Back in 2000 the German National Soccer Team (“Die Mannschaft”) suffered an embarrassing set of defeats at the UEFA European Championships in Belgium and the Netherlands. The Mannschaft tied with Romania, lost to England, and then was humiliated by the Portuguese “B” Team, which had already qualified for the next round. Although blessed with a cornucopia of talented players, the German team was in serious disarray, which caused the national association to decide to rebuild the team from the ground up. It took a while, but fourteen years later they won the World Cup in Brazil, including a legendary 7-1 upset of their Brazilian hosts. The rebuild was complete.
Why do I bring this up now? Because it is important to know when you have to rebuild.
And the Democrats have to completely rebuild their strategy relative to the judiciary.
As most everyone knows, Amy Coney Barrett was elevated as the 115th justice of the Supreme Court. With that elevation, Republican Presidents have now picked 15 of the 19 most recent Supreme Court justices, even though Republican candidates have lost the popular vote in six out of the past seven presidential elections.
We’ve been had.
And you have to give credit where credit is due: to Mitch McConnell and to the Federalist Society, which have had a singular focus on the court for decades now.
McConnell, of course, was completely unapologetic about his stark hypocrisy, or about blowing up the norms of the Senate. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” he said in his speech on the Senate floor. “They won’t be able to do much about this for a long time to come.”
And he’s right.
He’s absolutely right.
We won’t be able to do much about this unless, of course, the Democratic team collectively can grow a pair of cojones.
Large cojones.
With control of the House, the Senate and the Presidency in 2020 – which looks increasingly likely – there are some things that we can do.
If we have the balls.
It turns out that the Constitution gives the Congress a great deal of latitude in regulating the entire federal court system, including the Supreme Court. Things that could be done include[1]:
- Court packing, by increasing the size of the court from 9 justices to 11, 13, or even 15.
- Giving justices term limits, most likely a single 18 year term.[2]
- Regulating which cases the court can hear, by having rotating panels of appellate judges select the cases.
- Expanding the lower federal courts, allowing the courts to hear many more cases in a timely fashion.[3]
- Reconstitute the Supreme Court to work more like a federal court of appeals, where rotating panels of justices would hear cases, with an option of en banc review.
- Create a separate constitutional court, to hear constitutional questions only, while leave the Supreme court intact to hear questions related to federal statutes and regulations.
All of these suggestions have pros and cons, and not being a Constitutional scholar myself, I don’t currently have a strong opinion on which option should be pursued.
This is also why Joe Biden has proposed creating a bipartisan panel of Constitutional experts to make those kinds of recommendations.
I honestly don’t know yet what the right thing to do is. But it seems clear to me that something must be done. If Democrats do win the House, Senate and Presidency together in 2020, the window to do anything might only be two years long. So whatever we do, we had better do it quickly.[4]
Republicans are hoping that ABC’s elevation will motivate their voters to come out to the polls, but that might blow up in their faces. The deed has already been done. On the other hand, the brazen way that this was accomplished has made a lot of Democrats furious, and made them furious at a moment where they can do something about it.
I could be wrong, and I’ve been wrong before[5], but I sense that there might be a Democratic tidal wave coming on.
[1] Most of these suggestions come from an article in the New York Times, which solicited these suggestions from Constitutional scholars.
[2] This would require a constitutional amendment, but could be pared with a change in the Constitution to keep the number of justices at nine. Packaged in this way, it might get support from the conservative side of the aisle.
[3] Only a very small percentage of federal cases go up to the Supreme Court, so this could actually make a difference.
[4] Since we don’t yet know exactly who will be in the Senate in 2020, it’s hard to make predictions about 2022, but at the moment it looks like Democrats and Republicans will be defending an equivalent number of seats. Historically, mid-term elections can be difficult on an incumbent President’s party.
[5] I was wrong in 2016, but then everybody was wrong in 2016, including – as has been well established by now –the Trump campaign. It is now well known that Trump began his 2016 campaign primarily as a “branding” exercise.
