With confirmation of Trump appointed Justices Neal Gorsuch and Brett Kavanaugh the future of the Supreme Court looks bleak indeed to anyone with a progressive mindset.  With either Trump or Pence in the White House and likelihood that the Republicans will maintain control of the Senate after the mid-term elections, the only way it could get worse would for either 84 year old Ruth Bader Ginsburg or 80 year old Samuel Alito to not be able to continue on the bench for at least the next two years.  That would be an unmitigated disaster.  Here’s wishing these two senior justices good health!

However, there is a way to fix the court, and I am not referring to impeachment.  That is not a viable alternative.  Yes, the Democrats are likely to take control of the House in the upcoming mid-term elections and with that control comes the power to issue subpoenas and to perform a complete investigation of the Brett Kavanaugh affair. And yes, Kavanaugh repeatedly lied to Congress in matters big and small, and those lies are certainly impeachable offenses.  However, there is zero chance that there will be enough Republicans votes in the Senate  to provide the two-thirds majority necessary to convict him and remove him from the bench.

The way to fix the Supreme Court lays in what I see is the future of the Republican Party.  As it ceases to be an effective political organization going forward, Democrats will have the opportunity to establish effective control of the Presidency and both houses of Congress.  With that control of those two of the three branches of our government comes the power to fix the problem we currently have with our third branch of government, the Supreme Court.

Article 3 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate shall appoint Judges of the Supreme Court” but it doesn’t specify the number of Justices the court must have.  That is left up to Congress. The current applicable law is the Judiciary Act of 1869 in which Congress established that the United States Supreme Court will consist of the Chief Justice and eight associate justices. However, there is no constitutional reason why additional Justices cannot be added to the court by Congressional legislation signed by the President.

If there is an attempt to add additional Justices to the Supreme Court in the future, it would not be the first time that this possibility is considered.  When several elements of the New Deal were struck down by the Supreme Court by 5 to 4 decisions along party lines, President Franklin Delano Roosevelt requested legislation from Congress which would allow him to appoint up to six additional Supreme Court Justices.  Ironically the legislation was stalled in the Senate by Democrats who refused to advance the legislation because they believed that it would politicize our highest court.

That shouldn’t be a problem next time around. Republicans in the Senate have already irrevocably politicized the Supreme Court by holding up the nomination of Merrick Garland for over a year, employing the “nuclear option” (removing the Senate requirement of 60 votes to confirm a Supreme Court Justice) in order to confirm Trump’s two Supreme Court nominees include ultra conservative Neil Gorsuch (who took Garland’s seat on the bench), and then ran roughshod over every objection to confirm an accused sex offender and serial liar, Brett Kavanaugh, to the court for political reasons.

Again, all that is needed to apply this remedy is for the Democrats to seize control of the Presidency and both houses of Congress and to have the political will to see it through.  As of now it seems likely that the Republicans will maintain control of the Senate after the mid-term elections and either Donald Trump or Mike Pence will continue to govern from the Oval Office for the next two years.  However, the 2020 elections will provide Democrats the opportunity to clean house.  If everything goes as planned Democrats will then be able to employ the “Hydrogen Bomb” option (please remember I originated the term) if they have guts enough to use it.

Cajun    10/16/2018