Want the best of VICE News straight to your inbox? Sign up here.
WASHINGTON — Even if both President Donald Trump and Senate Majority Leader Mitch McConnell are booted out of office next November, you’ll still be feeling their presence in your daily life for decades and decades to come.
The two Republicans teamed up and with the assistance of outside groups overhauled the makeup the nation’s judiciary for generations. Through upending some Senate rules, the duo has overseen the appointment of 59 judges so far in 2019 alone. That brings their grand total — since Trump moved into the Oval Office — of district court judges to 99, along with the record-breaking 43 judges they seated on appellate courts.
Then there are the two Supreme Court justices — Associate Justices Brett Kavanaugh and Neal Gorsuch — they seated over bitter, angry and some tear-soaked protests.
That’s why many Democratic presidential candidates are calling for radical changes if elected, but even some senior Senate Democrats fear the campaign rhetoric is outpacing the reality of what a potential Democratic administration could deliver, let alone what would be good for the perception of the nation’s judiciary among voters.
Packing the court
In response to the McConnell-Trump full court press, presidential contenders and Sens. Elizabeth Warren of Massachusetts, Kamala Harris of California and Kirsten Gillibrand of New York are all open to expanding the number of justices on the Supreme Court.
South Bend Mayor Pete Buttigieg wants to expand the High Court from nine to 15 justices, which former Texas Rep. Beto O’Rourke has also signaled he’s open to.
Campaign trail dreams of exacting revenge for McConnell “stealing” former President Barack Obama’s last SCOTUS nominee, Merrick Garland, are one thing. But the campaign trail rhetoric has trickled into the Capitol.
“I’m personally open to making changes to the Supreme Court so that we can have a more balanced court,” Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee, told VICE News.
Hirono argues she wants to ultimately de-politicize the Supreme Court in order to eventually get away from so many narrowly decided, 5-4 decisions that she says are eroding American’s trust in what should be a non-political branch of government.
“It’s very clear that it's not just McConnell but of course the president is very much on the [same] page,” Hirono said. “So these are very ideologically driven, conservative people who I cannot be convinced that they can be fair and impartial as judges. But it’s because they’ve got an ideological agenda that they’re being nominated in the first place, to a very large extent.”
On the June presidential debate stage, Sen. Bernie Sanders floated the novel idea of a rolling Supreme Court, of sorts.
“I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court,” Sanders said.
Still, Hirono isn’t sold on one plan or another just yet, and neither are other progressive senators supportive of the notion of Democratic payback for McConnell and Trump’s makeover of the judiciary.
“The Supreme Court has been deeply corrupted through the theft of the Supreme Court seat.”
“People are putting forward a lot of ideas, because the Supreme Court has been deeply corrupted through the theft of the Supreme Court seat,” Sen. Jeff Merkley (D-Oregon) told VICE News. “We have a Supreme Court that instead of defending the Constitution is attacking and shredding it for the powerful. That’s a huge problem and people are brainstorming on every aspect of that.”
But Democratic proposals to remake the Supreme Court in their own party’s image are laughed off by the Republicans currently controlling the reigns of power in the Senate.
“It’s the sour grapes argument,” Sen. Lindsey Graham (R-S.C.), the chair of the Judiciary Committee, told VICE News. “It’s a pipedream.”
When the idea is mentioned to other Republicans, they automatically accuse their Democratic counterparts of “court packing” — and worse.
“I think it’s a terrible idea. I mean, the only other time a president has tried it was when FDR attempted it. It just makes the Supreme Court appear to be even more political,” Sen. John Kennedy (R-Lou.) told VICE News. “By packing the Supreme Court, that’s just a message from our Democratic friends that the Supreme Court is political.”
“Federal judges are not supposed to be politicians in robes. They’re not,” Kennedy said. “I think they try to be fair. And that would just send a signal that they’re not fair. I think it would undermine the integrity of the Court almost irreparably.”
It’s not just Republicans who are cool to the idea.
“It’s not smart to try to manipulate the system, because it comes back to bite you.”
“It’s not smart to try to manipulate the system, because it comes back to bite you,” Sen. Ben Cardin (D-Md.) told VICE News.
And Cardin knows from experience. When Obama was president, he supported former Senate Majority Leader Harry Reid’s plan to deploy the so-called nuclear option on all judges except Supreme Court Judges. That enabled Obama to get some of his judges through with a simple majority of 51 and not the filibuster-proof 60 votes that was previously required.
Once McConnell took over he nuked the Senate again, dropping the threshold for Supreme Court nominees to a mere 51 in order to get Neil Gorsuch seated for life, which is also how he and Trump got Brett Kavanaugh his lifetime appointment even over the angry cries of opponents. That’s partly why Cardin and other Democrats are hesitant to escalate this judicial-nuclear war further.
“There’s no question that Republicans will always do — be more outrageous than we would ever think about being,” Cardin said. “I think the better course is to try to develop comity again on judicial nominations.”
Other Senate Democrats agree and argue campaign trail rhetoric seems to be outpacing that which matters most: Wresting control of the White House and the Senate from Trump, McConnell and their conservative allies.
“That strikes me as truly premature,” laughed Sen. Chris Coons (D-Del.) after VICE News asked about modern day court packing plans from his party. “Let’s focus on trying to win the 2020 election first before having any conversations on how to finish the judicial confirmation process, how to restore some sense of balance, order and appropriateness to the filling of vacancies.”
Still, progressives are mad as hell and want to fight fire with fire, even if it’s with the more tame, Democratic version of fire.
“One hopes that we will not have all these continual five to four decisions on some of the most critical issues facing people in our country,” Sen. Hirono said. “So I would want a Supreme Court that is much more unanimous in their decisions. And apparently we’re not going to be getting that.”
Cover: President Donald Trump looks on after presenting the Presidential Medal of Freedom in the Oval Office of the White House in Washington, DC on August 22, 2019. (Photo: MANDEL NGAN/AFP/Getty Images)