“The takeaway is that this is an illegitimate process.”
Multiple Senate Democrats are already refusing meetings with President Donald Trump’s Supreme Court nominee, and there’s now a growing call for them to take another step to question the legitimacy of the process: boycott the confirmation hearing.
“I think that boycotting the hearing should continue to be on the table,” Demand Justice chief counsel Chris Kang tells Vox. “I think the takeaway is that this is an illegitimate process.”
Demand Justice, a progressive group dedicated to combating Trump’s remaking of the federal judiciary, is among those urging Senate Democrats to consider this option as Republicans try to rush through a confirmation for Judge Amy Coney Barrett in the coming weeks. As the Washington Post’s Seung Min Kim and Paul Kane report, however, it’s a move that could also backfire and enable Republicans to simply advance her nomination even more quickly, with little fanfare.
But much like lawmakers’ decisions not to meet with Barrett, the idea is that such an act would highlight how abnormal the current process is, particularly since a recent hearing with Justice Brett Kavanaugh didn’t deter many Republicans from voting the same way they would have otherwise.
“If the hearings for Brett Kavanaugh did not change any votes, neither will these hearings,” writes Adam Jentleson, a former deputy chief of staff to former Sen. Harry Reid, in a New York Times op-ed.
Senate Republicans, after all, are moving ahead with this nomination despite the impending election and claims they made in 2016 about not confirming a judge during an election year.
Demand Justice is dedicated to opposing Barrett and pushing Senate Democrats to consider a wide range of tactics as they navigate the Supreme Court fight in the short term and the long term.
The procedural tactics available to Democrats, admittedly, are “probably not as robust as people think” in the near term, Kang said.
In an interview with Vox, Kang laid out what these options include, how Demand Justice is pressing lawmakers before the hearings, and what Democrats should consider (court-packing) if they retake the upper chamber and White House. Read the conversation, which has been edited and condensed for clarity, below.
Let’s start with the short term. Could you talk about the procedural tools that Senate Democrats have to oppose the Supreme Court nomination right now?
So I think that the literal procedural tools are still to be determined and probably not as robust as people think.
I do think that there are some things like objections to unanimous consent agreements that will be deployed closer to the time of a floor vote, and not something that necessarily make sense now. [Note: Because the Senate largely runs on unanimous consent, if one senator objects to an action that’s taking place, they are able to delay it from happening and slow the chamber’s productivity.]
But I think what we’re really looking for from Senate Democrats more than specific parliamentary tactics is how are Democrats going to show that this is an illegitimate process, that this is an illegitimate nominee. And so there are some things that there’s no question Democrats can do, like not taking courtesy meetings.
I think that boycotting the hearing should continue to be on the table.
What do you see as the takeaway, if Democrats go that route of boycotting the hearing altogether?
I think the takeaway is that this is an illegitimate process, it’s not a legitimate [nomination], and it shouldn’t be dignified as such.
I think there are some competing arguments for what Democrats could gain through a committee process or a committee hearing. But I think a lot of those run through the idea that this is business as usual. And so again, I know that boycotting is a high bar to ask and … candidly, I don’t expect that to happen. But I think that it should continue to be on the table. I think all options should be on the table for how they’re going to think about highlighting this sham process and this illegitimate nominee.
And so I think that has to be something; they have to show up in some way.
I don’t think the Democrats can just show up and question a nominee as if it were normal. So you know, if you’re not going to boycott the hearing, fine, but then show up in a different way. And let’s highlight to the American people just what’s at stake and how this is different.
What is your response to concerns that Democrats would be missing an opportunity to question Judge Amy Coney Barrett and make their case against her if they boycott the hearing?
A nomination so close to the election is simply illegitimate, and Democrats should consider all options to highlight that.
For example, [Senate Minority] Leader [Chuck] Schumer is refusing to meet with Barrett. Others, including Senators Merkley, Hirono, Blumenthal, and Gillibrand are refusing as well, and this is the kind of demonstration we need.
Boycotting the hearing could cut either way, but if Democrats do attend, we’ll be looking to them to show that this is not a normal hearing or business as usual.
At this point, do you think that Senate Democrats should more explicitly commit to court-packing?
I don’t know if Senate Democrats as a caucus need to do that per se. I will say that they have to start looking ahead.
I mean, right now, our focus is on stopping this nomination, and building the voice and the power to demonstrate to Senate Republicans what is at stake here for them. But at the end of the day, if we are not successful, I definitely think Democrats need to be thinking about what is the logical response when Republicans steal two Supreme Court seats in the span of four years and completely undermine our democracy and the legitimacy of the institution itself.
And so from our perspective, we think that Supreme Court expansion is the only way to restore balance. And it absolutely should be on the table. I think that Leader Schumer has done a good job of making clear that all options are on the table. I think that that will continue to be the posture right now.
But I understand if not every member wants to make this about — this debate should not be about court expansion — this debate should be about the Republicans pushing through a nominee who’s about to strike down the Affordable Care Act. So I think that just as that is Demand Justice’s message in this fight, I understand that that will likely be the Senate Democrats’ message in this fight. But I do think that the specter of court expansion has to be something that more and more Democrats will be forced to think about more seriously in the weeks to come.
Could you talk a little bit more about some of the implications of court-packing? We talk about it a lot in terms of how it would change the makeup of the court, but could you walk through some of the other potential benefits?
I will say the part about the makeup of the court is an important one, because I do think, at its core, we’re talking about restoring balance to the court, and I realize balance may be in the eye of the beholder. But we’re at a point now where the Supreme Court looks like it’s an anti-democratic institution. The Democratic presidential candidates have won the popular vote in six of the last seven presidential elections, and yet Republican appointees have been the majority on the Supreme Court for more than 50 years now.
But then also … the caseload for the Supreme Court has gone down dramatically over time, and I do think that it’ll be important for the courts to think about, like, why is that? What is driving that? And would having additional justices help the court resolve some of these important legal disputes that it currently isn’t? I do think that adding more justices would be important.
I also think there’s nothing magical about nine. I’ve never seen any study, any analysis, any theory about why nine is the right number. Look at the other appellate courts throughout the country. And, you know, all of them but one has more than nine members. I think that there’s no reason not to have more justices who also could bring, I think the other thing I would say is like bringing a diversity of perspectives to the court I think is incredibly important. Like the number of prosecutors on the Supreme Court, I think, is four. But I do know that there has not been a Supreme Court justice who’s represented criminal defendants since Thurgood Marshall retired.
That is a critically important aspect of the court as you think about this moment in criminal justice reform and police reform, as you think about how the Supreme Court refuses to take up issues like qualified immunity and how it considers other racial justice issues.
Having more balanced professional experience would be important, and then also, obviously, the Supreme Court does not look anything like our country. And so I think having more seats will also provide an opportunity to bring more racial and gender diversity to the court. And again, the perspectives of more Americans on the court.
It’s a democratic institution and it should reflect the people that it serves. I think that that is one of the sort of undersold problems with President Trump’s judicial nominees, that he is undermining the legitimacy of an entire branch of government when his appointees are the least racially diverse in a generation, and still don’t come anywhere close to gender parity.
I know you said nine is not necessarily a magical number. If court-packing were to move forward, what number of justices do you think would be the right number?
In my opinion, I think 13 is the right number if they’re going to move forward with essentially stealing another seat from the next Democratic president.
I guess we could wait and see. I think this whole conversation is predicated, of course, on former Vice President Joe Biden becoming president. So if that’s the case, then this is a seat that by all precedent should be filled by him, and so the idea that Republicans would have stolen two seats in four years I think requires two seats to be added for each of those. And so that’s why I think the right answer is 13.
What do you make of the argument that if Democrats move forward with this that, down the line, you’re going to see Republicans effectively do the same?
To that, I would say that Republicans already have done it.
Republicans changed the size of the Supreme Court in 2016 to eight, and then they changed it again to 9 in 2017, all in an exercise of raw political power. And so I do think that it’s possible that Republicans might retaliate in turn. But I also don’t know that the possible threat shouldn’t be enough to stop Democrats from doing what’s necessary now.
And it sort of again, I mean, necessary in terms of restoring legitimacy to the Supreme Court. Especially injecting the raw partisan politics into the Supreme Court right now, I would suspect, makes Chief Justice Roberts very nervous, as somebody who tries to — I don’t think he’s right in this — but he projects that there are no Trump judges and no Obama judges. And yet here we are, in the midst of the closing weeks of an election season, I mean, votes are actually already being cast, watching Donald Trump and Republicans ram through a nominee to put on his court.
The whole specter of the legitimacy of the court is under a cloud. And I think that Democrats have to respond, I think that the Democrats, if Republicans are going to cheat or steal, I don’t think that Democrats can just let that go and hope it doesn’t happen again.
It’s happened now twice in four years, and there has to be some response, there has to be something to deter, or else it will keep happening again. So I think that that argument is somewhat overstated. I also will say, like, a big, big picture, as you think about what Supreme Court reform could look like, the other thing that we’ve talked about is term limits.
And if you had term limits, that would have the potential of lowering the temperature on a lot of this, and really having a chance to sort of take away the politicization and sort of the political timing a lot of justices make when it comes to retiring, so that could be a longer-term solution.
Between term limits and adding more justices to the court, do you see one of those as being, just from a legislative perspective, more of a first step and more of an accessible thing for lawmakers to do?
Well, I think that the one thing that is clear is that Congress has the power to change the number of seats on the Supreme Court. It’s done it seven times in history. And so from that perspective, I think that it’s easier.
I think that there are term-limit proposals that can be done in legislation. But I think there’s some people who don’t. I think that that may be a different question that Congress will have to consider as it figures out which proposal to implement and how to proceed with that.
On either of those, I’m wondering if you think ultimately that Senate Democrats will have the political will to get something done and the numbers to do it, given the fact that some of the potential newcomers might end up taking more moderate stances.
I will say that I think it’s far too early to consider the political feasibility of this. We haven’t seen just how badly this could turn out for Republicans going so far against the will and the views of their constituents.
So one, this could have a bigger difference in terms of the outcome in November. But two, we’re talking about all of this in a hypothetical. I think that if a nominee actually were rammed through, I think the politics start to change.
If that justice then becomes the deciding vote to strike down the Affordable Care Act, I think the politics change. I think that we can’t project too much based on the sentiment right now, about what’s possible. But I do think this conversation is already sort of taking off in a different direction.
We have the chairman of the House Judiciary Committee talking about this as the next step, and he’s somebody who has the power to set the agenda and legislation. I think that this political conversation is only beginning.
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Author: Li Zhou