By MIKE MANNO
I’m not sure that the public quite understood what he meant when then-candidate Barack Obama pledged to “fundamentally change” the United States. At the time of Mr. Obama’s inauguration in January of 2009, who would have guessed that large segments of the population would now be accepting of same-sex marriage, unregulated immigration, post-birth abortions, and the concept that gender is fluid and can be changed at will? Or, for that matter, that our president was a Russian mole?
I don’t know if all of these things would have exploded after the 2016 election had Hillary Clinton been elected. I wonder sometimes if she would have steered a slightly more moderate course; after all, she wouldn’t have needed the extreme left-wing of her party to excite the electorate. Of course, when I refer to the extreme left-wing, I mean anything left of Mrs. Clinton.
I do know that had she been elected, we would not face the backlash against our entire system, as we do now, since there would have been no Uber Liberal resistance. But her loss gave an opening for some system-destroying ideas to take hold among liberal, but not necessarily far-left, Democrats.
Two weeks ago I criticized the movement to abolish the Electoral College, which is now gaining mainstream support and is largely a reaction to Mrs. Clinton’s loss. More about that a bit later, but first let’s turn our attention to the various court-packing plans that the “Resistance” is suggesting.
The Constitution, article III, establishes “one Supreme Court,” and “such inferior courts as the Congress may from time to time ordain and establish.” Thus, there is no constitutional requirement of any set number of justices. However, since the Judiciary Act of 1869, the number has been fixed by law at nine.
Now there are some that claim, rightly, that the number of members of the court has changed over time. That is true, but the numerical changes had to do with the composition of the Circuit Courts of Appeal — there were none; well, none as we know now.
Appeals from trial courts were heard by district court judges and Supreme Court judges who “road the circuit,” hearing appeals. Thus, as the judicial system grew and as new “circuits” were established, new district judgeships were created and additional Supreme Court judges were authorized to “ride the circuit” with the new district judges.
The Supreme Court started at six members and at one time was as high as ten. The numbers, however, resulted in the creation of new circuits, but in 1869 there was the creation of a permanent system of intermediate courts with separate judges and the High Court was then set at nine.
Those who are unhappy that Donald Trump is the one nominating justices have now come up with different scenarios to deprive him of that right or to water down the effects of his appointees by expanding the court so the next president — presumably a far-left Democrat — will have some new seats to fill to offset the appointments Mr. Trump makes. There is even one suggestion that takes the appointment process away from the president and gives it to Congress who would name five Democratic justices, five Republican justices, and they would then pick five independent justices.
Of course, any new system that bypassed a presidential appointment would require a constitutional amendment which would not likely pass. However, a simple enlargement of the court could be done by a simple legislative act. But those suggesting packing the court should keep in mind that it was tried once before with devastating political results for the president who pushed it.
Back in 1937, Franklin Roosevelt, coming off a landslide reelection, and upset with a range of court rulings against his New Deal programs, suggested his own court-packing plan. The plan centered around a provision that would have given the president the power to appoint an additional justice for every justice over 70 and one-half years old, up to a maximum of six new justices.
Mr. Roosevelt’s reelection the previous year with 60-plus percentage of the popular vote put him in a politically strong position; Democrats controlled the Senate 76-16 and the House 334-88. Thus the court-packing plan was the first legislative act he sought in the New Year.
Changing the court for political reasons struck the public as a bad idea, a very bad idea. Two-thirds of the newspapers that had endorsed FDR’s reelection attacked the plan. Partly due to FDR’s court plan, the midterm elections in 1938 found the Democrats losing six Senate and 71 House seats. The president was then forced to drop his next major effort: national health care. It took until the 1960s for the liberal agenda find its way back on track. Henry Wallace, FDR’s second vice president, remarked, “The whole New Deal went up in smoke as a result of the Supreme Court fight.”
Of course there was a little more to it than a simple 600-word explanation. The parties, especially the Democratic Party, were different then, with the Democrats having a solid base in the conservative South. Still, there is a lesson to be learned: The public will not tolerate playing around with the court for political advantage. Those on the left who are promoting this folly should pay attention to history.
Back to the Electoral College: One of its strengths is that it produces a clear-cut winner. Since the 1824 election, no contest has been thrown into the House due to the Electoral College failing to pick a president. Yet, very few of the presidential winners actually had over 50 percent of the popular vote. Just a quick rundown of Electoral College winners who did not receive a majority of the popular vote include Polk, Taylor, Buchanan, Hayes, Garfield, Cleveland, Harrison, Wilson, Truman, Kennedy, Nixon, Clinton, and G.W. Bush. In fact, one president received under 40 percent of the vote: Abraham Lincoln in 1860; he had only 39.9.
In each of these elections the Electoral College produced a clear-cut winner, a candidate who received a majority of the electoral vote. So what happens if the Electoral College is abolished? What will happen when no candidate, especially in races with viable third-party choices, gets a majority of the popular vote? How, then, do we choose a winner?
Will there be a national run-off between the two or three top candidates? How many times might we be forced to vote? Or will we use the current mechanism of allowing the House to elect? But how would that be done? Would each congressman get a vote, or will we use the current system of giving each state a vote?
If abolition of the Electoral College is the new progressive idea, someone should clarify how we get a clear winner; majority vote, plurality vote, run-off, or perhaps we’ll allow the newly packed Supreme Court chose.
All these ideas are dangerous and have the potential of major political mischief.
(You can contact Mike at: DeaconMike@q.com.)
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