Supreme Court expansion could follow confirmation of Ginsburg replacement, activist says

“Everything is on the table” to stop President Trump from creating a hard-right majority on the Supreme Court, Nan Aron, president of one of Washington’s leading progressive advocacy groups on justice issues, told Yahoo News on Monday. This might include expanding the number of justices on the court should Justice Ruth Bader Ginsburg’s seat be filled before the election or in a lame duck session should Joe Biden win.

“At this point, if they ram through another justice on the Supreme Court, they’re essentially saying, ‘Look, these are politicians in judicial robes, we’re going to see the court as a political institution,” Aron, president and founder of the Alliance for Justice, told the Yahoo News “Skullduggery” podcast. “Six justices will represent just a small segment of the American population. I do think in that instance it's important to reassert balance on the Supreme Court.”

Aron is helping to spearhead the left’s effort to block Republicans from filling Ginsburg’s seat. She said Republicans appear to have the votes they need and that expanding the court’s size may be the only way to ensure the Supreme Court more accurately represents the country.

“It will be absolutely necessary to ensure everyday people get a fair shake at the Supreme Court,” Aron said, referring to expansion. “Republicans see the courts as pathways to power. Democrats see the courts as pathways to justice.”

Meanwhile, Edward Whelan, a conservative lobbyist and court observer, told “Skullduggery” that he believes Trump and Senate Republicans should push through a Supreme Court replacement for Ginsburg even if the president loses the election and the Republicans lose their Senate majority.

“The president ... is president until the new president is sworn in; the Senate is the Senate until the new Senate is sworn in so, yes, they should exercise their responsibilities,” Whelan said when asked if it is appropriate for Republicans to push a replacement justice through even if they were to be rejected in November by voters.

Whelan, president of the Ethics and Public Policy Center in Washington, said Republicans should have enough time to vet and vote on a replacement before the Nov. 3 presidential election, making the prospect of a so-called lame duck Senate installing the next Supreme Court justice unlikely. He said it is more probable that Trump will select someone who the Senate has very recently appointed to an appellate court judgeship, which will make the vetting process relatively fast-moving.

Mitch McConnell
Senate Majority Leader Mitch McConnell. (Kevin Lamarque/Reuters)

“Unlike say back when I handled Ruth Bader Ginsburg’s nomination to the Supreme Court in 1993 and we had 13 years of a judicial record to wade through and we managed to do that very quickly, here there is going to be a very small additional record to go through and I think the Senate ought to be able to be both swift and thorough,” Whelan said.

Whelan defended the Republicans’ right to push the Supreme Court pick through despite their 2016 refusal to consider Obama nominee Merrick Garland for the court on the grounds that it was an election year. At the time Sen. Lindsey Graham, now the head of the Senate Judiciary Committee, pledged that Democrats could “use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term you can say, Lindsey Graham said, ‘Let’s let the next president whoever it might be make that nomination.’”

Whelan said he can’t imagine why Graham made such a pledge, calling it an “ill-advised statement in the first place.”

“It’s good that Senator Graham is seeing straight on the matter now,” Whelan added.

Sen. Mitch McConnell and other top Republicans have defended their plans to move forward with replacing Ginsburg quickly, saying that they have a mandate to do so since they control the Senate and the White House. If it proves impossible to get a nominee confirmed before the election — a scenario many observers see as likely — that could push the process into the lame duck session, when the Republicans may no longer have that mandate if they lose the race for the White House and control of the Senate, as many polls now indicate is possible.

Aron said she has never seen progressives more galvanized over judgeships and she predicted that a Republican push to get a far-right nominee confirmed right before the election will “translate into wins [for Democrats] in the election.” Still, Aron wasn’t overly confident that the Republicans can be stopped from moving ahead to replace Ginsburg.

“They can do whatever they want,” Aron said. “We’ve seen before that they’re willing to break traditions and dismantle customs.”

Aron said that unlike former President Obama, who she said exercised great discretion when picking judges, Trump has shown a tendency to appoint judges who are on the extreme far right of the political spectrum.

The two top contenders viewed as in the running for Ginsburg’s seat are Amy Coney Barrett and Barbara Lagoa. Aron said both have shown a strong conservative bent and she expects each would vote to overturn the landmark abortion decision Roe v. Wade.

Whelan dismissed Aron’s suggestion of an expanded court to achieve more balance, saying it would destroy the court in the name of saving it.

“Republicans will add two more,” Whelan said. “Soon we’ll have a 67-member court and it will not be regarded as a court at all. Those who purport to care about the court as an institution, I find it very strange that they’re proposing this sort of court packing.”

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