Let’s begin with:
It’s amply be-chinned #MoscowMitch declaring in plain terms that he will not confirm any Democratic President’s SCOTUS nominee. While shocking that he would say this aloud, it is not surprising that it is his policy, and as we all know what was once vice soon becomes habit.
Slate has a take (emphasis mine):
McConnell played slightly coy when discussing the possibility of a Supreme Court confirmation in 2023, telling Hewitt: “Well, we’d have to wait and see what happens.” But anyone who seriously believes a Republican-controlled Senate would confirm a Biden nominee that year—or even hold hearings on one—is deluding themselves. McConnell’s approach to judicial confirmations reflects two core principles of the modern GOP: first, that only the federal judiciary can impose key items in the Republican Party platform that are too unpopular to pass through the democratic process; and second, that only conservative judges faithfully apply the Constitution, whereas liberals make it up as they go along.
To the degree that the Republicans have a platform beyond giving money to billionaires, this passes the sniff test. Democrats put in any limits or regulations that Republicans don’t like, then the GQP will have the courts overturn them. It’s governing behind the curtain, but that’s never been an issue for those crooks.
Anyway, Dan Pfeiffer has some thoughts:
It’s easy to get caught up in the calendar implications of McConnell’s statement. It’s understandable to panic about the fact that Justice Stephen Breyer seems so naive about the state of American politics yet is likely to stay on the court past the 2022 election. But we should be crystal clear that McConnell is elucidating an entirely new principle — a Republican Senate will never confirm a Democratic president’s nominee to the Supreme Court. It doesn’t matter when the vacancy occurs or who the president nominates to fill it. If a Republican can prevent that appointment, it is their duty to do so. The blocking of Garland is not the exception; it’s the rule.
Pfeiffer has some suggestions:
- Supreme Court Expansion: The only true way to unrig the courts is by adding two to four justices to the Supreme Court. Counter to much of the mouth-frothing of Republicans, the number nine is nowhere in the Constitution. The founders left the number of justices on the Supreme Court up to Congress and the president. There is ample precedent for changing the number. Congress made it five justices in 1801. They expanded it to seven in 1807. In 1837, they made it nine. The Supreme Court was increased to ten in 1863. When President Andrew Johnson was impeached but not removed, Congress reduced the size of the court to seven to prevent him from making lifetime appointments. Once Johnson was gone, it was changed back to nine.
Expanding the Supreme Court is more within the mainstream of American politics than Mitch McConnell’s decision to shrink the court to eight justices during a much-contested presidential election that could have ended up in the courts.
- Lower Court Expansion: Congress used to increase the number of federal judges to keep up with a growing population and caseload, but politics have kept the number of judges static for a very long time. Back in January, Senator Schumer expressed openness to the concept of lower court expansion. Even without McConnell’s misdeeds, expanding the lower courts is the intelligent thing to do. Some experts believe lower court expansion would qualify for the budget reconciliation process and avoid the filibuster problem sinking much of the Democratic agenda.
- Eliminate the “Blue Slip Process”: Senate rules grant home-state senators a veto over nominees for seats located in their states. In the Obama years, the Republicans abused this rule, otherwise known as the “Blue Slip Process,” to slow down the confirmation of Obama nominees even when Democrats controlled the Senate. When Trump became president, the Republicans changed the rules so that the “Blue Slip Process” only applied to district court nominees. This change helped ensure that Trump and McConnell could stack the courts with unqualified Right-Wing hacks. With Biden in the White House, Senate Democrats have maintained the Trump Era rules but resisted pressure to go a step further and get rid of blue slips altogether. An aide to Senate Judiciary Chair Dick Durbin explained the decision to Politico:
“It’s our expectation that Republicans likewise act in good faith and work with the Biden administration to fill district court vacancies in red and purple states.”
With all due respect to this hardworking and likely underpaid staffer, anyone who expects Republicans to act in good faith should not be working in American politics. If Democrats do not eliminate blue slips, it’s likely that they will end their Senate majority with judicial vacancies that we may never get a chance to fill.
(Pfeiffer’s points are not Ors, they are Ands. It took me a moment to realize that.)
No One Asked Me BUT: As the SCOTUS is actually the final appellate court, I still think that it could be made up of Appellate Judges, drawn at random each session and disbanded at the end, so the key is to get the lower courts filled.
Anyway, what we have now is openly political and being rigged in public by an openly democracy-hating Mitch McConnell.
We gotta stop this now.