Blog No. 270. The Barrett Confirmation and “Packing the Court”

Unless something on the order of a large meteor strikes Capitol Hill, Judge Amy Coney Barrett will be confirmed as a justice of the Supreme Court. Democrats have raised objections both to the confirmation process and to Judge Barrett as a nominee and, while the objections were futile, they are nevertheless worthy of brief comment. In addition, the Barrett nomination, and her presumed confirmation, have produced increasingly loud calls among Democrats for a restructuring of the Supreme Court, referred to colloquially as Court Packing. I believe that such calls are ill-advised and, in any case, should not be a priority in the early days of a Biden administration.

The rush to confirm Judge Barrett in the waning days of Trump’s first (and possibly last) term, has been soundly criticized as hypocritical in view of Republicans’ refusal to consider the nomination of Merrick Garland in the last year of President Obama’s second term. But hypocrisy is so often displayed by both parties on Capitol Hill that such a charge seldom carries much weight. More deeply troubling, is the unseemly haste to confirm Barrett prior to the coming election for the express purpose of having her on the Court when it may hear one or more cases that could determine the outcome of that election. Indeed, Trump has made it shamelessly clear that he is counting on her vote in such a case.

As to the nominee herself, it should be acknowledged that Judge Barrett is clearly a person of keen intellect and impeccable character. Although Barrett has had relatively brief experience as a judge, having served on the Seventh Circuit Court of Appeals for only three years, her opinions on that court, and her academic writings, give a reasonably clear picture of her view of the law. There is no reason to doubt that she is exactly what excites Republicans and alarms Democrats: a strong, some might say extreme, conservative. Her potential rulings are matters for concern among not only progressives, but centrists as well, particularly in areas such as abortion, gay rights, Second Amendment claims, environmental protection and climate change. Personally, I would not be inclined to support her confirmation unless she were replacing a hard-line conservative on the Court, such as Justices Thomas or Alito; needless to say, her replacement of Justice Ginsburg is quite the opposite.

A different kind of concern, not ideological but political, is raised by Barrett’s potential vote in cases involving the 2020 election. As I have previously observed, Barrett herself must be troubled by the possibility that if she votes in Trump’s favor in such a case, she will be viewed by many as a Trump pawn placed on the Court to do exactly that. In her confirmation hearings, Barrett was urged to recuse herself from election cases but, not surprisingly, declined to make such a commitment. Nevertheless, it is a matter that must weigh on her mind.

In an October 17 op-ed piece in the Washington Post, a distinguished retired judge, J. Michael Luttig, a Republican, wrote that a 2009 case in the Supreme Court, Caperton v. A.T. Massey Coal Co., “would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.” The Caperton case involved a West Virginia Supreme Court judge who had received campaign contributions from one of the parties, but Luttig pointed out that the case had broader application:

The question for Barrett, if it arises, will not be whether she personally believes she can be fair in deciding an election case but, rather, whether a reasonable person would conclude that her impartiality would be inescapably overborne by the flood of influences brought to bear on her.

Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases. These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.

Judge Barrett’s confirmation hearings added little to anyone’s assessment of her qualifications; indeed, they were consistently and conspicuously uninformative. Barrett lifted to new heights the art form developed by some of her predecessors in declining to give any answer that might convey the slightest hint of how she might approach some future case. (An amusing satire of Barrett’s performance is provided by Eric Segall in Dorf on Law )

The practice of total deference to nominees’ refusals to make any comment on existing case law seems to me unwarranted. Granted that a nominee should not be asked how she would vote in a future case, questioning could surely be more robust without approaching that level. For example, with respect to major decisions, could a nominee not be asked to explain whether and why she agreed with the majority or the dissents (or neither)? Of course, to establish any such regime would probably require bi-partisan consensus in advance, so Kabuki theater may be all we will ever get.

Calls for a restructuring of the Supreme Court preceded the Barrett nomination, but have been intensified by it. Expanding the size of the Court is frequently referred to, perhaps unfairly, as “Court packing,” although in this instance it might arguably be called Court Balancing or Re-balancing. Republicans have indulged in their own form of Court packing not only by their refusal to consider the Garland nomination, but by eliminating the filibuster for Supreme Court nominations. In April, 2017, Senate Republicans took the radical step (the “nuclear option”) of eliminating the filibuster for Supreme Court nominees. This was done in order to allow the confirmation of Neil Gorsuch with little or no Democratic support. (Gorsuch was confirmed by a 54–45 vote, with only three Democrats joining all the Republicans in attendance.) Similarly, Bret Kavanaugh was confirmed by a 50-48 vote with the support of just a single Democratic Senator. If Judge Barrett is confirmed, it will be with a similar lack of Democratic support. Simply put, elimination of the filibuster made it unnecessary to nominate candidates with a record sufficiently balanced to command significant bi-partisan support.

Nevertheless, I do not favor the current proposals to change the size or structure of the Court. During the Democratic primaries, Pete Buttigieg endorsed a complicated proposal by which the number of justices would be expanded from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10. I did not believe that proposal was at all practical, nor do I support any of the subsequent proposals to expand the Court. I am somewhat more open to proposals that would create 18 year term limits for justices, but I am skeptical of them as well.

I sought the reaction of a federal judge for whom I have great respect, and the judge (a Democratic appointee) replied as follows:

I think enlarging the court would be a terrible mistake. Every time a previously out party took office, it would want to enlarge the court again to favor its views. Before long, we would have an unwieldy court of 15 or more justices and a court that shifted views constantly. And I’m not so keen on 18-year term limits either: many justices have really come into their own only in their later years (e.g., Stevens and to some degree Kennedy). After 25 years on the bench, I think I have a clearer understanding of the issues than when I was first on the bench; and  every year is a broadening experience. And I worry that, with the trend toward younger and younger Justices, the thought of “what will I be doing when my term expires next year” will impede judicial independence as a Justice gets near the end of his/her term.

In any case, altering the Supreme Court is not something that a Biden administration should take up in its early days. Such a project should be approached, if at all, with care and deliberation. It must not become a distraction from the urgent need to address the pandemic and the economy, to say nothing of climate change, healthcare, infrastructure, and a variety of other matters neglected under the Trump regime. Moreover, if Biden is elected, it will be with the support of some, perhaps many, who had to overcome their fears that he would be a captive of the progressive wing of the Democratic Party. If those fears are revived by actions perceived as radical, the Congressional elections of 2022 will arrive all too soon.

It is possible, of course, that rulings of the Court will present major obstacles to implementation of a Biden agenda. In that case, addressing the structure of the Court may be unavoidable. On the other hand, it is also possible that the Court will be wary of provoking such a reaction and, under the leadership of Chief Justice Roberts, will steer a moderate course. That is a consummation to be hoped for.