(Bloomberg Opinion) -- Joe Biden keeps dodging when asked whether he supports enlarging the Supreme Court in order to pack it with liberal justices. Don’t be surprised if Mike Pence uses the issue against Kamala Harris at the vice-presidential debate: Republicans think they’re on the politically popular side of it.
Among the reasons Biden is ducking may be that the more high-mindedly the Democrats try to rationalize court-packing, the less convincing the argument becomes. There’s an irrefutable internal logic to saying, “We’d like to pack the court to gain more power.” But the other justifications the Democrats are advancing for the idea are less compelling.
Sometimes the argument is that it’s wrong for four of the justices to have been nominated by presidents who didn’t win the popular vote in their first election. That factoid is contrived to distract from the facts that two of these justices were nominated by President George W. Bush after he won a majority of the popular vote in his re-election campaign and that President Bill Clinton had two nominees without winning a majority of the popular vote for either of his terms.
The more common argument is that Senate Republicans “stole” a seat by ignoring President Barack Obama’s nomination of Merrick Garland in 2016 and instead holding the seat open until President Donald Trump could put Neil Gorsuch in it. Democrats are thus owed two more justices: one to offset the illegitimately seated Gorsuch, and one to make up for the illegitimately unseated Garland (and to ensure there is an odd number of justices).
The latest twist on the argument has been developed by two prominent legal commentators writing in the Atlantic. Quinta Jurecic and Susan Hennessey write that they “have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.”
What converted them to this cause is the current Republican push to confirm a justice before an election Trump looks likely to lose. That’s “constitutional hardball,” they say, and Democrats have to play it too.
If Republicans confirm Amy Coney Barrett to the Supreme Court and Democrats then win the election, Jurecic and Hennessey think that the victors “must add seats for additional justices.” (They mention the number two, but they’re not picky about it.) The point of this move would be “to get to a place where the cycle of retaliation and politicization can be ended.”
The two most serious weaknesses in this case have to do with the somewhat elusive concept of legitimacy. The first is the authors’ confidence that the Republicans are depleting the Supreme Court’s reservoirs. It has been a common theme of recent years.
Not confirming Garland, the New York Times editorialized in 2016, could do “irreversible” damage to the court. Former Democratic Senator Russ Feingold said in 2017 that “the legitimacy of our highest court might never recover” if Republicans confirmed Gorsuch. And in 2018, Vox warned that Republicans’ confirmation of Brett Kavanaugh after an extremely bitter partisan battle meant that “the Supreme Court’s legitimacy crisis is here.”
The public does not seem to have gotten the message. In 2015 — before the nominations of Garland, Gorsuch and Kavanaugh — the Supreme Court had a net approval rating of negative 5%, according to Gallup. In early September of this year, its net approval was a positive 10%. It is more popular than it was for nearly the entirety of Obama’s time in office.
The Pew Research Center’s polling finds the same trend: The Supreme Court’s reputation has improved during the legitimacy panic of the last five years. Even Democrats view it more favorably now.
The second flaw is the cheery assumption that court-packing would close the book on the political wars over the courts rather than start a new chapter. Making their case that Republicans are endangering the court, Jurecic and Hennessey note that polls show most Americans want the Senate to wait until after the election to confirm a new justice.
Polls also show majority opposition to court packing. If Democrats ignore that sentiment, won’t they too be delegitimating the court? And wouldn’t they be inviting Republicans to expand it the next time they have the chance?
Perhaps Democrats will conclude that the risks of court-packing — to the success of a Biden administration, to the political fortunes of their party and to the strength of our constitutional system — are worth it for the promise of increased power. They’re surely not worth it to solve a legitimacy problem that shows little sign of existing.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.
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