Ethan J. Leib and Thomas H. Lee were quoted in U.S. News “Debate Club” piece where they argue that President Trump should tell Congress to expand the U.S. Supreme Court to 10 seats and renominate Merrick Garland.
As the endgame for the nomination of Neil Gorsuch to the U.S. Supreme Court looms this week, President Donald Trump can make a deal for the centuries: He can ask Congress to expand the Supreme Court to 10 seats and nominate Merrick Garland for the tenth seat. Trump could thereby save his replacement for Justice Antonin Scalia, save the norms of the Senate that require 60 votes for Supreme Court appointments and show himself to be a nonpartisan problem-solver. There is nothing talismanic about having an odd number of justices on the court. Indeed, six is the original number, and there were six Justices on the court when Chief Justice John Marshall decided the court’s most famous case, Marbury v. Madison, in 1803.
It is no great secret why the Democrats are likely to filibuster Gorsuch’s nomination. It is tit-for-tat retaliation for the Republicans’ refusal to proceed with Obama’s nomination of Garland in March 2016, eight months before the presidential election and 10 months before a new president would have been inaugurated. The Democrats feel quite reasonably that Gorsuch’s seat is a stolen seat.
The Solomonic solution – a deal that Trump can broker – is to give both deserving judges seats on the court. Gorsuch is the best judge Democrats could reasonably hope for from a Republican president, and Garland was the best judge Republicans could reasonably hope for from a Democratic president. Garland was even better for Republicans than Gorsuch is for Democrats: Gorsuch has solid support from movement conservatives; movement liberals suspected that Garland would be too meek to be a liberal lion. Garland is to the right of almost anyone Hillary Clinton would have considered appointing to the court, and Obama likely chose him to win over some centrist Republicans.
Unfortunately, however justifiable it might seem for Democrats to use Senate procedures to counter the Republicans’ use of the same last year, Republicans seem likely to use the so-called nuclear option, getting rid of the filibuster for Supreme Court nominations in the Senate. They can then proceed to seat Gorsuch and get rid of the cloture requirement – a longstanding practice to encourage appointments tolerable to both parties. It has always been true that a court nominee can be seated by a mere majority of the Senate – Justice Clarence Thomas, for instance, squeaked by with a 52-48 vote. But requiring 60 votes for cloture moderates presidential nominations to the Supreme Court. It gives the president an incentive to nominate justices who reinforce the sense that the court is a rule-of-law institution, not just politics by another means.
What is at stake in avoiding the nuclear option is nothing less than the institutional soul of the Senate and American democracy in general. Our politics are rough and tumble, but we debate and vote our differences. The Democrats could have filibustered Thomas in 1991, but they didn’t. By contrast, the Republicans refused to debate Garland’s merits at all. The devastating, collateral consequence of getting rid of the filibuster through the nuclear option will be a further erosion of the idea that the Supreme Court is a rule-of-law institution, not a political body. Presidents will no longer have to choose consensual candidates and the Senate will stop being the deliberative body it was designed to be.
Trump can avert all of these harms – to the Senate, the court and the country – by proposing a classy deal to Congress with an impeccable historical pedigree: Expand the Supreme Court to 10 seats, re-nominate Garland as a package deal with Gorsuch and put two eminently qualified judges on the court in one blow.
The Constitution doesn’t require any number of Supreme Court justices. When the first Congress created the Supreme Court in 1789, they authorized six justices, and that is how many we had until 1807. The English common law tradition embraced an even number of judges, on the view that learned jurists would rule by consensus, talking things over and coming to a common view. The country had 10 justices from 1863 to 1866, and eight justices from 1867 to 1870. The reason Congress passed statutes expanding the court to an odd number – first, to seven justices in 1807, and then to nine in 1836 – wasn’t to obviate ties, it was to match the number of circuits in the country. True, President Franklin Roosevelt’s court-packing plan to enlarge the court was widely condemned, but that was because it was a gambit to bend the court to his administration’s will, not to make it a less partisan institution.
From a practical perspective, there is nothing wrong with changing the composition of the Supreme Court to require a 6-4 majority to strike down a law passed by a democratically elected Congress or state legislature as unconstitutional. The public will surely view a 6-4 ruling as more legitimate than a 5-4 decision. And the justices will have to work harder to persuade each other and arrive at a 60 percent consensus – just like the Senate has to for cloture.
Trump has a rare opportunity to reset how the Senate does business and how the Supreme Court decides cases. He can make a deal for the ages, one that will likely impress even his fiercest critics.