Court Packing Advocates Probably Cost Democrats The Senate

GOP focused on popular media trope and cashed in.

Look, maybe the polls in these races were all irrecoverably broken. That’s certainly possible as the presidential numbers seem to have been off by far more than anyone was expecting. But there actually were signs that the key Senate races were tightening in recent days, which coupled with the overarching error, may explain what we’re seeing.

What caused that movement down the stretch? Apparently the rise in chatter over a Supreme Court expansion effort that was branded — cynically or not — as “court packing.”

Here’s Iowa Senator Joni Ernst who doesn’t even know how her own state’s economy works working out her closing narrative.

In North Carolina, Senator Thom Tillis — who might still lose — currently holds onto a lead that no one projected him to have at this point. In the last week and a half, here’s what he was crafting as the centerpiece of his campaign.

Susan Collins, the most vulnerable GOP Senator not named “McSally” this cycle, turned to generating headlines like this:

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And so on.

The irony, of course, is that none of these challengers expressed actual support for court expansion, and, at least in the case of Maine, explicitly tried to distance the campaigns from the proposal. But that didn’t really matter. A number of prominent legal commentators had churned out articles and turned social media into court expansion cheering sections which elevated the proposal to a seat as a prime election talking point.

Joe Biden even got asked about it point blank in a town hall. He ultimately punted and proposed a committee to defer conversation and bury the enthusiasm out there under a mound of bureaucracy, but the damage was already done.

And it appears to have worked. Without any input from the candidates themselves, Democrats were tagged as court packers and the incumbents leaned on that hard in the closing days. People rightfully scorn folks like Thomas Friedman for promoting stupidity as “challenging conventional wisdom,” but when he advocated voting for Biden and Republican Senators he gave voice to this strategy — “we know you don’t like Trump, but if you don’t want court packing, at least split your ticket and vote for us.”

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The challengers certainly bear some of the blame. Denials don’t escape unfair labels. The other side will just say your denials can’t be trusted. The only right answer is to change the narrative with a whole new proposal. Respond with “no, I don’t support that but I do support this other popular idea.” That could have gotten them somewhere other than the unemployment line.

And in this case there was just such a popular idea sitting right there on the floor of the House the whole time! The term limits proposal wouldn’t reverse the conservative majority on the Court tomorrow, but it would improve the nomination process by nerfing the stakes of each individual pick, expanding the pool of available jurists by not requiring nominees that will live for decades to come, and ending the idea that the American experiment should ever rely on people who are unelected and hold office for life. Expansion can be a last resort negotiating tactic, but never the starting position of a party that styles itself as defenders of good governance.

Just like in 2015 when liberals waved off the possibility of reforming the judiciary because they thought they were about to win, liberals this time around saw the chance to take their own turn taking a baseball bat to norms of good governance like McConnell has and hyped themselves up for a broadly unpopular maximalist position that ended up as an Albatross around their Senate hopes. Maybe next time they can try something other than oscillating between doing absolutely nothing and trying to out Republican the Republicans and just advocate for the overwhelmingly popular term limits proposal. Because doing the right thing instead of what would be in the party’s immediate best interests could well have saved the Senate for them.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.