Legal Law

Court docket Packing Has A Dr. Strangelove Drawback

How are we all doing after last night’s debate? Sorry about that.

Ultimately, the VP debate was true to form as irrelevant filler content between presidential debates. Harris exploited the split screen format to deliver non-verbals far more devastating that Trump’s efforts to verbally derail Biden could ever hope to be, Mike Pence remains devoid of charisma, and a fly became the star of the show for 2 minutes. At one point, Susan Page must have contemplated asking a question in Klingon just to see if it would have any impact on the stream of talking points proffered as answers. But there was at least one exchange that was salient to the legal landscape.

Mike Pence asked Kamala Harris for a straight answer on whether or not the Democrats will pursue court expansion when they get into office. She declined to provide one. Which is a shame because there are only two politically useful answers to this question: “yes” or “no.”

The idea of responding to the vacancy created by the death of Justice Ruth Bader Ginsburg by adding 4 new seats to the Supreme Court has become vogue in some liberal legal circles. It is a bad idea. One of the first rules of any conflict is to watch how the adversary reacts and Mitch McConnell’s complete disregard for an idea posed as a direct threat should give everyone pause. There’s a reason why the increasingly irrelevant SometimesTrumpers at the National Review are the only ones to decry this idea — Republicans love it! It manages to give them their coveted “both sides” narrative and presents a scenario they’re structurally better suited to exploit because they have a baked in advantage with the antidemocratic U.S. Senate map.

Pence asked about this idea last night for a simple reason. Republicans may be evil, as Elie Mystal is fond of saying, but they’re vampire evil in that they do their biggest damage only after they’ve been invited. It doesn’t even have to be an engraved invitation — anything resembling permission is good enough for tearing down government work. Harry Reid limited his filibuster nuking to lower courts, but that was enough to provide McConnell the green light to eliminate it for the entire judiciary. Trump has already publicly mused that merely flirting with court expansion provided Republicans with permission to do it themselves. If he still held control of the House of Representatives, perhaps we’d already have seen it.

The evasiveness from Harris was certainly more promising for expansion advocates than Biden’s prior statements where he correctly noted that Democrats would “live to rue that day” if they tried to expand the Court. But if this idea has gained traction within the Biden campaign, they need to understand that this isn’t the sort of proposal that works as tea leaves. This brings us to the lessons of Dr. Strangelove. If you’re looking to avoid spoilers for a 56-year-old movie, stop reading now.

Dr. Strangelove turns on Russia’s invention of a “Doomsday Machine” that will destroy the world if anyone ever attacks them. The conundrum for the film’s characters is that this device only works as a deterrent if everyone knows it exists.

If court expansion is on the table, its only value is to be declared early, loudly, and clearly. It has to be articulated as the tit-for-tat result of an Amy Covid Barrett confirmation and justified as a response to the Merrick Garland nomination — which still polls in favor of the Democrats. Would this threat stay the hand of Republicans? No, because expansion is the dream scenario for them. But if this is the play Democrats are eyeing, then the Biden ticket needs to make up its mind because half-assery gets them nowhere.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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