Day two of Amy Coney Barrett’s Supreme Court nomination hearings are underway, with Joe Biden’s hedging on questions of whether or not his party would try to pack the court after the election playing out in the background. Heritage Foundation Legal Fellow Zach Smith joined Newell on the program Tuesday morning to discuss.
“Let’s jump right into court-packing,” Newell began. “For the benefit of the listening audience, can you please explain exactly what that is?”
“Court-packing has generally been understood to be when a political party, who doesn’t like the rulings from the Supreme Court, tries to increase the size of the Court so they can appoint more justices who they think will rule in their favor,” Smith said. “The size of the Court is not set in the Constitution, it’s set statutorily, and it’s been set at 9 members for about 150 years or so. The last time anyone was seriously talking about this was in the 1930’s when FDR threatened to do it to get a lot of his New Deal legislation past court review. Even then, his own party recognized this was a bad idea and rejected it. Unfortunately, today, many Democratic lawmakers are advocating for it.”
“I firmly believe this is a question that must be answered,” Newell said. “This is an example of complete authoritarianism. We expect that, and we’ve seen it, in Venezuela and Turkey, when they were getting resistance in their courts.”
“It’s a dangerous precedent - part of the power in our court system rests on its legitimacy, the impartial arbitration of legal disputes,” Smith said. “Any Senators wanting to pursue this idea, it would do great damage to the legitimacy of our system. We’ve heard a lot of talk from Democrats that the Republicans have packed the courts, but that’s a really Orwellian re-definition of the term. In fact, all President Trump and McConnell have done is to fulfill their Constitutional duties.”
“Isn’t it also hypocritical, when we think about when President Clinton nominated Ruth Bader Ginsburg?” Newell continued. “Obviously that was because her ideology aligned with this own, so isn’t that what we see from every President?”
“Absolutely, and I think what we’re seeing is a very different idea of what the role of a Judge should be, and what an acceptable judicial philosophy is,” Smith answered. “Many Democrats want a judge who is going to function like a legislator, imposing their policy preferences on us and reaching rulings they believe help society regardless of what the law says. That’s very different from what Amy Coney Barrett has said her philosophy is. I think that’s a good thing, and its an appropriate role for a judge to play.”
Hear the entire interview in the audio player below.
