, or even Feinstein supporting such a measure. At least not without Biden pushing for it. That seems very unlikely to me.

So, fellow Ricochet members, what am I missing? Am I wrong?

Published in Law
This post was promoted to the Main Feed by a Ricochet Editor at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 28 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Stina Inactive
    Stina
    @CM

    For all the whining about the american public becoming more trival, a large reason for that is the party pushing party-line voting among the senate and house members.

    It will not matter what the american public wants wrt court packing. There are still a lot of people out there who believe their pet issues are best addressed by democrats and they will vote for democrats even though the party gives a flying flip about that particular issue.

    And if the democrats hold the house and senate, they will vote party line on it.

    • #1
  2. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    MDHahn: My point is that the Senate majority in this scenario is comprised of a number of Senators from typically conservative states.

    Good point.

     

    MDHahn: Given how unpopular Court packing is, and how narrow the Senate majority would be, I don’t see how there are enough votes to get over the finish line.

    I’ve wondered about this, too.

    But suppose Democrats win the presidency and the senate.  Biden will be gone quickly and Harris will take over.  Or not.  It doesn’t really matter.  The same people will be running things.

    And those people will be thinking “We had better go big and do it quickly, because in 12-18 months, the party ends, and we’ve got to pretend to like America again for a few months for the 2022 election.”  So I think they’ll push hard for their most ambitious wish list.

    When Democrats were considering Obamacare, I predicted that they wouldn’t do it, for all the reasons you listed.  But they did it anyway, with no Republican support, because they saw a brief window of opportunity.

    And I suspect that given similar opportunities, they would do the same thing again.

    Obviously, I hope you’re right, and I hope I’m wrong.

    • #2
  3. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    I don’t believe the left would pay a meaningful price if they did.  I don’t think that we can say with a straight face, that after the russia hoax, and the farce of an impeachment, normalized and condoned widespread political violence, and the tearing down of everything, that there is much the democrats could pay a price for.

    Not when its basically inside baseball.  I don’t think there is anybody who will vote for a democrat now, will not vote for a democrat after it.  It may be unpopular, but I doubt its unpopular enough to change actual votes.

    Hell, in a fit of pique they basically disemployed mass amounts of humanity.

    You can’t tell me that after all of that, suddenly, an inside baseball political shenanigan is a bridge too far.

    • #3
  4. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Stina (View Comment):

    For all the whining about the american public becoming more trival, a large reason for that is the party pushing party-line voting among the senate and house members.

    It will not matter what the american public wants wrt court packing. There are still a lot of people out there who believe their pet issues are best addressed by democrats and they will vote for democrats even though the party gives a flying flip about that particular issue.

    And if the democrats hold the house and senate, they will vote party line on it.

    This is what tells the story and the Democrat vote on Justice Barrett is the tell. Democrat senators had an opportunity to express their disapproval of confirming a Supreme Court nominee this close to an election in a vote to end debate and yet show their acknowledgement of Barrett’s qualifications for the Court by voting yes on confirmation, especially since they knew she was going to be approved.  None did. That’s Party over Country.

    • #4
  5. Jon1979 Inactive
    Jon1979
    @Jon1979

    I’m still of the belief that Chuck Schumer really held back from attacking Trump in 2016 as Pelosi, Harry Reid and other congressional Democrats did, because he thought his 30 or so year history with Trump would allow him to schmooze Trump, if he were to somehow beat Hillary, into going along with Democratic projects as president. But he never got the chance to do that, because due to the Dems’ visceral reaction to Trump’s win and the demand that everyone in the party fight Trump in any way possible, Schumer would not have won election as Senate Minority Leader had he tried to do deals with his fellow Queensite.

    That’s the scenario you could see with court-packing, to where there’s basically a back-bencher uprising threat combined with a mod of angry woke types online and in the media that intimidates the Dems’ leadership to pull the trigger on court-packing, even with its current negative poll numbers, out of fear of seeing their leadership positions overthrown by the younger, more radical Dems.

    • #5
  6. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Jon1979 (View Comment):

    I’m still of the belief that Chuck Schumer really held back from attacking Trump in 2016 as Pelosi, Harry Reid and other congressional Democrats did, because he thought his 30 or so year history with Trump would allow him to schmooze Trump, if he were to somehow beat Hillary, into going along with Democratic projects as president. But he never got the chance to do that, because the Dems’ visceral reaction to Trump’s win and the demand that everyone in the party fight Trump in any way possible, that Schumer would not have won election as Senate Minority Leader had he tried to do deals with his fellow Queensite.

    That’s the scenario you could see with court-packing, to where there’s basically a back-bencher uprising threat combined with a mod of angry woke types online and in the media that intimidates the Dems’ leadership to pull the trigger on court-packing, even with its current negative poll numbers, out of fear of seeing their leadership positions overthrown by the younger, more radical Dems.

    This is why the 17th Amendment for popular election of Senators without any term limit provision was such a big win for progressives. These are career jobs and the incumbents treat them as such resulting in Party over Country because that is what saves the job.

    • #6
  7. MWD B612 "Dawg" Member
    MWD B612 "Dawg"
    @danok1

    Bob Thompson (View Comment):

    Stina (View Comment):

    For all the whining about the american public becoming more trival, a large reason for that is the party pushing party-line voting among the senate and house members.

    It will not matter what the american public wants wrt court packing. There are still a lot of people out there who believe their pet issues are best addressed by democrats and they will vote for democrats even though the party gives a flying flip about that particular issue.

    And if the democrats hold the house and senate, they will vote party line on it.

    This is what tells the story and the Democrat vote on Justice Barrett is the tell. Democrat senators had an opportunity to express their disapproval of confirming a Supreme Court nominee this close to an election in a vote to end debate and yet show their acknowledgement of Barrett’s qualifications for the Court by voting yes on confirmation, especially since they knew she was going to be approved. None did. That’s Party over Country.

    Exactly. It would have been an easy thing for Schumer to tell Manchin, for example, “Okay Joe, we know we’re going to lose the confirmation vote. Vote against cloture, which we’re going to lose anyway. Then vote to confirm Barrett. We know it will help you back home.” But they couldn’t do it.

    Contrast that with the way the Republicans handled Collins. She’s in a tough re-election campaign in a fairly liberal part of the country. Cocaine Mitch knew he had the votes, so he didn’t pressure her to vote for cloture/confirmation.

    Thus, I assume that if the Dems get the trifecta, they will vote party-line to pack the courts.

    • #7
  8. JuliaBlaschke Lincoln
    JuliaBlaschke
    @JuliaBlaschke

    They will have the main stream media who will praise them for whatever they do. 

    “Given the hypothetical majority, the Democrats can lose only 2 votes and still get a tiebreaker from VP Kamala Harris. Manchin, Synema, and even Dianne Feinstein have already opposed ending the filibuster.”

    They will comply. If they don’t they will be made to. Dianne Feinstein has already been severely warned for having the temerity to be polite.

    These are not good people. 

     

    • #8
  9. EddyEricsson Inactive
    EddyEricsson
    @EddyEricsson

    I think they could do it, but they’d probably lose the House and the Senate in 2022, but a President Harris would gladly try to do it.  You’re right. It really depends on how many seats they get.  It’s a real problem in the future because it starts to get accepted as a concept over time.  Democrats like using the Court and not the legislative or amendment process (as seen in my post from earlier today – https://ricochet.com/817616/amend-this/)

    • #9
  10. Guruforhire Inactive
    Guruforhire
    @Guruforhire

    Jon1979 (View Comment):
    because he thought his 30 or so year history with Trump would allow him to schmooze Trump, if he were to somehow beat Hillary, into going along with Democratic projects as president.

    Remember the 500 Billion infrastructure project they started talking about immediately after the 800B stimulus bill.  Trump ran on it.

    There are a lot of traditional Democratic initiatives that could have been had the left not jumped the shark.

    Because Trump is basically a moderate democrat.

    • #10
  11. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    Packing the court would be a big move.  A big, circular move.  Let’s see here…

    Imagine President Harris does this.  Ok, so Republicans have a 6-3 majority right now.  On paper, at least.

    So if she wants a comfortable majority over Republicans, she’d need a 9-6 majority, meaning a Supreme Court of 15 people.  So she’d need to add 6 new justices.  Ok, fine.

    Ok, so the next time there is a Republican president and senate, what do you think is going to happen?  To get a comfortable majority, we’d need, say, a 12-9 majority, meaning a Supreme Court of 21 people.  So we’d need to add another 6 new justices.  Ok, fine.

    Where does this end?  It doesn’t.  Meaning the Supreme Court would eventually become just another legislative body, thus formalizing the role it plays right now.  

    So when we changed Senators from appointments to elected officials, then congress concedes it’s legislative responsibilities to the Supreme Court, so the Senate just appoints another Senate called the Supreme Court to do what it was supposed to do in the first place.

    Or something like that.

    I’m going to have a glass of bourbon.  Or three.  

    I’ll let you know this makes any more sense after that…

    • #11
  12. kedavis Coolidge
    kedavis
    @kedavis

    Stina (View Comment):

    For all the whining about the american public becoming more trival, a large reason for that is the party pushing party-line voting among the senate and house members.

    It will not matter what the american public wants wrt court packing. There are still a lot of people out there who believe their pet issues are best addressed by democrats and they will vote for democrats even though the party gives a flying flip about that particular issue.

    And if the democrats hold the house and senate, they will vote party line on it.

    That’s basically what I was going to write, but you beat me to it.

    It won’t matter if the Democrat voters at large don’t support court-packing, they won’t stop voting for Democrats who do it anyway.

    • #12
  13. Ekosj Member
    Ekosj
    @Ekosj

    Dr. Bastiat (View Comment):

    When Democrats were considering Obamacare, I predicted that they wouldn’t do it, for all the reasons you listed. But they did it anyway, with no Republican support, because they saw a brief window of opportunity.

    And I suspect that given similar opportunities, they would do the same thing again.

    Obviously, I hope you’re right, and I hope I’m wrong.

    That’s my take as well.   The reward is  immediate and irresistible.    They NEED the Court.  Voters?   What do the Dems care about them?   Obamacare is the case study.    Most of the country didn’t want it and yet the Dems did it anyway.    Now we can’t get rid of it.    They will have learned that lesson well. 

    • #13
  14. DonG (skeptic) Coolidge
    DonG (skeptic)
    @DonG

    Manchin is on record as being against expanding SCOTUS.    I think he is strong enough to resist peer pressure.   There are probably others.   The requisite first step would be ending the filibuster and I have only seen one Senator promising to end the filibuster.

    • #14
  15. Gumby Mark (R-Meth Lab of Demo… Coolidge
    Gumby Mark (R-Meth Lab of Demo…
    @GumbyMark

    Very good analysis.  I’ll add another factor in support.  Among that small group of non-crazy D senators some probably see the current Court on a check against the worst of the craziness that would be unleashed in a Biden administration and a D controlled Congress.  In a conventional political world I would agree with your conclusions and hope it happens.

    However, I am not sure we are any more in a conventional political world.  Court packing could happen because of these factors:

    Many Progressives see the first two years of the Obama administration, when it controlled Congress, as a lost opportunity.  If there is a D senate the pressure will be on to do many things at once, and to do them quickly.

    Remember during the early years of the GW Bush administration when Karl Rove had his slide show on how to create a Permanent Republican Majority?  I thought it silly because of the shallow analysis, and the disastrous Bush administration proved it.  But more importantly, I thought it incorrect because American history showed us there are no permanent political majorities.

    I now think I may have been incorrect.

    If the D control the presidency and congress they will also have something that Rove/Bush never had – the full backing of every major American institution – academia, social media, news media, entertainment, high tech, financial services (with most of the rest of the corporate world either on their side or sidelined and intimidated), foundations, the legal profession etc.  And not just on their side, but willing to use their tools and power to suppress and crush dissent.  If you think what the social media platforms have been doing recently is bad, just wait until you see what they do with a Biden administration and D congress. 

    Even without new laws and regulations this network can ensure fragmentation of the opposition, intimidate people from participating due to fear of losing jobs, careers, customers, friends, and limit the ability to communicate and build an effective response.

    If the Democrats see an opportunity to create a Permanent Democrat Majority with the only institution left opposing them the Supreme Court will they take the political risk to change it and seal their domination?

    • #15
  16. Hang On Member
    Hang On
    @HangOn

    Noah Rothman is a know-nothing putz whose advice on politics I’d rank in there with Jonah Goldberg, Podhoretz or the rest of these goofs.

    They think that public opinion is static. (News flash – it isn’t.) They think the left-wing of the Democratic Party plays by the same rules they do. (News flash – it doesn’t.) They think that the left-wing of the Democratic party would not be perfectly willing to give up a short-term advantage for a long-term structural advantage. (News flash – it doesn’t. Has Noah Rothman for all his supposed sagacity ever heard of Obamacare? The Democrats paid a huge price politically for it. But Republicans will never get rid of it because of a multiplicity of reasons.) The Supreme Court is the ball game. Noah Rothman isn’t smart enough to figure that out. 

    • #16
  17. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Dr. Bastiat (View Comment):
    Republicans have a 6-3 majority right now. On paper, at least.

    Do sitting Supreme Court Justices carry party affiliation as part of their role on the Court? Was Ruth Bader Ginsberg a Democrat? I think she got 93 votes for confirmation. Something has changed in how this process is handled and it didn’t just happen this week. The nominations are presented by a President who ran as a Republican or Democrat. Until recently that was about the extent of political party affiliation attributed to a Justice of the Supreme Court. What Biden did to Bork and Thomas is when things started to change and it has always been one-sided with the Democrats focused on politics but only showing that when in opposing nominees made by Republican presidents.

    • #17
  18. Ekosj Member
    Ekosj
    @Ekosj

    Dr. Bastiat (View Comment):

     

    Imagine President Harris does this. Ok, so Republicans have a 6-3 majority right now. On paper, at least.

    So if she wants a comfortable majority over Republicans, she’d need a 9-6 majority, meaning a Supreme Court of 15 people. So she’d need to add 6 new justices. Ok, fine.

    Ok, so the next time there is a Republican president and senate, what do you think is going to happen? To get a comfortable majority, we’d need, say, a 12-9 majority, meaning a Supreme Court of 21 people. So we’d need to add another 6 new justices. Ok, fine.

    Where does this end? It doesn’t.

    Ok.   Here is the crux of the issue.   From the Leftist viewpoint, if they use their window of opportunity right there won’t BE a ‘next time there is a Republican President and Senate’

    Court packing.   Open borders and Amnesty.    DC and Puerto Rico statehood.   No electoral college.   There won’t be another Republican President for 100 years. 

    • #18
  19. JuliaBlaschke Lincoln
    JuliaBlaschke
    @JuliaBlaschke

    DonG (skeptic) (View Comment):

    Manchin is on record as being against expanding SCOTUS. I think he is strong enough to resist peer pressure. There are probably others. The requisite first step would be ending the filibuster and I have only seen one Senator promising to end the filibuster.

    I wouldn’t bet the farm on that.

    • #19
  20. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    Dr. Bastiat (View Comment):
    So if she wants a comfortable majority over Republicans, she’d need a 9-6 majority, meaning a Supreme Court of 15 people. So she’d need to add 6 new justices. Ok, fine.

    Probably not.  The liberals on the court are much better at voting as a bloc than the conservatives are; 7-6 would probably suit their purposes.

    • #20
  21. Gumby Mark (R-Meth Lab of Demo… Coolidge
    Gumby Mark (R-Meth Lab of Demo…
    @GumbyMark

    Randy Webster (View Comment):

    Dr. Bastiat (View Comment):
    So if she wants a comfortable majority over Republicans, she’d need a 9-6 majority, meaning a Supreme Court of 15 people. So she’d need to add 6 new justices. Ok, fine.

    Probably not. The liberals on the court are much better at voting as a bloc than the conservatives are; 7-6 would probably suit their purposes.

    Progressives vote with an eye to desirable policy outcomes so their votes are never in doubt on issues important to the party.  Conservatives focus on process and have differing approaches to originalism, precedent, statutory interpretation, agency deference etc.  Even an evenly balanced Court will lean Democratic.  And it is why Democrats will always be perfectly satisfied with their justices while Republicans will always be disappointed at times.

    • #21
  22. Kozak Member
    Kozak
    @Kozak

    Dr. Bastiat (View Comment):

    MDHahn: My point is that the Senate majority in this scenario is comprised of a number of Senators from typically conservative states.

    Good point.

    MDHahn: Given how unpopular Court packing is, and how narrow the Senate majority would be, I don’t see how there are enough votes to get over the finish line.

    I’ve wondered about this, too.

    But suppose Democrats win the presidency and the senate. Biden will be gone quickly and Harris will take over. Or not. It doesn’t really matter. The same people will be running things.

    And those people will be thinking “We had better go big and do it quickly, because in 12-18 months, the party ends, and we’ve got to pretend to like America again for a few months for the 2022 election.” So I think they’ll push hard for their most ambitious wish list.

    When Democrats were considering Obamacare, I predicted that they wouldn’t do it, for all the reasons you listed. But they did it anyway, with no Republican support, because they saw a brief window of opportunity.

    And I suspect that given similar opportunities, they would do the same thing again.

    Obviously, I hope you’re right, and I hope I’m wrong.

    I’m convinced it they manage to beat Trump and take the Senate they will charge full steam ahead.  They will not waste time like Ryan and the Rinos when Trump won and they had a window to move their agenda.  They are going to make sure we never have a chance again.  Add DC and Puerto Rico.  Add House seats to benefit large Blue states and swing the Electoral college in the future. Pack the courts, not just the SCOTUS, but lower courts as well.  Open the borders, amnesty and quick citizenship for anyone who can fly, swim walk or crawl to the US.   And move on the rest of their agenda, Taxes, Energy, Social Justice, Reparations it will make Roosevelts first year look like a nap.  

    • #22
  23. Dr. Bastiat Member
    Dr. Bastiat
    @drbastiat

    Kozak (View Comment):

    Dr. Bastiat (View Comment):

    MDHahn: My point is that the Senate majority in this scenario is comprised of a number of Senators from typically conservative states.

    Good point.

    MDHahn: Given how unpopular Court packing is, and how narrow the Senate majority would be, I don’t see how there are enough votes to get over the finish line.

    I’ve wondered about this, too.

    But suppose Democrats win the presidency and the senate. Biden will be gone quickly and Harris will take over. Or not. It doesn’t really matter. The same people will be running things.

    And those people will be thinking “We had better go big and do it quickly, because in 12-18 months, the party ends, and we’ve got to pretend to like America again for a few months for the 2022 election.” So I think they’ll push hard for their most ambitious wish list.

    When Democrats were considering Obamacare, I predicted that they wouldn’t do it, for all the reasons you listed. But they did it anyway, with no Republican support, because they saw a brief window of opportunity.

    And I suspect that given similar opportunities, they would do the same thing again.

    Obviously, I hope you’re right, and I hope I’m wrong.

    I’m convinced it they manage to beat Trump and take the Senate they will charge full steam ahead. They will not waste time like Ryan and the Rinos when Trump won and they had a window to move their agenda. They are going to make sure we never have a chance again. Add DC and Puerto Rico. Add House seats to benefit large Blue states and swing the Electoral college in the future. Pack the courts, not just the SCOTUS, but lower courts as well. Open the borders, amnesty and quick citizenship for anyone who can fly, swim walk or crawl to the US. And move on the rest of their agenda, Taxes, Energy, Social Justice, Reparations it will make Roosevelts first year look like a nap.

    Exactly.

    Why would they not?

    • #23
  24. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    I remember when taking away the filibuster was the nuclear option.  The discussion of it scared my grandmother because she did not understand what they talked about and thought it was about atomic bombs.  Ten years of playing with it and it has been done.  Court packing is gonna happen.  It will happen shortly after they do not achieve their agenda another way.

    • #24
  25. Stad Coolidge
    Stad
    @Stad

    I think it’s just a threat.  Schumer knows very well the next time the Republicans control the Senate and Presidency, there will be the same number of conservative justices added.

    However, I am probably wrong, according to my wife . . .

    • #25
  26. EJHill Podcaster
    EJHill
    @EJHill

    To paraphrase Thomas Sowell, everything is impossible until it happens.

    The idea is to reconfigure the system until one party rule is assured. They don’t want “balance,” they want revenge. There is a growing blood lust on the left and you ignore it at your own peril.

    • #26
  27. ToryWarWriter Coolidge
    ToryWarWriter
    @ToryWarWriter

    As long as Biden is President, I dont think he will do anything like this.  He doesnt want to admit it to his own base though.  So he wont give a firm answer.  I dont think its in his character to actually go through with this.  He wants to be the guy who makes things normal again.

    Harris, is just stupid enough to do it.

    • #27
  28. Bob Thompson Member
    Bob Thompson
    @BobThompson

    ToryWarWriter (View Comment):

    As long as Biden is President, I dont think he will do anything like this. He doesnt want to admit it to his own base though. So he wont give a firm answer. I dont think its in his character to actually go through with this. He wants to be the guy who makes things normal again.

    Harris, is just stupid enough to do it.

    I tend to think you are right. But here is a corollary consideration. If the Democrats got 51 senators in this election, does that mean they would be able to pass such a bill? 

    • #28
Become a member to join the conversation. Or sign in if you're already a member.