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.

(15) comments

Khal Spencer

Somehow I doubt this newspaper would be complaining if a string of liberal Presidents and Senates managed to get another Warren Court confirmed. What goes around comes around.

Also, it was Democratic Senate Majority Leader Harry Reid who did away with a requirement for supermajorities to confirm Federal judges. Again, what goes around comes around.

Emily Koyama

Add to that Ginsberg's selfishness...hanging onto her seat until the 2016 election because she was convinced that Hillary would win.

Khal Spencer

Actually, if Joe wins and the Dems take the Senate, having a conservative SCOTUS might be a good idea in terms of checks and balances.

Emily Koyama

If that happens, and they get drunk with their newfound power, the 2022 midterms will be a bloodbath.

Khal Spencer

I would prefer "rout" to "bloodbath". There are enough people already throwing around violent terms way too casually.

David Cartwright

The idea that the New Mexican has joined the court packing crowd is alarming. This isn' "reform," it's the New Mexican joining the vigilantes to threaten the court if it doesn't rule the way they want. My response is a fervent hope that this newspaper quickly goes out of business and is replaced by a more responsible advocate of press freedom.

Peter Romero

The editorial board sounds like a spoiled little kid that didn't get their way. The democrats would have done the same thing if they could. Please stop your whining !

Shawn Chafins

Exactly, Nice post!!

Shawn Chafins

👍

Barry Rabkin

"The people did decide" when they voted for Trump. Every president serves a term of 4 years... not a term of 3 years and 9 months. Every Senator serves a term of 6 years ... not a term of 5 years and 9 months. The President and the Senators are acting in a manner that complies with the US Constitution. Why is "court reform" needed? Because there will be more judges who understand their job is to interpret the law and not make law? Because more of the SCOTUS jurists understand it is their job to interpret the Constitution as our Founding Fathers intended? There is absolutely no reason to "reform" the Supreme Court.

Augustin de la Sierra

Barry Rabkin, the current Senate and the current President have the legal right to confirm Judge Barrett. If Biden wins; the Senate flips to the Dems; and the House remains Dem-controlled, do you conceded they have the legal right to pass legislation limiting the judiciary; expanding the Court; et cetera as described in this article? If not, you're just a hypocrite.

Nice article, Santa Fe New Mexican. I have already been counting the ways to lawfully rein in the conservative-controlled High Court's actions. One of the first actions should be for Breyer to resign while Dems still control the White House and Senate. It's been a mistake of Democratic-appointed Justices for decades. Justice Ginsburg's work on behalf of gender equity is the only reason I forgive her for not resigning under Obama in the years when the Senate was Dem-controlled.

Emily Koyama

And if the High Court was liberal- controlled (as has been the case in the past) you'd have no interest in "reining" it in, wouldya?

Shawn Chafins

Emily,

Great post. They don't like the truth. They want everything to be doom and gloom. Very shameful on their part.

Mangas Coloradas

There is a large body of legal opinion that says that a "court packing" scheme is unconstitutional. It violates a variety of constitutional principals ... most notably the separation of powers. If whatever current Congress could simply pack the federal courts to their judicial taste, we would of course have lost one of our 3 "checks and balances". Additionally, of course such a scheme would be appealed to the Supreme Court. I wonder how they would they would rule in such a case?

Shawn Chafins

👍

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