If President Trump’s secures his Supreme Court nomination, what could a President Biden do about it?
In a recent posting, I ventured to suggest that, following the death of Supreme Court judge Ruth Bader Ginsberg, President Trump would quickly nominate Amy Coney Barrett as a replacement (which he has now already done), but that enough Republican Senators would oppose such a rushed appointment so near to the election of a new president (which now looks very, very unlikely).
So if Trump gets his way, how could the Democrats respond?
Effectively there is nothing the Dems can do unless in November they win the Presidency, maintain their majority in the House of Representatives, and secure a majority in the Senate. If current polls are accurate, they will do all three. What then?
First: a bit of history. Though the first Surpreme Court comprised six justices, Congress has altered the number of Supreme Court seats – from a low of five to a high of 10 – six times over the years. In 1869, Congress set the number of seats to nine, where it has remained until today.
So Biden would be within his constitutional rights to nominate more members to the Court and the Senate would be within its constitutional rights to approve those extra nominations.
There is a lot to be said, especially in the current political climate, for having an odd number of justices. That way, one avoids a tied vote. To expand the Court by another four members, would be seen as court-packing and an abuse of power. However, in current circumstances, to increase the size of the Court by two, would be very controversial – especially among Republicans – but might well be seen – especially by Democrats and independents – as an acceptable response to Trump’s abuse of power.
If Barrett’s nomination succeeds, the conservative-liberal balance on the Supreme Court would be six to three, If Biden was able to secure two liberal additions to the court, the balance then would be six to five. So, even then, liberals would not have a majority on the Court, but things would be more evenly balanced and one conservative could tip the balance on any even decision.
This might seem to be an unduly optimistic expectation, but the evidence of the first session of a Supreme Court session with a narrow conservative majority has been that the court sometimes defies expectations and takes a sensible position that reflects majority opinion among the population.