Amy Coney Barrett likely will be confirmed to the Supreme Court on Monday.
It’s a vote that should have been postponed until after the presidential election. Senate Republicans, as everyone remembers, refused even to hold a hearing on President Barack Obama’s Supreme Court nomination in 2016. Why? It was an election year.
The people need to decide, but they won’t get a say.
With the requirement for a supermajority of Senate votes to confirm a justice now gone, all the Republicans need to place Barrett on the Supreme Court is the narrowest of margins. Her confirmation means the right-wing tilt of the court will be cemented, perhaps for a generation.
This matters to ordinary Americans on a host of issues: voting rights, equal marriage, health care and, yes, the ability of women to make reproductive choices.
Should they win a Senate majority and the presidency, Democrats should enter 2021 ready to govern. That could mean Supreme Court reforms, but most of all, it means passing legislation.
There must be a new Voting Rights Act to increase access to the ballot even when states try to limit participation. There must be legislation to defend all marriages so that gay men and women, joined lawfully, do not have to worry about an unelected body rendering their unions illegitimate.
There needs to be a federal law so women are guaranteed reproductive freedom. The Affordable Care Act must be shored up so that in the midst of a pandemic, citizens do not lose access to health care.
All are basic rights that had been protected by the Supreme Court — though likely no longer.
And, yes, there must be a concerted effort to reform the judiciary. Democratic presidential candidate Joe Biden has been criticized by his party’s left wing for being cautious about expanding the Supreme Court. Caution is not a bad thing, so long as it is accompanied by resolve.
Supreme Court justices now receive life terms. That could be changed — without a constitutional amendment — to a term, perhaps 18 years. Once the system is established, each president would have appointments on a set schedule. That means whether Democrat or Republican, a president could appoint and the Senate consent, even if no justice died or retired on that president’s watch.
Other reforms could be put in place to require a supermajority — seven justices, say — to strike down federal laws, thus retaining more power in the elected branches of government. That would eliminate narrow margins on partisan basis, perhaps restoring trust in decisions. It’s an idea dating back to at least the 1920s and would not require a constitutional amendment.
Then, of course, there is the option of expanding the court, which Congress has the power to do. The court’s size has changed over the centuries; nine justices is hardly a sacrosanct number.
Biden says he is planning a special courts commission to suggest reforms in 180 days — it’s obvious he is both uncomfortable with expansion yet unwilling to rule it out. There’s a narrow window in which a winning political party can make change; improving the federal judiciary should be near the top of the Democrats’ agenda.
Changes to the courts are worth exploring. Republicans have packed the courts over the years, delaying Democratic nominations and passing through GOP appointments quickly. They used the rules to their benefit and Democrats failed to respond — and in 2016, their voters failed to understand the Supreme Court was on the ballot. It always is.
As a result, Judge Amy Coney Barrett likely will be confirmed next week. Because in American politics, the winners set the rules. If they win in November, Democrats should remember that come January.