The four former top US lawyers, all Republicans, sent a letter to ABC executives on Tuesday morning demanding that the network’s moderators ask two questions about the court for the presidential debate scheduled for September 10. Their letter states that the presidential candidates have so far had “little opportunity to explain their position on current Supreme Court issues” in this election campaign.
Former Attorneys General William Barr, Ed Meese, Mike Mukasey and Jeff Sessions point out that “several measures have been proposed to reshape the Court,” primarily by liberal Democrats. One of those measures, “enlarging the U.S. Supreme Court by adding more justices,” would “require only a majority vote in Congress” (and a president’s signature) and is therefore politically very significant. So they say, quite simply, that the moderators should ask the two candidates, “What do you think about enlarging the U.S. Supreme Court?”
The letter makes no mention, except perhaps between the lines, that expanding the court, known colloquially as “court packing,” is a terrible idea — especially when motivated by partisan or ideological agendas. Yes, the Constitution allows Congress to change the size of the Supreme Court, but for the past 160 years, the court has consisted of nine justices. And for good reason: If Congress were to increase the number of justices, thereby changing the philosophical direction of the court’s jurisprudence, it would undermine the public ideal of the Supreme Court as a relatively apolitical institution seeking to dispense equal justice under the law.
The four attorneys general are joined by Kelly Shackelford, president of the First Liberty Institute, which studies religious freedom litigation. Together they suggest that the debate moderators ask a second question: “What criteria will you consider when deciding who to nominate to the U.S. Supreme Court if a vacancy occurs during your term?”
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The correct answer, conservatives believe, would not refer to particular case outcomes or positions on particular “issues,” but rather describe a judicial approach that closely examines the text of the Constitution and statutes and honestly attempts to apply the original public meaning of that text, regardless of which current political “side” favors or opposes the outcome.
Regardless of how the candidates answer these questions, the five signatories of the letter deserve great praise for calling on ABC to give this issue the attention it deserves.
