Trump already packed the courts; Biden should reform them (but he won’t)

Lawrence VanDyke at his Senate Judiciary Committee confirmation hearing, Oct. 30, 2019. (Committee video screengrab)

Republicans say if Joe Biden is elected president he’ll “pack” the U.S. Supreme Court with “radical left” judges.

Welcome to another installment of “If only things Republicans said were true.”

“Court packing” is an imprecise and derogatory phrase. But if, while slinging the phrase around, Republicans mean something along the lines of rejecting long-established institutional processes and loading up courts with sharply politicized judges who can be relied on to ignore fairness, objectivity, and the law, and instead rule in lockstep with the economic interests and ideological preferences of those who appointed them, the most recent Nevada connection to court packing was “Nevadan” Lawrence VanDyke’s confirmation to the 9th Circuit Court of Appeals in December.

For more than a century the Senate almost always confirmed only federal judges who had support from one, and usually both, senators from the nominee’s home state.

The closest thing VanDyke has to a home state is probably Montana. He grew up in Bozeman, and he lost a race for Montana Supreme Court just six years ago, in 2014. That same year, some Montana Republican named Steve Daines was elected to the U.S. Senate. Montana’s other senator, Democrat Jon Tester, voted against VanDyke’s confirmation last year, but Daines voted to confirm him. So VanDyke had the support of at least one senator from his real home state.

But the description of the nomination that senators voted on wasn’t “Lawrence VanDyke, of Montana.” It was “Lawrence VanDyke, of Nevada.”

Both Nevada’s U.S. senators objected to VanDyke’s appointment to the 9th Circuit for a number of reasons, not least being, as both Jacky Rosen and Catherine Cortez Masto said repeatedly at the time, VanDyke is not a Nevadan.

“How would my colleagues feel when a future administration attempts to do the same thing to their state? When a Democratic president, perhaps, nominates a Californian to sit on a district court in Kentucky or a lifelong D.C. resident is sent to Texas?” Cortez Masto asked at the time.

Republicans who control the Senate didn’t care if VanDyke was from one of Saturn’s moons. They knew he’d be a good little Trump sycophant who would always vote for corporations and against women and people of color and LGBTQ folks, so Republicans rammed through VanDyke’s confirmation paying no mind whatever to objections from both senators in the state VanDyke was purportedly from.

In other words, they wrapped him up and packed him on the 9th Circuit.

There have been plenty more where VanDyke came from — no, not Montana, but the D.C.-based stable of right-wing ideologues with law degrees who Senate Republicans eagerly rubber stamp to lifetime seats on the federal bench. Republicans confirm the nominees regardless of their qualifications or lack thereof, and no matter how vast the distance between the nominees’ ideology and the wishes and opinions of people living in the state the nominee is from.

By the time VanDyke was confirmed almost a year ago, Senate Republicans had confirmed a dozen federal Circuit Court judges over the objections of home state senators. Seven of those confirmations were, like VanDyke’s, confirmed over the objections of both home state senators.

So much for a phrase Senate Majority Leader Mitch McConnell likes to throw around with all the sincerity he possesses (i.e., zero): Senate traditions.

Republicans have brought this on themselves

There is no need to revisit the refusal of McConnell and his Republican colleagues (including Dean Heller at the time) to fulfill their constitutional duty to advise and consent on Barack Obama’s nomination of Merrick Garland.

Similarly, everyone already knows about McConnell & Co.’s flagrant hypocrisy, as the GOP Senate ignores everything they said — and the precedent they set — while refusing to hear Garland and rushes to pack the Supreme Court with yet another right-wing extremist from the ample inventory on the shelves at the Federalist Society (Christian-right flavor bits in every bite!).

Given their mutilation of the judicial confirmation process, McConnell and his Republicans deserve an appropriate response from Democrats: Legislation to reform the U.S. court system, starting with a measure to expand the number of U.S. Supreme Court justices.

Congress has done it before. According to this handy dandy chronology from the National Constitution Center:

  • The court started with six justices. In one of the dying gasps of the Federalist Age, John Adams and Congress reduced it to five in 1801, because the Federalists didn’t trust incoming president Thomas Jefferson.
  • Jefferson and his Congress put it back to six, then to seven a few years later.
  • Andrew Jackson, Trump’s favorite president (all the Indian-killing, probably), got a couple more seats added to the court in the 1830s, because if there’s one thing Andrew Jackson believed more than anything else, that thing was that Andrew Jackson could do whatever the hell he wanted (no doubt another reason Trump loves him).
  • During the Civil War, which was, let’s say, a complicated time for the Supreme Court, membership went up to 10.
  • The number of justices was reduced to seven right after the Civil War, but was brought back to nine in 1869, where it’s been ever since.

If Biden wins, by the time he takes office it’ll be 152 years since Congress changed the numbers of justices on the high court. How could Democrats possibly do that?

They could do that the same way the court’s numbers were changed all those times in the 19th century: Congress could pass, and the president could sign, a bill.

Some people may object that Democrats would be shattering long-established traditions and hallowed U.S. institutions. Someone needs to tell those people Trump is president. The good ship Institution, accompanied by the USS Tradition, set sail on Jan. 20, 2017. There have been no known sightings of either ever since.

To be fair, there are still two time-honored institutions Republicans love. Republicans have been allowed to pack the federal bench and the Supreme Court with Federalist Society bots in the first place because they control the presidency and the Senate, and that is thanks entirely to the antiquated, anti-democratic electoral college and the two-per-state apportionment of U.S. senators. Those severe, poisonous constitutional flaws allow the wishes and preferences of a majority of Americans to be overruled by a few angry old white men in Wyoming.

Alas, they are severe, poisonous constitutional flaws, thus next to impossible to change.

So if they win All The Things, should Democrats add, oh, three seats to the Supreme Court? Yes. Lickety-split. The quicker they get it done the quicker they can get cracking on granting statehood to D.C. and Puerto Rico.

They won’t. Biden’s says he’ll appoint a bipartisan commission to study reforming the Supreme Court. But he has no appetite for doing anything to upset, well, anyone at all. Seriously have you seen his campaign? If inaugurated, Biden will reach out his hand in compromise, just like Barack Obama did. And as he did with Obama’s, McConnell will bite it.

As for the so-called “radical left” Republicans are always nattering on about? To reiterate: the ugly truth about the U.S. left is once a Democrat is in the White House, the left gets annoyingly polite and self-muzzles, lest they say something that might make life awkward for the Democratic president.

And that ends this installment of “If only things Republicans said were true.”

Hugh Jackson
Editor | Hugh Jackson was editor of the Las Vegas Business Press, senior editor at the Las Vegas CityLife weekly newspaper, daily political commentator on the Las Vegas NBC affiliate, and author of the Las Vegas Gleaner political blog. Prior to moving to Las Vegas, he was a reporter and editor at the Casper (Wyoming) Star-Tribune.