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Trump Supreme Court pick shouldn't distract Democrats: Focus on winning, not court-packing

Liberal calls to expand the court could scuttle the best way to check the growth of a conservative-dominated court — the election of a Democratic president.
Image: The Supreme Court in Washington on Sept. 9, 2019.
Al Drago / New York Times via Redux

At a time of economic crisis, when our basic sense of security has been erased and the American social fabric is fraying, Democrats have increasingly harked back to President Franklin Delano Roosevelt as a model for relief and regeneration. Heading into the 2020 election, there are echoes of FDR in both the call for an expanded social safety net that demonstrates how government helps people and for leadership and unity in dealing with a pandemic. And yet, there are also calls to revive one of FDR's singular stumbles: his failed attempt to pack the Supreme Court.

As the saying goes, those who do not study history are condemned to repeat it, and it seems like a sizable number of liberal leaders haven't learned this lesson.

Those calls follow Supreme Court Justice Ruth Bader Ginsburg's passing this month — and Republicans' vows to quickly get a replacement through the nominating process. Many liberals are furious that the Republicans would push forward even though the GOP-controlled Senate blocked President Barack Obama's pick to fill a vacancy nine months before the election in 2016.

Enter demands for Joe Biden, should he be elected, to pack the court — the practice of adding seats to the nine-member Supreme Court to overcome a partisan disadvantage. Roosevelt tried this in 1937 after the court struck down key New Deal programs.

Importantly, the effort ended badly for Roosevelt. He was halted by bipartisan congressional disapproval, with both chambers refusing to consider the bill to expand the number of seats. What's more, his failed effort to pack the court harmed his overall power to govern — voters opposed the move as politicizing the court, and the New Deal coalition remained splintered for much of his second term.

As the saying goes, those who do not study history are condemned to repeat it, and it seems like a sizable number of liberal leaders haven't learned this lesson. The country once again stands on a dangerous precipice, and now is the time for Democrats to choose the politics of common sense and kitchen table issues rather than call for altering a branch of government that has been stable for 150 years. That's a surefire way to give credence to Republican allegations of Democratic overreach that could scare off persuadable voters and, ironically, scuttle the best chance to check the growth of a conservative-dominated court: the election of a Democratic president.

Senate norms aren't what motivates voters; most people aren't going to choose a candidate based on what some Republican senators did in 2016 to stop Obama's Supreme Court appointment, even though it's true that most Republican senators are now going back on their word, pushing for confirmation of Ginsburg's replacement with just weeks to go when they claimed that nine months was too close to the election in 2016.

Voters have limited time and bandwidth for thinking about elections, so why focus their attention on a party's less popular ideas when they could be focused on its most popular ones? Court-packing would certainly fall into the category of deeply unpopular, despite some polling that's being misinterpreted to argue that 40 percent to 45 percent of Americans might be open to the change. These polls ask more generically about expanding the Supreme Court, and results showing some support across the political spectrum are detached from the highly charged and partisan debate that would result from any attempt to change its makeup. With 28 percent or 31 percent of Republicans approving of a theoretical Supreme Court expansion, the numbers are ready for a nosedive once court-packing begins to be pushed strictly for partisan reasons by a Democratic administration.

In contrast, the issue voters most worry about is health care. Expanding the access to and affordability of health care is popular around the country; it's been done by referendums in red states like Nebraska and Idaho. There is only one smart Democratic play here: Tell voters that the Republicans are coming for their health care and are pursuing other unpopular policy changes that would affect their lives.

To the extent that Democrats are talking about court-packing, they're not reaching voters where they are. At best, the idea is a short-term fix masquerading as a structural change. At worst, it feeds dark Republican fantasies about Democrats attempting to remake the country, not to mention subsequent moves to counter-pack the court with conservative justices.

It may well be that the rules of the game are stacked against Democrats, with the rural tilt of the Senate giving the GOP a built-in advantage in holding the chamber that must confirm any Supreme Court pick. But that isn't a winning argument. First, this game needs to be won at the ballot box. How deep in the liberal Twitter echo chamber does one have to be to simultaneously believe that Democrats will take back all branches of government and that the Senate is so fundamentally undemocratic that voters must allow court-packing?

Luckily for Democrats, their nominee is focused on FDR's popular programmatic legacy and is explicitly avoiding calls for court-packing — and getting annoyed at Democrats who keep it up. Biden understands that you don't win elections by talking about tinkering with norms or by talking about changing the rules of the game in the fourth quarter.

Not all Democratic posturing is lost, however. Most voters want to wait to nominate a new justice. But polling also shows that nearly 6 in 10 voters believe senators should approve qualified nominees even if they disagree with their positions, and just 2 in 10 believe judicial nominees should be opposed simply based on party affiliation. A recent CNBC/Change poll of swing states showed voters evenly split on which party does a better job picking justices.

Democrats can — and should — make the case to voters that the Republicans' appointee will be bad for the country and use the process to highlight important policy areas that advantage Democrats. But that advantage is found in health care and the environment. Shifting the conversation from pre-existing conditions to constitutional law would be a mistake.

Talking about changing the rules when you've lost the game may sound like a winning strategy to frustrated liberals, but nothing is more of a loser than acting like Senate Majority Leader Mitch McConnell without the power. To become the majority, Democrats must be idealistic and focused on issues that win elections. To do that, Democrats should pack the polls, not the courts. Trying to do the latter could well prevent the former.