Mitch McConnell, Senate GOP write letter to Supreme Court
WASHINGTON — Pledging not to allow Democrats to “pack the Court,” Senate Majority Leader Mitch McConnell, R-Ky., and his GOP colleagues in the chamber sent a letter to the Supreme Court Thursday that pushes back on a friend-of-the-court brief recently filed by five Senate Democrats in a Second Amendment case currently before the high court.
All 53 of the Republicans in the Senate signed the letter.
The brief from the handful of Democratic senators urged the Supreme Court to reject as moot a challenge to New York City’s gun laws, which involves a defunct law that barred the transport of firearms to gun ranges outside the city, writing that the courts “do not undertake political ‘projects.’ Or at least they should not.”
The Democrats included in their brief that voters may demand that the nation’s highest court be “restructured in order to reduce the influence of politics” — a reference to polling data the Democratic senators also cited in the brief — if it continues on its current course.
Some have viewed the Democratic amicus brief as a warning to the court to reach a particular outcome in the case or it could face a push from Democrats on Capitol Hill and some segments of the public for structural changes.
In the letter, McConnell and his colleagues said the Democratic brief “openly threatened this Court with political retribution if it failed to dismiss the petition as moot.”
The Senate Republicans said the court “must not be cowed” and added: “The implication is as plain as day: Dismiss this case, or we’ll pack the Court.”
“For our part, we promise this: While we remain Members of this body, the Democrats’ threat to ‘restructure’ the Court is an empty one. We share Justice Ginsburg’s view that ‘nine seems to be a good number.’ And it will remain that way as long as we are here,” they continued.
These latest salvos between Democrats and Republicans come as the composition and size of the court are increasingly becoming issues in the 2020 presidential race.
More: Liberal groups seek to make Supreme Court an issue in 2020 presidential race, and conservatives exult
Some of the top-tier 2020 Democratic presidential candidates have been open to the idea of restructuring the Supreme Court.
South Bend, Ind., Mayor Pete Buttigieg wants to expand the number of seats on the court from nine to 15, with the five justices that lean left, five that lean right, then five chosen by the first ten.
Former Texas Rep. Beto O’Rourke has seconded the idea, reportedly saying, “I think that’s an idea we should explore.” He also wants term limits for Supreme Court justices.
Entrepreneur Andrew Yang tweeted that the “number of Supreme Court Justices is fluid and has changed over the years,” adding that an expanded court would allow a Democratic president to appoint “several” progressive judges.
Echoing a theme in the Democratic brief, Sen. Kamala Harris, D-Calif., told Politico in March, “We are on the verge of a crisis of confidence in the Supreme Court. We have to take this challenge head on, and everything is on the table to do that.”
Sen. Elizabeth Warren, D-Mass., additionally told Politico at the same time that the idea is a “conversation that’s worth having.”
Frustration by Democrats and progressive with the membership, composition and structure of the Supreme Court has been rising in recent years in part because of the way McConnell has managed the confirmation process in the Senate.
In 2016, McConnell famously wouldn’t allow the Senate Judiciary Committee to consider the nomination of D.C. Circuit Judge Merrick Garland, who had been nominated President Barack Obama to fill an unexpected vacancy created by the death that February of conservative Justice Antonin Scalia, because, as McConnell said, it was important for the Senate to “give the people a voice in the filling of this vacancy” by waiting until the next president took office in January 2017.
“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.”
Garland’s nomination expired on January 3, 2017, with the Senate having taken no action on it.
After Donald Trump won the White House in 2016, he nominated Neil Gorsuch, a conseravtive appeals court judge, in late January 2017, soon after being sworn in as president. Gorsuch was confirmed in the Senate, 54-45, in April of that year.
Trump was able to place another conservative-leaning justice on the Supreme Court when Justice Anthony Kennedy retired and Brett Kavanaugh was narrowly confirmed,50-48.
Kavanaugh’s confirmation solidified a conservative 5-4 majority on the high court led by Chief Justice John Roberts that has likely shifted the court’s ideological balance to the right for decades to come.
Recently, McConnell has said that if a vacancy were to open up on the court in 2020 during the presidential campaign,“We’d fill it,” despite his comments about the Garland nomination during the last presidential race in 2016.
The announcement that Supreme Court Justice Ruth Bader Ginsburg recently finished treatment for pancreatic cancer has once again raised the question — on both sides of political spectrum — whether Trump might have a third nomination during his presidency with the prospect of the court having a 6-3 conservative majority.
More: Trump says he hopes Ruth Bader Ginsburg ‘does really well’ after tumor treatment
In their letter, Senate Republicans addressed the heightened political concerns surrounding the high court, but they suggested the more fundamental issue was one of principle about the Supreme Court’s independence. “Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this court with more justices in order to further their radical legislative agenda,” they write.
“The Democrats’ amicus brief demonstrates that their court-packing plans are more than mere pandering. They are a direct, immediate threat to the independence of the judiciary and the rights of all Americans,” McConnell and his colleagues also wrote.
But Sen. Sheldon Whitehouse, D-R.I., one of the five Democratic senators who submitted the amicus brief and a member of the Senate Judiciary Committee saw things very differently.
“The response to our brief from Republicans and the partisan donor interests driving the Court’s polarization shows exactly why it’s time to speak out,” Whitehouse wrote on Twitter. “They want us to shut up about their capture of the Court; we will not.