Bob Bauer, former counsel to Barack Obama, makes the standard case against packing the Supreme Court as well as it can be made in (what else?) Don’t Pack the Courts. It’s short–read it.
He is right on principle and correct about the pragmatics, which has blinded him to the correct solution. Assuming a Democratic Congress and President in 2020 (a stretch, I grant you, but roll with it), on their first day in office, the new President should send the Senate two nominations to the Supreme Court: Merrick Garland and H. Cusrog Lien–the Bizzaro World Neil Gorsuch, whose faithful duty will be to vote exactly the opposite from Neil Gorsuch on every occasion. The announcement should go something like this:
“My fellow Americans, we all know the truth of the matter, whether we admit it or not: The Republican Party stole a seat on the Supreme Court. They violated its integrity and turned the highest court in the land into a political body. This cannot stand. This must be reversed.
“We have a temporary advantage, during which we now have the power to act as ruthlessly and unethically as the Republican Party has acted. We have it in our means–and many of us have it in our hearts–to go beyond simply evening the scales. I feel that temptation myself, every time I think of one of the many, many people damaged needlessly by arbitrary cruelties enabled by this corruptly-composed court.
“And yet, I will not be party to further degrading the Supreme Court. Enemies of rule of law depend on its defenders sinking to their level. As we do so, with sincere yet premature desperation, we degrade ourselves. We damage the justice of our cause. This we will not do.
“Instead, we will go forward to restore the Court’s integrity. We will not press our advantage. We will simply undo their corrupt act, and no more. We have proposals for reforming the Supreme Court, with which we hope to depoliticize the nomination process.
“In that spirit, I present to you tonight, not one, but two nominees for the Supreme Court:
“Merrick Garland, whose nomination was stolen from him by the Republican Party, and H. Cusrog Lien, who will make Neil Gorsuch’s stolen vote disappear. Until the the day Mister Gorsuch leaves the Supreme Court, Mister Lien will vote for whatever Mister Gorsuch is against, and against whatever Mister Gorsuch is for, even down to whether to call out for Chinese or barbecue during late-night conferences. Their votes will cancel each other’s out, and Justice Garland will be heard, as justice and democracy demand.
“I hope Mister Gorsuch likes anchovies on his pizza.
“Thank you, and good night.”
If you believe in the institutional legitimacy of the Supreme Court*, attacks on its legitimacy which follow the letter of the law and yet violate its spirit present a dilemma: Escalate and worsen the bind, or submit and invite further violation.
This proposal threads that needle. It nullifies a previous Bad Act. It does not submit to injustice. It reverses it. Yet it does not escalate. It doesn’t use temporary political advantage to pack the court full. It offers a compromise.
So tell everyone you know: Garland and Lien/Supreme Court 2021! It’s perfect for some clever presidential campaign.
*Or any such institution. We are in a legitimacy crisis. Whether the Surpreme Court (for example) is still legitimate is being decided now.