- - Monday, April 19, 2021

Democrats are in complete power in Washington. They control the House of Representatives. They control the U.S. Senate. They control the White House. That isn’t enough, however, they want more. They want permanent control and if that means ignoring centuries of history, precedent and tradition, so be it. If that means misleading the American public, that’s OK, too. Just win baby.

This week a bill was introduced by Democratic Sen. Ed Markey of Massachusetts, and Reps. Mondaire Jones of New York, Hank Johnson of Georgia and Jerrold Nadler of New York, the chair of the House Judiciary Committee, to expand the size of the Supreme Court. Why? Control. Complete control.

The U.S. Supreme Court has had nine members since 1869. It has been an impressive, if not perfect, judicial body, balancing the advancement of technology and culture with the intent of the Founding Fathers vision as laid out in the U.S. Constitution. According to Messrs. Markey, Jones, Johnson and Nadler, however, it’s time to change the court. They wish to expand the number of justices to 13. Of course, Joe Biden will get to appoint those four new members and the Democrat-controlled Senate will give a thumbs up or down to his choices.

This is the most outrageous naked grab for power in my lifetime.

What may have been most shocking is that the bulk of the reasoning and rationale presented by the foursome at their press conference had nothing to do with the Supreme Court workload or representation but instead they admit their move is intended to correct a perceived imbalance in the court, what they called a shift to the radical right.

This is poppycock of course. According to the Supreme Court Database, between 2000 and 2018, unanimous court decisions have been more likely than any other result — averaging 36% of all decisions. Even when the court did not reach unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15% of decisions. In other words, an overwhelming number of the justices agree most of the time.

Congressman Jones spectacularly ignored these facts during the presser, declaring “there is now a hyper-partisan supermajority on the Supreme Court that is hostile to democracy itself. And so court expansion must be part of the response to that if we are to save our democracy.” Mr. Jones went on to complain about voter suppression efforts “like what we are seeing now in Georgia.” The State of Georgia recently passed a law that limits advance voting to 17 days and prohibits people approaching voters in line with food, water or other gifts. Both have been roundly criticized by the left as racist attempts at voter suppression.

Mr. Jones failed to mention that his own state of New York prohibits “providing meat, drink, tobacco, refreshment or other provision with a retail value of more than $1 within 100 feet of the entrance to polling places,” according to the National Conference of State Legislatures. New York also only requires 10 days for advance voting, a full week less than Georgia. So what is it that makes the Georgia law racist? Nothing except the fact that Democrats say so.

Being misleading, however, seems to be second nature to Mr. Jones. He says Chief Justice Roberts is a partisan hack. He repeatedly took to task “the Roberts Court” for being radical right-wing conservatives, but the Supreme Court record doesn’t support that moniker. Not even close.

In fact, Chief Justice Roberts is anything but a dependable conservative. He joined the four liberal justices and wrote the majority opinion regarding the Trump administration’s attempt to undo President Obama’s executive order on DACA. In 2012, Justice Roberts was the deciding vote on the legality of Mr. Obama’s Affordable Care Act, justifying it while simultaneously accepting that it was unconstitutional. In the current Supreme Court session, Justice Roberts was the key in a 6-3 decision which interpreted the 1964 Civil Rights Act to have meant gender identity. Fellow “radical right” Justice Neil Gorsuch joined Justice Roberts and the majority in the decision.

Justice Roberts also joined the liberal justices in rulings that make workplace discrimination against gay and transgender people illegal, protect young immigrants from deportation and struck down a Louisiana law that restricted abortion providers. Where exactly is the claimed “radical right” court? It exists only in Mr. Jones’ mind. 

The congressman tossed out statistics that he said justify the bill and the effort to bring his kind of balance back to the court. He said that Republican candidates have lost the popular vote in 7 of the last 8 presidential elections yet only 4 of the last 19 Supreme Court justices have been appointed by Democratic presidents. 

Apples and oranges. Grossly and intentionally misleading. The last 8 elections take us back to Bill Clinton (1992). The last 19 justices takes us back to the 1970s and include a stretch from Richard Nixon through the first George Bush where the American public chose Republicans, with a majority vote, 5 out of 6 elections. 

This highlights several problems with the Democrat’s argument. First, his numbers are intentionally misleading. Second, several of the 19 appointments he refers to came during a run where Republicans won 5 out of 6 presidential elections, so of course they would have more SCOTUS appointments. 

A more reasonable look at whether the system we have now provides a balanced court would be using Mr. Jones’ example of the last 8 elections. First, the electoral college has always been the way we elect our president, so that every state has a proportional voice, thus his “popular vote” issue is a red herring. More importantly, the actual record shows nearly perfect balance. During Mr. Jones’ time period, Mr. Clinton appointed two justices. George H.W. Bush appointed two justices. Barack Obama appointed two justices and Donald Trump named three justices. Final tally? Four Democrat appointments and five Republican appointments, including one who frequently votes with the liberal wing of the court. Amazingly balanced. 

Adding four more seats, selected by this sitting president would knock that balance completely out of whack. Don’t just take my word for it; take the word of two of the most liberal Supreme Court justices in recent memory. 

In 2019, liberal hero and icon, Justice Ruth Bader Ginsburg said “I have heard that there are some people on the Democratic side who would like to increase the number of judges.” Ginsburg continued “I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court. Nine seems to be a good number, and it’s been that way for a long time,” 

Ginsburg went on to share her concern about any such move to pack the court. “If anything would make the court appear partisan it would be that,” she said. “One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to. So I am not at all in favor of that solution to what I see as a temporary situation.”

Ginsburg was not alone. Earlier this year, sitting Justice Stephen Breyer, a reliable liberal vote, warned that efforts to expand the court’s bench could damage public faith in the institution, stating that Americans rely on “a trust that the court is guided by legal principle, not politics.” 

Mr. Jones, who has served in Congress for only a few weeks, would do himself well to listen to the two liberal justices who have a combined total of 54 years on the Supreme Court. His shameless political grab at power would undermine the credibility of the court and cause irreparable harm to a nation. 

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