As Senate confirms Barrett to Supreme Court, Democrats mull reshaping courts

WASHINGTON – The Senate confirmed Amy Coney Barrett to become the newest Supreme Court justice Monday evening, capping a successful run of judicial appointments for Republicans that has transformed the federal judiciary in President Donald Trump’s first term.

Barrett, 48, joins Justices Neil Gorsuch and Brett Kavanaugh in a trio of relatively young jurists appointed by Trump who could help sustain a conservative majority on the high court for years to come. They join 213 other federal judges confirmed by the GOP-led Senate.

Now, with Democratic candidate Joe Biden leading in national polls and his party eyeing a potential Senate majority come January, Democrats are mulling a range of options to reform the federal court system. Perhaps the most controversial of these ideas, known as “court-packing,” would add seats to the Supreme Court.

Biden has said he’s “not a fan” of the idea but has repeatedly declined to rule it out. In an interview aired Sunday on CBS News’ “60 Minutes,” the former vice president said he would first assemble a bipartisan commission of legal scholars to consider reforms.

“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack,” Biden said. “It’s not about court packing. There’s a number of other things that our constitutional scholars have debated and I’d look to see what recommendations that commission might make.”

Senate Democrats, including Washington’s Patty Murray, are steaming over what they see as a rushed and hypocritical effort by their GOP counterparts.

“We should not be voting on this lifetime appointment while the American people themselves are in the middle of voting – of telling us how they want this country’s future to look,” Murray said on the Senate floor Monday.

When the death of Antonin Scalia left a vacancy in February 2016, GOP senators refused to consider Barack Obama’s nominee, Merrick Garland, arguing the choice should be left to the next president. Sen. Lindsey Graham, now chairman of the Judiciary Committee, invited Democrats to hold him to that standard.

“I want you to use my words against me,” Graham said in 2016. “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.’ ”

Republicans, including Sen. Mike Crapo of Idaho, have largely ignored that precedent and pointed instead to a history of election-year nominees confirmed to the high court.

“Much like when the Senate exercised its constitutional right fully consistent with precedent in 2016 not to fill the vacancy when there was divided government,” Crapo said, “the Senate is today exercising its duty to move forward with processing this nomination, just like the vast majority of Senates in the past.”

Barrett clerked for Scalia and adheres to his ideology. “His judicial philosophy is mine,” she said of her mentor Sept. 26.

Republicans have praised her commitment to “originalism,” the belief that the Constitution should be interpreted the way the framers intended. In practice, this philosophy often favors limited government and other conservative principles.

Democrats, like Sen. Maria Cantwell of Washington, have warned Barrett could vote to overturn the Affordable Care Act – the health care law known as Obamacare – and the landmark Roe v. Wade decision protecting abortion rights. In 2006, Barrett signed a statement expressing opposition to “abortion on demand.”

Barrett has criticized past Supreme Court decisions that preserved the Obama administration’s signature legislative accomplishment. The Supreme Court is set to consider a challenge to Obamacare just days after the election, although the justices will consider a different legal question than in the earlier cases.

“I’m very concerned that our colleagues on the other side of the aisle have been pushing an agenda on health care – and particularly women’s health care – that is different than where the mainstream views of Americans are,” Cantwell told The Spokesman-Review on Monday. “In general, they’re trying to promote a judicial philosophy that is going to end up denying access to care to people.”

Most Senate Democrats have declined to say whether they favor expanding the court. When asked Monday, Cantwell said it was something she was “not ready to talk about.”

“I want us to focus on getting a COVID (relief) package, seeing what the election results are, and then trying to fight to save the health care that people have,” Cantwell said. “Then we can digest all of that input and find out what it is that the American people are interested in having happen.”

Crapo said in an Oct. 22 interview he strongly opposes court-packing.

“The whole principle behind it is the notion that judges – or, in this case, justices – should be lawmakers and policymakers rather than interpreters of the law,” he said.

At the state level, however, Republicans have not had the same qualms about expanding courts. In both Georgia and Arizona in 2016, Republican governors signed bills passed by GOP-controlled legislatures to add seats to the states’ supreme courts, allowing them to tip the balance of the courts with their own nominees.

Idaho Sen. Jim Risch said the nine-justice court has withstood the test of time, referring to a failed effort by President Franklin D. Roosevelt to pack the high court in 1937.

“Even the most liberal hiccup we had in this country – and that was during FDR – he couldn’t get it changed,” he said. “Are we moving more left than that?”

The first U.S. Supreme Court, established in 1789, had six justices.

In 1801, President John Adams and his congressional allies passed a bill to shrink the court to five justices to limit incoming President Thomas Jefferson’s influence. Jefferson promptly reversed that measure, and Congress eventually expanded the court to 10 for a brief period during the Civil War.

The current, nine-justice panel has existed since 1869.

Mary Pat Treuthart, a law professor at Gonzaga University, said Barrett’s confirmation and a more conservative federal judiciary could force Democrats to change tack after turning to the courts to counter the Trump administration’s policy changes.

“It may put greater focus on people trying to go the legislative route rather than the litigation route, people who are looking at some sort of progressive reform efforts,” Treuthart said. “It’s not just the Supreme Court. It is the fact that there have been so many judgeships filled at the lower federal court level.”

When Trump took office, there were 114 judicial vacancies in federal courts. There are now 66, and zero at the federal appeals court level, where final decisions in most cases are made.

Before a Democratic-majority Senate could add seats to the Supreme Court, it would first need to do away altogether with the filibuster, a parliamentary procedure that requires a 60-vote majority to pass laws. In 2013, frustrated by Republicans’ obstructionism, then-Senate Majority Leader Harry Reid, D-Nevada, did away with the filibuster for nominees to lower courts and the executive branch. In 2017, Senate Majority Leader Mitch McConnell, R-Ky., eliminated the filibuster for Supreme Court nominees.

“I think we need to have a conversation, if it’s possible, about what is in the best interest of the country, of the democracy, of these systems – without putting political interests at the fore,” Treuthart said.

Crapo and Risch voted to confirm Barrett, while Murray and Cantwell voted no. Sen. Susan Collins of Maine was the sole Republican to oppose the confirmation, citing what she called a rushed process.

Barrett can join the Supreme Court as soon as Tuesday and will hear oral arguments Nov. 10 in California v. Texas, the case that could decide the fate of the Affordable Care Act.