The Republican Party in the U.S. Senate, led by Mitch McConnell and supported by Florida Sens. Marco Rubio and Rick Scott, along with President Donald Trump, is attempting, once again, to pack the Supreme Court. Make no mistake about it, filling the seat of the late Justice Ruth Bader Ginsburg has nothing to do with ensuring a full bench of nine justices to resolve cases in the upcoming term nor is it about settling any messy results from the upcoming election.
This is about securing a 6-3 Republican majority on the Supreme Court to ensure we live under a conservative version of the Constitution for another generation. For Floridians, this will mean the air will be harder to breathe, water too dangerous to drink, voting more difficult, state legislators making decisions about reproductive rights instead of you and your doctor, segregation returning to schools and housing, unions busted, unsafe working conditions, the doors to colleges and universities only open to a select few, marriage equality rolled back, and those with pre-existing or catastrophic healthcare conditions will once again be forced to choose between overwhelming medical bill debts or death.
Since 1969, Republican presidents, from Richard Nixon to Trump, have appointed 15 justices to the Supreme Court compared to just 4 justices by Democratic presidents. When Ruth Bader Ginsburg was nominated and confirmed in 1993, it was the first time a Democratic president had the opportunity to make an appointment to the court since Thurgood Marshall in 1967. The result of this dramatic imbalance has been severe; the United States has been living under the domination of a Republican-appointed Supreme Court for almost 50 years.
The death of Justice Antonin Scalia in 2016 threatened to end the multi-generational domination of the Supreme Court by Republican justices and promised to flip the court to 5-4 the other way, this time controlled by Democratic justices. President Barack Obama nominated Merrick Garland, an eminently qualified senior judge on the U.S. Courts of Appeals for the D.C. Circuit. For the first time in the history of the nation, the Garland nomination was ignored, and his appointment never even made it onto the Senate floor for a vote.
Why? Republican Senate Majority Leader McConnell invented a new standard, the McConnell Rule, which said that if a vacancy occurs during a presidential election year, then the American people should have a say in who gets to nominate their replacement. There was no concern then for how the Supreme Court would manage with only eight justices, nor was there even the slightest concern about upcoming election results. No, Sen. McConnell, backed by a Republican Senate majority, decided they could not accept losing the Supreme Court to the Democrats. The Republican Party decided the Supreme Court was theirs, it belonged to them, and they would not give it up. This is court packing.
When President Franklin D. Roosevelt in frustration proposed packing the court in 1937, he did so because an ideologically conservative Supreme Court repeatedly stood in the way of a united country, supported by a re-elected Democratic president, and Democratic super-majorities in both the House of Representatives and the Senate, trying desperately to respond to the Great Depression. Despite President Roosevelt’s pleas, the country and many in his own party would not support his plan.
Court packing at its core is about a political party trying to lock in its control of the government of the United States so that elections do not have consequences. You see no matter the circumstances, McConnell and his Republican Senate colleagues will always find a way to try to convince the nation that any appointments to the Supreme Court made by Democrats are dangerous. Only the Republicans, the party that owns the Supreme Court, should be trusted to name its replacements. Notice that within two hours of Justice Ginsburg’s passing, McConnell cynically abandoned his McConnell Rule and made it plain he will make every effort to ram an appointment through the Senate. His hypocrisy and abuse of power is on full public display.
The American people rejected this attack on our democracy in 1937 and the American people in 2020 should reject this latest Republican plan to pack the court. Despite the Republican Senate having the votes to confirm Justice Ginsburg’s replacement, any attempt by President Trump to fill this seat before the next president is sworn into office is court packing. The Supreme Court will transform from the institution charged with protecting and interpreting our Constitution into nothing more than a rubberstamp of the Republican Party.
William M. Myers is associate professor of Political Science and International Studies at the University of Tampa and is a board member of the American Constitution Society, Tampa Lawyer Chapter.