A bill to expand the Supreme Court to 13 justices seems motivated by political revenge, not sensible judicial reform.

You can tell that House and Senate Democrats are serious about court-packing by the new bill’s name: the Judiciary Act of 2021. They didn’t burden it with an insufferable acronym, like the Judicial Upkeep, Democracy, Growth, and Expansion, or JUDGE, Act, or something pedantic like the Save Our Courts Act. By connecting it to previous Judiciary Acts that built and expanded the federal courts since 1789, Democrats are trying to suggest that there’s precedent and continuity to their proposal.

The Judiciary Act, which was announced by congressional Democrats on Thursday, is short and straightforward. It revises the section in federal law that says the Supreme Court has “a Chief Justice of the United States and eight associate justices” to say “a Chief Justice of the United States and twelve associate justices.” If it is enacted, President Joe Biden would be able to name four new justices to the high court. A 6–3 majority of Republican appointees would become a 7–6 majority of Democratic appointees. It’s easy to understand why some Democrats favor the bill. But their strategy to get it passed, let alone to solve the actual problems at hand, is not so clear.

Let’s start with the obvious: The Judiciary Act won’t become law. Speaker Nancy Pelosi told reporters on Thursday morning that she has “no plans” to bring the bill to the floor. And the House isn’t even the biggest problem. West Virginia Senator Joe Manchin, the Senate’s de facto swing vote, stated outright last November that he wouldn’t vote to expand the court. He is also opposed to scrapping the filibuster to pass any legislation, let alone this bill. And there is no chance that one Republican senator, let alone 10 of them, will vote for it.

Some of the bill’s sponsors, like Representatives Jerry Nadler and Hank Johnson, claim they are belatedly following the nineteenth-century tradition of adding a Supreme Court seat for every new federal circuit court of appeals. “Nine justices may have made sense in the nineteenth century when there were only nine circuits,” Nadler said in a statement, “and many of our most important federal laws—covering everything from civil rights to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court. But the logic behind having only nine justices is much weaker today, when there are 13 circuits.”

Others are unambiguous about their partisan goals. “Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Massachusetts Senator Ed Markey, one of the bill’s sponsors, said in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities. This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”

Note that Markey’s critique is aimed at his fellow Republican senators, not the Supreme Court itself. Maybe this is a conscious attempt to avoid the awkward questions that this bill raises about judicial independence. Maybe it’s an attempt to rally Democrats around court-packing by playing to their partisan fervor. In either event, Markey and some other proponents have made clear that the goal here isn’t a more stable Supreme Court, just a more Democratic one.

Democrats have often resisted this temptation in other areas. After GOP state lawmakers spent the last decade taking partisan gerrymandering to new heights, Democrats responded by proposing anti-gerrymandering reforms instead of embracing the right’s playbook. (Gerrymandering isn’t unique to red states, of course.) And while Trump and his allies tried to suppress the vote in traditionally Democratic constituencies in the last general election, Democrats fought to ensure that the pandemic wouldn’t hinder eligible Americans from voting, no matter which candidate they supported. That spirit of fair play isn’t found here.

The Judiciary Act wouldn’t even fix the problems that its supporters decry.

To make matters worse, the Judiciary Act wouldn’t even fix the problems that its supporters decry. Does the bill try to change Senate rules to require an up-or-down vote on a president’s Supreme Court nominees? No. So a situation like the one Merrick Garland faced in 2016, when then–Majority Leader Mitch McConnell refused to hold a vote on the nominee, could happen again. Does the bill try to change Senate rules to prevent a Supreme Court nomination from reaching the floor within weeks of a presidential election? No. So a future Donald Trump and a future McConnell could still rush through a future Amy Coney Barrett before Election Day. This isn’t reform; it’s revenge. Oh, and there’d be nothing to stop Republicans from expanding the court again and putting everyone right back at square one.

The bill doesn’t even make tactical sense. If Democrats were responding to a disastrous ruling from the court—maybe on abortion rights or voting rights—they might have a stronger case for the public here. But they aren’t. Lawmakers didn’t even wait to see how the court’s conservative majority would rule on a pending challenge to the entire Affordable Care Act or on a dispute that could weaken the Voting Rights Act even further. And with Biden’s court-reform commission barely underway, it’s no surprise that some of the top Democrats on the Senate Judiciary Committee, like Dick Durbin and Sheldon Whitehouse, aren’t throwing their weight behind this bill.

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Ten Potential Democratic Supreme Court Nominees Who Aren’t Named ‘Sri Srinivasan’

IAN MILLHISER 

 

This afternoon, the Senate confirmed Sri Srinivasan to the staunchly conservative United States Court of Appeals for the D.C. Circuit. Meanwhile, Senate Republicans already have a plan to prevent anyone else from being confirmed to this powerful court while Obama is in the White House. Obama pulled this one confirmation off because the Srinivasan nomination was practically an act of trolling. Srinivasan clerked for a Republican judge and a Republican justice. He is unquestionably one of the best Supreme Court advocates in the country. And his nomination enjoys the support of Republican legal stars such as Paul Clement, Bush v. Gore attorney Ted Olson, and anti-Clinton inquisitor Ken Starr. Had Senate Republicans filibustered this nomination, it would have been difficult for them to deny allegations that they are acting in bad faith.

In no small part because of Srinivasan’s stellar legal credentials, the New Yorker’s Jeff Toobin claimed that “if Srinivasan passes this test and wins confirmation, he’ll be on the Supreme Court before President Obama’s term ends.” This claim is premature. At the very least, court watchers — and the President himself — should have some idea what Srinivasan thinks about the law before he joins the most powerful Court in the land, and Srinivasan’s views are largely unknown. After some time on the DC Circuit, Srinivasan may indeed emerge as a leading candidate for the Supreme Court. In the mean time, here are ten other possible candidates that could appeal to a Democratic president:

1. Paul Watford

Ninth Circuit Judge Paul Watford was among President Obama’s most outstanding appointees during his first term. A former clerk to Justice Ruth Bader Ginsburg, Watford is in his mid-40s and thus has many years of eligibility left for the Supreme Court. Like Srinivasan, Watford spent much of his career at a large law firm, so he should ideally spend enough time as a court of appeals judge that his views on important legal issues are clear. Nevertheless, he is likely to be near the top of any Democrat’s list of potential Supreme Court nominees.

2. Jane Kelly

Eighth Circuit Judge Jane Kelly began her career with the kind of credentials that all but guarantee a lucrative career to lawyers who want one — a Harvard Law degree and a United States Court of Appeals clerkship. Yet she chose to spend nearly two decades as a federal public defender instead. She also experienced an unusually easy confirmation process due to a personal tie to Sen. Chuck Grassley (R-IA). In a perfect world, she would spend some time as an appeals court judge becoming more familiar with the civil side of her docket, but the sort of attorney who passes up huge law firm salaries to ensure that criminal defendants receive excellent representation would be a welcome addition to the Supreme Court.

3. Alison Nathan

Appointing a federal district judge like Alison Nathan directly to the Supreme Court is unusual, but Judge Nathan’s experience as a trial judge would be a helpful addition to a Court that currently only has one former trial judge, Justice Sonia Sotomayor. Nathan is a former law clerk to Justice John Paul Stevens, and a former Associate White House Counsel. She would also be the first openly gay justice if confirmed to the Supreme Court.

4. Kamala Harris

Supreme Court observers ignore SCOTUSBlog’s Tom Goldstein at their peril, so we will not make that mistake by leaving out his views regarding the next Supreme Court nominee. Last year, Goldstein named Harris as an “ideal nominee” based on her youth, qualifications, and that fact that she would diversify the Supreme Court’s bench. One way she would add diversity is by becoming the only former elected official on the nation’s highest Court, a perspective that could make her particularly effective in pushing back against misguided election decisions such as Citizens United.

5. Goodwin Liu

California Supreme Court Justice Goodwin Liu had a rough ride as a nominee to the Ninth Circuit, largely due to spurious claims that he would use a seat on the bench to, in Grassley’s words, make America more like “communist-run China.” Since joining California’s highest court, Justice Liu has instead emerged as “a paragon of judicial restraint,” in one law professor’s words. While Senate Republicans are unlikely to consider this fact if the president nominates someone that they once filibustered, a successful round of filibuster reform could remove that obstacle.

6. Deval Patrick

The Massachusetts governor is not just a successful politician, he is also a Harvard Law grad, former U.S. Court of Appeals law clerk, and former head of the Justice Department’s Civil Rights Division. Like Harris, Patrick would bring an elected official’s perspective to the Court, and his civil rights background would provide a counterbalance to Justice Antonin Scalia, who recently labeled the Voting Rights Act a “perpetuation of racial entitlement.”

7. Pam Karlan

Stanford Law Professor Pam Karlan is a constitutional scholar, a leading expert on voting rights and a top Supreme Court advocate. In the wake of voter ID laws, early voting restrictions, voter purges, barriers to voter registration, and other efforts to suppress voting, Professor Karlan would be an ideal candidate to restore the Supreme Court’s respect for the franchise. Additionally, Karlan is in a long-term committed relationship with a woman, so she would add this perspective to the bench as well.

8. Paul Smith

Paul Smith may be the nation’s preeminent gay rights litigator, having argued and won Lawrence v. Texas before the Supreme Court. He also argued a pair of challenges to partisan gerrymanders that were halted by the five conservative justices on the Supreme Court. As a justice himself, Smith would be the ideal candidate to write an opinion declaring such gerrymanders unconstitutional once and for all.

9. Neal Katyal

Former acting Solicitor General Neal Katyal has the distinction of being on the correct side of the most important constitutional issues to arise in the last two presidencies. As the Obama Administration’s top litigator, Katyal defended the Affordable Care Act in multiple courts of appeal against partisan lawsuits seeking to undermine it. And he convinced the Supreme Court to place an important limit on President Bush’s attempt to isolate Guantanamo detainees from the law in Hamdan v. Rumsfeld.

10. Tom Perez

Senate Republicans wasted no time in opposing Tom Perez, the Labor Secretary nominee given the task of cleaning up the Justice Department’s Civil Rights Division after the Bush Administration left it in a shambles, once President Obama nominated Perez to the cabinet. Nevertheless, Perez’s background in civil rights and labor policy would help balance the conservative justices who turned their backs on Lilly Ledbetter’s right to equal pay for equal work. And, so long as Democrats control the Senate, a filibuster of Perez’s nomination could only be sustained if Senate Democrats allow it.

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