The Dems will not pack the Court unless the Court starts striking down all liberal initiatives.
The fact is Pubs have gotten what they always wanted: An activist Conservative Court.
Fake News. Most the Conservatives are textualists not consequentialists.
Dems want a Supreme Court with litmus test confirmations where Senate votes are conditioned on pledges.
Dems vote against those who do not swear a blood oath to uphold Roe and the ACA.
Most of the nominees practice the Ginsburg rule, that it is unethical to comment on cases or issues that might come before them. In her confirmation hearing in 1993, she refused to give the answers that Dems now demand from her potential successor. In calling to protect the legacy of Ginsburg, these politicians have to first tear down the Ginsburg rule. They demand that Barrett and other nominees commit to supporting specified cases while pushing them to reverse other cases, such as Citizens United versus Federal Election Commission on campaign finance.
Dems are practicing a direct litmus test. Not only will they vote against a nominee who opposes a particular case, but they will do so for a nominee who does not expressly support a case. Even if a nominee like Barrett has a foundation in the law, it is how she will vote on certain controversial cases instead of her views that will matter.
Such conditional votes were rejected before the Ginsburg rule. Presidents since Ronald Reagan have pledged not to apply litmus tests. Past sessions of the Senate under the control of both Democrats and Republicans have maintained it is wrong to demand assurances on certain cases and claims. Indeed, many current members of the Senate supported Elena Kagan and Sonia Sotomayor in refusing to discuss their views on abortion.
Dems use litmus tests for cases such as Obergefell or cases in favor of environmental or other rights. Dems demand preserving of some precedents while demanding commitments to reverse Citizens United. If forced to give such assurances in confirmation hearings, then justices could face later claims of perjury if they changed their minds or voted differently on the Supreme Court. Nominations would become a series of pledges of positions to secure votes in the Senate.
For the scheme to pack the Supreme Court proposed by Kamala Harris and others to work, there must be litmus tests. Dems have pledged to add new justices to ensure a bench that would vote on cases as desired. Absent such promises, the scheme is a futile exercise. The whole point is to force outcomes such as voting to uphold Roe.
Litmus tests and packing the bench would not honor Ginsburg. They would instead destroy the Supreme Court she loved. These moves obliterate an institution that has preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will evaporate if Dems continue litmus tests or pack the bench.
Biden has refused to say if he supports packing the Supreme Court. Many Americans would not vote for a candidate who supports packing the bench with more justices. Biden refuses to give his position on an important issue backed by his own running mate and other leading Democrats this year.
Ginsburg articulated her rule because she saw litmus tests as unethical pledges. At the time, Democrats like Howell Heflin praised her position. Today, Democrats want to pack the Supreme Court and seek assurances from nominees on cases like Roe, which are two ideas staunchly opposed by Ginsburg. What is left behind is not principle but raw power, and both the Supreme Court and the country will be the worse for it.
Joe Biden has not buried this move if he wins.
thehill.com