Tanzina Vega: Welcome back to The Takeaway. I'm Tanzina Vega. On Monday, Judge Amy Coney Barrett was sworn in for a week of Senate hearings, to consider her nomination to the Supreme Court. In her opening statement, Barrett clarified what her approach on the bench might be.
Judge Barrett: Courts have a vital responsibility to the rule of law, which is critical to a free society, but courts are not designed to solve every problem or right every wrong in our public life.
Tanzina: If the 48-year-old Barrett is confirmed, she will be the sixth conservative justice on the court, and she could tilt the court's ideological balance for decades to come, and that's left Democrats scrambling to figure out how to respond. Now I'm going to bring in Mark Joseph Stern, who covers courts and the law for Slate. Mark, welcome to The Takeaway.
Mark Joseph Stern: Thanks so much for having me on.
Tanzina: In the lead up to this week, Democrats appeared almost divided on how to handle Barrett's nomination. Have they decided on a single approach right now?
Mark: They seem to have really zeroed in on the possibility that Barrett will vote to overturn the Affordable Care Act. That surprises me because as you noted, she really poses a threat to progressive jurisprudence overall for decades to come.
She could be on this court for many years, swatting down women's rights, LGBTQ equality, all of this stuff, but on Monday, Democrats really said, let's talk about the ACA, on this big case that asks the Supreme Court to overturn the ACA. Every single senator on the Democratic side, really drilled down on this possibility and said, "Look, this confirmation, it's being rushed. It's a sham. Most importantly, it could result in the revocation of health insurance for 23 million Americans." That was their approach. They showed a lot of discipline. We'll see if it works.
Tanzina: Now, for those of us who remember the Brett Kavanaugh hearings, those were extraordinarily, I guess the word would be dynamic, but some people would say heated. They were very emotional at times. There was some yelling at times. Are Democrats having to recalibrate their approach? There are a couple of reasons for that. I wonder if they think the appetite that the American public has for that type of confrontation is not very high right now, given where we are as a country, but I'm not sure, what do we expect? Do we expect tensions to run as high as they did with Brett Kavanaugh?
Mark: No, absolutely not. In part, because, of course, the nominee has not been accused of sexual assault, but also because Democrats don't seem to have a strong appetite for theatrics this time around. Democrats have to be really careful in how they handle this. Barrett is a seemingly smart, capable, very charming person. All of her character witnesses have attested to how she's a lovely professor and a good friend.
They want to make sure that she can't frame herself as some a victim or even martyr. This is something that the Republicans have really seized on. They're trying to accuse Democrats of anti-Catholic bias, of sexism, of treating Barrett like she's a terrible human or that she's got to be a bigot because she's a Catholic, and Democrats are really tiptoeing around that. Being very careful to talk more about ideas than the actual person sitting in front of them.
Tanzina: That's going to be tricky, Mark, because the actual person is the person who, potentially, if she's confirmed, going to take this seat. What I found interesting was how Barrett echoed a lot of Ruth Bader Ginsburg, in calling her and mentioning her in a way that I think is very interesting for women in particular. Is she trying to connect with women in a specific way there, even women who might be more progressive?
Mark: Yes, I think so. I think Barrett, the White House and Republican senators are trying to frame this as a really big moment for American women to say, "Look, this is a historic nomination. She's only the fifth woman who's ever sat on the Supreme Court, if she's confirmed. She's someone who every woman should be proud of, even if they don't share her views."
I think to some degree, they may be succeeding with the American public. At least on day one. Barrett delivered her opening statements. She really stayed on the abstract level of, "Hey, look at me, I'm this very successful woman who has a big family, who's lived a wonderful life, and now I'm going to take my career to the next level." That's something everyone should be able to celebrate, whether they agree with me or not.
Tanzina: Mark, I want to talk a little bit about this idea that's come up a couple of times, that to be fair, the Democrats, including Joe Biden and Kamala Harris have really deflected on answering the question about court packing. Can you explain what that is?
Mark: Yes. The constitution does not actually set the number of seats on the Supreme Court. It's been 9 for about 150 years, but it has been, throughout all of history, as few as 6 and as many as 10 seats. Actually, Congress is the one that gets to decide how many seats there are on the Supreme Court. If Congress wants to add seats, then it's allowed to. Pretty much everybody agrees those are the rules. Court packing simply means Congress passing a bill signed by the president, that adds seats to the Supreme Court.
In this instance, as we're talking about it today, it would be an effort to dilute the influence of conservative justices like Amy Coney Barrett, if she's confirmed, by adding liberal justices who will be able to outvote her.
Tanzina: Now let's be clear. The Republicans have honed in on the Supreme Court for decades now as their real strategy, in terms of remaking and having more conservatives on the court, and they've been very successful in that. President Trump has done that in lower courts in particular. The fight for the seats in the Supreme Court has been a difficult one, particularly after the nomination of Merrick Garland and the GOP stepping in to prevent that nomination from moving forward.
I give that background because it feels like there is a lot of criticism that the Democrats may want to pack the courts, if you will, but don't they have no other choice? Hasn't it gotten to the point where politically this is just a really nasty fight?
Mark: Yes, that's what a lot of Democrats are concluding these days. For a long time, court packing was a third rail of politics. FDR infamously tried and failed to do it in the '30s, but I think the Democratic Party is looking at it a little differently these days because the choices here are not very good for them. They can either try to expand the court, try to get their caucus together if they win big in November and add seats, or they can suffer for decades under an extremely conservative court.
Let's be clear, if Amy Coney Barrett is confirmed, the Supreme Court will be way more conservative than it has been for decades. Probably not since the early 1930s. This would be a really radical change in the makeup of the court, and thus, in the makeup of really America and the laws that are allowed to exist here. I think that a lot of Democrats are saying, "Look, if our only other option is having the boots of the Supreme Court stomping on our face for decades, we've got to take core expansion seriously, because it's the only thing that will allow our democracy to survive.
Tanzina: We're hearing Joe Biden specifically has said, and I'm quoting here, that, "I've already spoken on. I'm not a fan of court packing, but I don't want to get off on that whole issue. I want to keep focused." Why is Joe Biden towing the line here when it comes to the court, given everything that we just talked about?
Mark: Biden says he wants to focus on the fight at hand, and I believe him. I think he really doesn't want to distract from this Barrett confirmation battle by changing the entire conversation about what he thinks of court packing. The goal for Democrats right now is to throw everything into the fight against Barrett. Leave it all on the field, leave all the blood and teeth on the floor, as Elizabeth Warren used to say. Really make it clear that they staunchly oppose this nominee, that they view the whole thing as illegitimate, but that's probably going to fail.
Republicans hold the Senate, Republicans seem to have the votes, and so what I think Democrats want to do is really work up a lot of productive anger and rage among the Democratic base. Then if Barrett is confirmed, have the conversation about court expansion later, after the election, when it's less of a political hot potato, when Democrats know whether they've won or not. I think Biden's obviously being evasive and elusive here, but he's doing it for pretty smart, strategic reasons. He wants everybody to be focusing on Barrett, not the hypothetical possibility of Democrats' retaliation if Barrett is confirmed.
Tanzina: Mark, there's another proposal that's being batted about, and that is term limits, and basically saying how many justices each president can appoint. What would that accomplish? How would that work and how viable is that?
Mark: The current plan is to do that through just a federal law rather than amending the constitution, because everybody knows constitutional amendments are basically impossible. The idea here is that a justice would serve for 18 years, and then after 18 years, they would be designated a senior justice, which means that they wouldn't be serving regularly, but if one of the regular justices had to recuse, or suddenly died or retired, that the senior justice could fill in. There would be nine justices all of the time, and every president would be able to appoint two new justices per term, but if there was a sudden vacancy, or if somebody had to recuse, one of these senior justices would step in.
There's a lot of questions about the constitutionality of this plan, because the constitution doesn't say anything about senior justices. This is all improvisation to fill in the gaps in Article III. I think that there's a strong fear that if Congress tries to impose term limits before expanding the Supreme Court, that the current court would strike it down, because it does not strictly comply with what the constitution seems to set out for the Supreme Court.
Tanzina: Are any of these proposals, Mark, viable, or are they just a wish list for progressive Democrats?
Mark: Well, what's ironic here, I think, is that the most viable option also seems to be the most radical one. In addition to term limits, there's these other ideas. Pete Buttigieg has this plan where you'd have 5 Republican justices, 5 Democrats, and then they'd appoint 5 independent judges, so you'd have a 15-member court. That stuff is all really untested, untried. There's not a clear constitutional path for it, but expanding the court, that's pretty easy. All Congress has to do is pass a bill and have the president sign it, and boom, you've added seats to that court.
I think there's still a sense among a lot of Americans that that's crossing the Rubicon, that that's going way too far, but that is the one option that is absolutely on the table, and that really cannot be fought in court. Once it's done, it's done. I think that Democrats, they need to absorb the loss of the Barrett confirmation, presuming it happens, and then they need to wrap their heads around the fact that, as wild as it may seem and as radical as it may appear to some people, court expansion is the one option that will obviously work.
Tanzina: Mark Joseph Stern is a staff writer for Slate, covering courts and the law. Mark, thanks so much for joining me.
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