Credit four former attorneys general of the United States for insisting that issues related to the Supreme Court should play a prominent role in this fall’s presidential election .
The four former top legal officers of the U.S., all Republicans, sent a letter Tuesday morning to ABC network executives saying the network’s moderators for the scheduled Sept. 10 presidential debate should ask two court-related questions. Their letter said that so far in this campaign, “the presidential candidates have had little opportunity to explain their stances” on Supreme Court topics.
Noting that “multiple measures have been proposed to transform the Court,” mostly by liberal Democrats, former Attorneys General William Barr, Ed Meese, Mike Mukasey, and Jeff Sessions wrote that one of those measures, “to expand the size of the U.S. Supreme Court by adding additional justices to the bench,” would “require only a majority vote in Congress” (and a president’s signature), and thus is very much in play politically. Quite simply, then, they said the moderators should ask the two candidates, “What is your position on expanding the size of the U.S. Supreme Court?”
Unstated in the letter, except perhaps in reading between the lines, is that expansion of the court, colloquially known as “court packing,” is a terrible idea — especially when motivated by partisan or ideological agendas. Yes, the Constitution does allow Congress to alter the size of the high court, but for the past 160 years, the court has remained at nine justices. And for very good reason: If Congress were to add to the number of justices so as to alter the philosophical direction of the court’s jurisprudence, it would erode the public ideal of the Supreme Court as a relatively apolitical institution trying to mete out equal justice under the law.
The four attorneys general are joined on the letter by Kelly Shackelford, the president of the First Liberty Institute, which litigates religious liberty cases. Together, they suggested debate moderators should ask a second question: “What criteria will you consider when deciding who to nominate to the U.S. Supreme Court if a vacancy should arise during your presidency?”
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The right answer, conservatives believe, would be one referring not to any particular case outcomes or “issue” positions but rather one describing a judicial approach that closely examines the text of the Constitution and statutes and honestly tries to apply that text’s original public meaning, no matter which political “side” favors or disfavors the result.
No matter how the candidates answer these questions, kudos to the letter’s five signatories for asking ABC to treat this topic with the attention it deserves.
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