Should the Supreme Court be expanded?

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

Judge Ketanji Brown Jackson’s confirmation to the U.S. Supreme Court is now assured with the support of Maine Republican Sen. Susan Collins, who is always there with her vote when it’s not needed. Since Sen. Joe Manchin announced he would vote for Jackson, Collins’ support is not necessary, but it does give Jackson at least 51 votes.

Collins’ endorsement was every self-serving thing you would expect from her. “In recent years, senators on both sides of the aisle have gotten away from what I perceive to be the appropriate process for evaluating judicial nominees,” she said. “In my view, the role under the Constitution assigned to the Senate is to look at the credentials, experience and qualifications of the nominee. It is not to assess whether a nominee reflects the individual ideology of a senator or would vote exactly as an individual senator would want.” Uh-huh.

This from the woman who voted for Brett Kavanaugh after serious and multiple allegations of his history of sexual assault, which went unexamined by the FBI and then-Republican Senate majority. That makes two Republican men on the Supreme Court credibly accused of sexual harassment and/or assault.

One of those two, Clarence Thomas, might also be complicit in a conspiracy to overthrow the government. We know that his “best friend” and spouse Ginni Thomas agitated for a coup with the Trump White House after the election, before the Jan. 6 insurrection, and for weeks after the attack on the Capitol. We also know that Clarence Thomas was the sole Supreme Court justice to try to prevent records of that contact between his wife and the White House from being released to the House Jan. 6 committee.

Collins has apparently not been asked where she stands on these clear conflicts of interest for Thomas. Her Republican colleagues, however, have been clear. The absolute minimum that could be asked of him—that he recuse from any Jan. 6 cases—is a bridge too far. Minority Leader Mitch McConnell even says the call for Thomas to recuse is “inappropriate” and “has no basis in Justice Thomas’ decades of impeccable service on the court. The Justice and the entire court should feel free to completely ignore all this.”

That’s his answer to treasonous Republicans: Ignore them. Allow the corruption to keep festering under the surface while trolling Democrats. It’s a game in which Collins is entirely happy to participate.

So while McConnell and his Republicans have packed the court with unqualified Trump picks and are looking the other way at Thomas’ clear ethics abuses, they’ve decided to create a whole new and extremely dangerous line of attack on potential new nominees from President Joe Biden.

When it was clear there was no way they could impugn Jackson—easily the most qualified nominee to come before the Senate in decades—Republicans went off-script. They demanded documents that should not under any circumstances ever be put in politicians’ hands, and now they’re threatening to keep doing it.

They tried to derail Jackson’s hearing on the last day by insisting the White House provide presentencing documents from Jackson’s time on the federal bench. These are documents the White House doesn’t and shouldn’t possess. These are sealed documents prepared by court probation officers that only the parties in the cases involved are allowed to see. What Republicans were asking for from Jackson was doubly sensitive because they involve child sexual abuse materials and extensive personal information about the victims, their families, and the defendants. Stuff that should never, ever be in the hands of someone as dangerously dim as the likes of Marsha Blackburn.

It so alarmed the legal community that former district court judges immediately wrote a letter to Judiciary Chair Sen. Dick Durbin (D-IL) and ranking member Sen. Chuck Grassley (R-IA) condemning the demands and warning that this was dangerous territory. The only entities beyond the people involved in the cases that have access to these reports (PSRs), the judges insist, are the FBI and the Bureau of Prisons “for the sole purpose of aiding in ongoing investigations specifically related to terrorist activity, for the safe placement of the defendant while incarcerated, and for possible deportation proceedings,” the former judges wrote. “These are the only authorized uses of the PSR.”

“It would be completely inappropriate to release a PSR for any other purpose,” they write. “Certain information, such as medical information, cannot be released … Other information could endanger a defendant and his family.” That’s not going to stop Republicans. “[Y]ou better believe” Sen. Lindsey Graham (R-SC) will bring them up in the future, he told Politico. “We have the right to see those reports,” said Sen. John Neely Kennedy (R-LA). Senators don’t indeed have that right. The judicial branch has already decided that.

But to keep pushing their “soft on crime” narrative against the Biden administration, which McConnell made clear in a floor statement Wednesday, Republicans are willing to revictimize the survivors of child sexual abuse and their families.

They’re doubling down on support for Clarence Thomas, who in all likelihood knew about his wife’s participation in a conspiracy to overthrow the government and attempted to use his position on the high court to cover it up.

There really is only one thing Democrats can do to save the Supreme Court, the federal judiciary, and pretty much this whole 233-year-old constitutional experiment from Republicans: Expand the court. Dilute the malign power of the majority on this court that wants to overthrow a century of progress.

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