By John Lewis and Stuart Gaffney–
Hours into the October Democratic Presidential Debate, four of the twelve candidates (Biden, Buttigieg, Castro, and Warren) were asked whether they would favor adding justices to the Supreme Court to protect women’s rights in the event the Supreme Court overruled Roe v. Wade. The composition of the Court is also of vital importance to the lives of LGBTIQ people and many other Americans as well. Here’s how the candidates responded to this crucial question that rarely receives the attention it deserves.
Openly gay South Bend Mayor Pete Buttigieg took a leading role at the debate in advocating structural reform to the Court. Buttigieg is “committed to establishing a commission on day one” of his presidency to “propose reforms to depoliticize” the Court. “We can’t go on like this, where every single time there is a vacancy, we have this apocalyptic ideological firefight over what to do next.”
Buttigieg offered a proposal “to have a 15-member court where five of the members can only be appointed by unanimous agreement of the other 10.” But he emphasized that he was “not wedded to a particular solution” and would also consider possibilities such as term limits or rotating justices to the Supreme Court from the federal appellate bench.
Buttigieg asserted that when he first proposed Court reform, “some folks said that was too bold to even contemplate.” But in urging nonpartisanship, Buttigieg did not call out Republican presidents for being far more ideological and partisan in their Supreme Court nominations (such as Robert Bork, Clarence Thomas, and Neil Gorsuch) than Democratic presidents. And he did not explicitly denounce the extraordinary measures Republican Senate Majority Leader Mitch McConnell undertook to block President Obama’s 2016 nomination of Merrick Garland to the Court and McConnell’s changing the Senate rules to install Trump’s pick Gorsuch.
Massachusetts Senator Elizabeth Warren was noncommittal, responding: “I think there are a number of options. I think, as Mayor Buttigieg said, there are many different ways. People are talking about different options, and I think we may have to talk about them.”
Warren, not one to shy away from proposing major policy changes, did not explain whether she would make Court reform a priority. After her initial statement, she quickly pivoted to talk about the substantive issue of abortion, advocating that Congress should enact legislation codifying Roe v. Wade, a position that all four candidates took.
Warren’s response did not address the myriad other issues in which the Court plays a decisive role and the problem that a conservative Supreme Court might rule that Congress lacks the power to guarantee access to abortion nationwide in the face of state laws severely restricting or forbidding it.
Former Housing and Urban Development Secretary Julian Castro opposed adding additional justices to the Court, making the provocatively worded declaration: “I wouldn’t pack the Court.” Castro acknowledged that Buttigieg’s 15-member Court idea was “interesting,” but opined that “if” he were choosing from one of Buttigieg’s proposals, he would favor term limits for Justices or having justices rotate from the appellate courts. Castro, like all of the candidates, made clear that he would nominate justices “who respect the precedent of Roe v. Wade.”
Former Vice President Joe Biden also employed the term “court packing” in firmly opposing adding additional justices to the Court. He reasoned that the Democrats’ adding justices when they had the power to do so would result in Republicans doing the same and further undermine the “credibility” of the Court.
In an attempt to appear assertive, Biden promised that if next year one of the justices left the Court as happened during the 2016 election year, “I would make sure that we would do exactly what McConnell did last time out. We would not allow any hearing to be held for a new justice.”
But how could Biden possibly ensure that McConnell and the Republican majority in the Senate would not get such a justice confirmed as they did with Gorsuch and Kavanaugh? Biden presently holds no political office, and if he could stop McConnell, why didn’t he do so back in 2016 when he was Vice President and thus the titular “president of the Senate”?
Taking a long-term view of the possible ramifications of changing the structure of the Supreme Court is a legitimate and perhaps persuasive argument. The Court has had nine Justices for the last 150 years, although the number of Justices before that varied from 6 to 10. But the argument fails to respond to the immediate threat to the well being of millions of Americans, including LGBTIQ people, that the current Supreme Court poses and the nakedly partisan strategy that the Republicans have pursued over the past 50 years to shape the ideological stance of the Court.
None of the other eight candidates on stage interrupted to assert their position on the question. In addition, Harris, Klobuchar, Booker. and Gabbard all chose not to advocate reforming the Court when asked what they would do if recent state laws severely restricting abortion were upheld in the courts.
Stay tuned. We will continue to report on this critical issue as the campaign unfolds.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
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