Supreme Court Associate Justice Ruth Bader Ginsburg (Supreme Court of the United States)
Upon the death of Associate Justice Ruth Bader Ginsburg, Democrats threatened to "pack" the high court if President Trump nominated and the Senate confirmed a successor before the election.
That would mean adding new seats to the bench and filling them with progressives.
A longtime liberal legal scholar, Jonathan Turley, warns that "would destroy" the high court. And Ginsburg herself agreed.
It's why the Democratic ticket of Joe Biden and Kamala Harris should make clear their intentions, said Turley.
"The refusal of Vice President Joe Biden to answer repeated questions about his position on the packing of the Supreme Court is deeply troubling," Turley wrote. "Voters should know if Biden would consider such an irresponsible act, particularly when he previously denounced it."
He noted Biden, who previously opposed the concept, "has chosen to remain silent."
Turley said President Trump and Senate are following the Constitution with the nomination of Amy Coney Barrett, just as President Obama did four years ago when he nominated Merrick Garland.
There was nothing unconstitutional about the Republican-led Senate choosing not to vote on Garland, nor is there anything unconstitutional about voting on Barrett, he explained.
However, the packing scheme "would change the court for the sole purpose of securing an ideological majority."
"It would create a new and fundamentally flawed court — a sad reflection of our age of rage," Turley said.
Ginsburg once said: "If anything would make the court look partisan, it would be that—one side saying, 'When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'"
In fact, Turley pointed out, Ginsburg refused during her confirmation to state how she would rule on cases.
"I have criticized the Ginsburg rule, which is used by nominees to refuse giving more than elusive statements on their judicial philosophy," said Turley. "It has reduced critical confirmation hearings to formulaic exercises with silent nominees and bloviating members of the Senate. Nominees must be able to talk about their judicial philosophy and the basis for individual rights, without demands to hear their positions on pending cases."
Turley said that what politicians are advocating today, however, is a direct litmus test.
"Not only will they vote against a nominee who opposes a particular case, but they will do so for a nominee who does not expressly support a case," he said. "Even if a nominee like Barrett has a foundation in the law, it is how she will vote on certain controversial cases instead of her views that will matter."
Turley said litmus tests and the idea to pack the bench would not honor Ginsburg.
"They would instead destroy the Supreme Court she loved," he said. "These moves would obliterate an institution that has over history preserved the stability and continuity of our country. The Supreme Court has performed this vital role based on its legitimacy and authority with Americans that will surely evaporate if Democrats conduct litmus tests or pack the bench."
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