ED MAIXNER: A Path Back To Less Partisan Supreme Court Confirmations?

With President Trump’s election eve choice of Amy Coney Barrett for the U.S. Supreme Court, another partisan fracas has ensued in the U.S. Senate.

Regrettably, Trump has succeeded in casting most anything he can as partisan combat, generally with Majority Leader Mitch McConnell riding shotgun. And it’s become clear Trump will get his strictly partisan win with the Barrett confirmation this fall.

But for the good of the Senate, the nominees and the country, there have usually been better paths to these crucial judicial branch appointments.

Indeed, the Senate has given confirmations of High Court nominees, by both Republican and Democratic presidents, broad bipartisan acceptance, a 2017 Washington Post review of the confirmation votes makes clear.

  • In 1986, for example, 98 of the 100 senators voted to accept President Ronald Reagan’s nomination of Antonin Scalia, an arch-conservative. By comparison, Republicans managed to confirm Trump’s 2017 pick of Neil Gorsuch with just 54 of their own votes and only after forcing a change in Senate rules to allow a vote to proceed.
  • In 1992, 96 senators backed President Clinton’s naming of Ruth Bader Ginsburg, but today’s 53 Senate Republicans are driving toward a strict party-line vote to confirm Ginsburg’s replacement this fall by Trump.
  • The Senate also managed strong bipartisan support for the picks, respectively, of Presidents George W. Bush and Barack Obama: Chief Justice John Roberts, 78 votes in 2005; Sonia Sotomayor, 68 votes in 2009.

One possible remedy to the Senate’s and the nation’s partisan standoff on court makeup would be for Congress to take a broader view on the best size for the court long term. Adjustments, even expansion, to the panel’s size might be achieved by bipartisan selections in the future.

The Senate’s partisan standoff has continued since its Republican majority blocked any consideration for President Obama’s 2016 nominee for most of his final year and subsequently placed two of Trump’s nominees on the court, maintaining a 5-4 majority of members appointed by Republican presidents.

Now Republican senators will apply full partisan advantage to boost the court’s conservative majority to 6-3 before Trump faces possible replacement in January.

That is not “packing” the court? What qualifies then?

The U.S. Constitution lets Congress set the court’s size. But Republican President Abraham Lincoln succeeded in perhaps the most notorious Supreme Court packing. He had to deal with Chief Justice Roger Taney, a strong Confederacy advocate, and he persuaded Congress to add a 10th justice to tamp down Taney’s obstruction of the Union’s Civil War campaign and a gain a court less tolerant of slavery. Congress trimmed the court back to eight members right after the Civil War then restored it to nine in 1869 and hasn’t changed it since.

Thus, probably most would agree good reasons can emerge to enlarge the court. I think there are good reasons again.

For perspective, let’s first glance at how generous and responsive Congress itself has been in setting its own membership and that of the court.

At its first meeting in 1789, the Senate started with just 22 members (representing the 11 states that had joined the union) and had 60 in 1850. But it’s been at 100 for 61 years, since no more states have joined the union since Hawaii in 1959.

The House of Representatives, meanwhile, froze membership at 435 more than a century ago, and has since greatly increased the population each member must represent. (Some Americans have long thought the House should have expanded and ought to give the 706,000 tax-paying District of Columbia citizens and perhaps the 3.2 million tax-paying Puerto Rico citizens actual voting membership.)

The House, nonetheless, having started with 59 members, did multiply seats more than seven times during its first 120 years.

American citizenship has also become steadily more diverse, and the population has tripled in the past century, from 107 million to more than 330 million.

What about Supreme Court diversity? Indeed, though long an old White guys’ panel, its membership has become much more diverse than a half-century ago.

But, hey, nine judges to rule on the nation’s largest legal questions for a highly diverse country of 330 million people? Could we aspire for a little broader representation on the High Court?

If Democrats win the White House and control of the Senate this fall, I wouldn’t blame them for wanting to name two new justices. Many partisans would scream in opposition at that notion.

However, assuming Barrett is added to the court this fall, the naming of two more justices by a Democratic president would still leave a majority of six named by Republican presidents; five, Democratic. That composition wouldn’t even qualify as an “unpacking” of the conservative majority. Especially in such a tiny fellowship of justices, it seems logical a “packing” can’t occur until the unpacking is done.

Instead, perhaps presidents would again start consulting with both parties in the Senate to seek nominees at least initially tolerable to both, thus allowing for a bipartisan confirmation instead of the partisan slugfests over recent nominees.

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