A Judical Coup

E. J. Dionne doesn't mince words. He writes in this morning's Washington Post:

The Supreme Court’s legitimacy is in tatters. Conservative forces in the country, led by the Republican Party, have completed a judicial coup, decades in the making.

And the level of hypocrisy behind it all is stunning:

More recently, Senate Republicans kept the late Antonin Scalia’s seat open for more than a year, refusing Merrick Garland, President Barack Obama’s nominee, either a hearing or a vote. Neil M. Gorsuch, a far more conservative jurist, took the seat instead.

Now comes Kavanaugh. In blocking Garland, Republicans said it was urgent to wait until after the 2016 election to let the voters speak. They rushed Kavanaugh through to get him onto the court before the voters could speak in 2018. When power is all that matters, consistency is for suckers.

What is also stunning is that all of this was achieved by the minority party:

A generations-long conservative majority on the court has been cemented in place by a political minority. Kavanaugh was named by a president who won 46 percent of the popular vote and confirmed by senators representing 44 percent of the population. When you lack a majority, controlling the branch of government not subject to the voters is vital to working your will. 

The Republicans want to control the court because they have not been able to generate majority support for their program. A photo from the 1992 Democratic convention has been making the rounds these days. The picture was taken at the end of the convention, when Al and Tipper Gore and Bill and Hilary Clinton were on the platform. The caption under the photograph read: "Three of these people won the popular vote. Only one became president."

It has, indeed, been a judicial coup. What's Dionne's remedy? Expand the court:

If Democrats take control of the House, they should hold hearings on the administration’s manipulation of the FBI investigation. These could also shed light on the extent to which Kavanaugh misled the Senate.

And there should now be no squeamishness about the urgency of enlarging the Supreme Court if Democrats have the power to do so after the 2020 elections. The current majority on the court was created through illegitimate means. Changing that majority would not constitute politicizing the court because conservatives have already done this without apology.

During the 19th Century, the court was expanded seven times. If Democrats win the House, you can bet that lots of changes will be coming down the pike.

Image: Smithsonian Magazine