Warnings about forces shaping the future of the US Supreme Court were the common denominator in two virtual “On the Issues with Mike Gousha” programs in recent days. But the warnings pointed in much different directions.
In one conversation with Gousha, the Law School’s distinguished fellow in law and public policy, Russ Feingold, a former Democratic senator from Wisconsin who recently became president of the American Constitution Society, said that if Democrats regain control of the White House and Senate, action may be taken to respond to what he called the stealing of two US Supreme Court seats by Republicans.
Feingold said that Republicans who rapidly approved the nomination of Justice Amy Coney Barrett are “setting off a situation where progressives and Democrats and others may have no choice but to consider the basic nature of judicial tenure or the number of members on the Supreme Court.”
“When you have been stolen form — and I will maintain that view — there needs to be compensation, there needs to be reparation, “Feingold said. “Something has to be done to undo this, or the United State Supreme Court is going to be in a freefall in terms of its credibility.”
The second seat Feingold referred to as stolen was the one denied Judge Merrick Garland in 2016 after he was nominated to the Court by President Barack Obama and Republicans refused to consider him.
The American Constitution Society is a liberal organization that is intended to counter the conservative Federalist Society, which has been deeply involved in appointments of justices and federal judges. While the American Constitution Society is not allowed to lobby on political matters, Feingold was clear on his own views and those of allies of the society.
In the other conversation, David French and Sarah Isgur, both involved with The Dispatch, a conservative multi-media organization, said that steps such as the ones Feingold described would not succeed. French is a senior editor at The Dispatch, a columnist for Time, and an author. Isgur is a staff writer for The Dispatch and a commentator on CNN. She worked formerly for the Republican National Committee and was a spokesperson for US Attorney General Jeff Sessions.
French said, “Every escalation is accompanied by a greater and opposite additional escalation.” If Democrats add four justices to the Supreme Court to give it a 7 to 6 liberal majority, that will only set things up for retaliation when Republicans gain control. “There won’t be a limiting principle,” he said. “If you continually escalate, the question is always, where does this stop?”
Isgur suggested that if Democrats control Congress next year, they may try to include in some laws “jurisdiction stripping” provisions that would try to stop the Supreme Court from overruling provisions in the law. She said that could lead to a new version of the Marbury v. Madison decision of 1803 that established that the Court could rule that laws are unconstitutional.
French and Isgur differed with Feingold over the speed at which Barrett was approved as a justice. Feingold called the handling of the nomination “outrageous, disgusting (and) totally wrong.”
He said the approval of Barrett less than six weeks after the death of Justice Ruth Bader Ginsburg “is an abuse of our constitution, this is an abuse of the process.“ Those involved in the nomination “are delegitimizing the United States Supreme Court, they are making it look like a kangaroo court in the eyes of the American people because of this process.
But Isgur said, “I think it’s a little silly to say that it’s rushed.” She said if the Barrett nomination had proceeded more slowly, no votes would have been changed. “Whether a process is rushed or not is in the eye of the beholder,” she said.
French, however, said he agreed with those who said Republicans in the Senate were being hypocritical by refusing to consider Garland and then speedily approving Barrett. “In that sense, it’s an escalation,” he said.
He said that while some supporters, as well as critics, of Barrett expect her to be a strong conservative force on the Court, he thinks she will be “evolutionary, not revolutionary.” Conservatives already have majorities on many issues, and she will reenforce trends without backing huge change, he suggested. He also said that he is “extremely skeptical” that the Roe V. Wade abortion rights decision will be thrown out as a whole.
Feingold said that if the Court overturns laws such as the Affordable Care Act, the justices will be “replacing themselves for the duly elected representatives of the people of our country, so there’s a lot at stake here.” He said he hopes that ways can be found to bring the Supreme Court back to a less-partisan and more balanced situation.
French, who has been a prominent voice of conservatives who do not support President Trump, said he agreed with those who say Trump is a threat to the rule of law. He said that is not because of the judges Trump has nominated to the Supreme Court and lower courts, but because Trump thinks the law is valid when it supports him and invalid when it goes against him. That is “far more dangerous than this judge or that judge,” French said. “It’s that cultural impact of that decaying respect for the law that is a threat.”
In a new book, titled Divided We Fall: America’s Secession Threat and How to Restore our Nation, French raises concerns that, if divisive trends continue, it may be hard to keep the United States united.
Video of the conversation with Feingold may be viewed by clicking here.
Video of the conversation with French and Isgur may be viewed by clicking here.