[bryan]

So here's what I think:

The problem all started with the Republican Senate's refusal to move the Garland nomination forward. 9 months prior to the election (>11 months prior to next president taking office) was clearly PLENTY of time to conduct hearings and have an up/down vote on the nomination. But their argument was that a Supreme Court seat vacated in an election year should be filled by the next president because it should reflect the will of the people, who would have their say later that year.

They used that argument despite there being a fairly recent precedent to having an "opposite party"-led Senate approve a President's nomination in an election year: In 1988. an election year, a Democratic-led Senate approved Republican President Ronald Reagan's nomination of Anthony Kennedy.

So they tried to establish a new rule, attempting to justify it with noble, idealistic-sounding reasoning.

Now, if the Republican Senate simply said "We refuse to move the nomination forward, because we have the power to kill it" . . .well, that's clearly obstructionist politics, but at least it's truthful. The problem with that is they could choose to kill nominations in any year - the 1st, 2nd, 3rd, or 4th year of an opposite-party President's nomination. And that's clearly not how government is supposed to work, so they linked it to it being an "election year".

So, to me, that's really where the problems started.

Now, with the Ginsburg vacancy and Barrett's nomination, Democrats argued that the election year precedent of 2016 was reason to leave the seat vacant until the next President could select the nominee. Since Republicans could no longer use the previous "election year" argument since the 2020 vacancy occurred more than 7 months closer to the election than the 2016 vacancy, they changed their reasoning to say that a same-party Senate and President can/should fill a vacancy. There's no logic to that argument, but at least it gets us closer to the truth that "the results" outweigh consistency in logic.

I would argue that the contradiction in logic between 2016 and 2020 is itself a form of Republican court-packing - manipulating the make-up of the Supreme Court by not following consistent rules and standards in the nomination/approval process.

My assertion is that a nomination by any sitting President, even in an election year, should move forward. A President's term is 4 years and their right to nominate a Supreme Court candidate should hold for those 4 years. The people will have their say in an election, and when their choice for President takes office the following January, they will also have their 4 years to make their nominations.

Now if a vacancy occurs too close to the next inauguration and turnover in the Senate, then there may not be enough time. And games can be played by both sides to try and speed things up or slow things down (to beat or run out the clock), so I think there should be a bi-partisan agreement on what time is sufficient to run through that process.

Using that argument, the Garland blockage was not valid and the Barrett nomination is valid. So the Republicans effectively "stole" one Supreme Court seat.


As far as what to do about that: If the Democrats win the Presidency and the Senate, I think they have a reasonable basis for adding two Supreme Court seats to mitigate the effect of the stolen seat. I don't think I need to explain in detail, but it basically takes two extra seats to undo the effect of the stolen seat and restore the balance back to what it would have been had the seat never been stolen. The Republicans would still have a 6-5 advantage on the court, but that "advantage of 1" would have been there even had Garland been confirmed and Trump had his two valid nominations.

Even though it expands the number of justices by 2, I don't see that as Democratic "court packing" - I see it as undoing the effect of an obstruction that never should have happened. I would be dead against the Democrats adding 4 seats to gain a 7-6 advantage. That, to me, would be simply taking advantage of a majority and would indeed be court packing.

Had the Republicans blocked Garland, BUT remained consistent with their own logic and left the Ginsburg seat vacant, I would argue that nothing should be done.

As an aside: I also think both parties need to agree to raise the standard for the number of votes required to confirm a Supreme Court nominee. A simple majority makes it too easy for the majority party to force through an extreme justice and with lifetime appointments and the stakes being as high as they are for the highest court in the land, I believe the standard should be higher to make it possible to confirm moderate justices and hard to confirm extreme justices.

OK, I've had my say. What do you all think is fair and reasonable?