Packing The Court?
In my last essay, “Supreme Frenzy”, I remarked how it was extremely unlikely that Democrats could derail the expected appointment of a conservative justice to the Supreme Court by President Trump. A Supreme Court nomination may, by precedent of the Neil Gorsuch appointment, be approved by a simple Senate majority (i.e. 51 votes, if all Senators are present, less if less than 100 Senators vote) which, currently, the Republicans have. Though the Democrats would have the right to filibuster (a delay by factitious “debate”), Senate Republicans could end the filibuster by invoking cloture (a fancy term, taken from French parliamentarian law, for summarily bringing debate to a swift close), the so called nuclear option. The nuclear option is a procedural rule that lets the Senate end debate on a bill with a simple majority (51 votes) rather than the two thirds majority normally required to change Senate rules. It was first invoked in 2013 by Democrat majority leader Harry Reid to clear the way for Obama’s highly partisan judicial appointments (but NOT including Supreme Court appointments), but was then, much to Reid’s chagrin, expanded in 2017 by Republican Mitch McConnell, to INCLUDE Supreme Court appointments, during the appointment of Justice Neil Gorsuch. (What goes around, comes around). So, any attempt to filibuster Mr. Trump’s coming nomination, will be stopped by invoking cloture via a simple majority, which the Republicans have.
Next, the issue of vindictive “packing the court” needs to be considered (thanks, SW). Such a scheme is surely the stuff of Democrat dreams. But can they do it?
The short answer is, no. And they key to understanding why they can’t is the fact that the majority needed for different types of vote are NOT the same. If, in 2021, the Democrats want to change the number of seats on the Supreme Court they would need to win, at the very least, the Senate AS WELL AS the Presidency. But even THAT will not be enough. Even with a Democrat Senatorial majority (heaven help us), the Republicans could still filibuster the bill. According to Wikipedia:
Under CURRENT Senate rules, a rule change could itself be filibustered.
And, the only way the Dems could stop such a Republican filibuster would be to invoke cloture. But:
Although the majority required to invoke cloture for MOST Senate business, is three-fifths of the Senate (60 votes), invoking cloture on a measure or motion to amend the Senate’s standing RULES requires the votes of TWO THIRDS of the Senators (67 votes).
So, even though cloture can be invoked with only 51 votes on Presidential Supreme Court NOMINATIONS (as explained above), rule changes, such as changing the number of votes required for cloture, need a minimum of 67 votes, which, is NOT, even in the Democrat’s wildest dreams, going to happen.
So, unless the Dems win the Presidency AND gain a 67 vote SUPER MAJORITY in the Senate, I would say, in the vernacular of one Mr. Joe Biden (in his phony southern black drawl), “they ain’t gonna be packin’ nuttin’!”
Same goes for giving statehood to Puerto Rico and the District of Columbia. And, by the way, any applications for statehood would have to be endorsed by the people of those states via plebiscite. But the residents of Puerto Rico have repeatedly rejected full statehood, because, with full statehood comes… full taxes!
So, all of the bluster we are hearing from the Dems right now is just that, bluster. So, Mr. President, Mr. Majority Leader and Mr. Judiciary Chairman, DO NOT be intimidated or cowed. Press on! You are invincible.