Jamelle Bouie of the New York Times has written a brief for federal court-packing — not only of the Supreme Court but of the federal judiciary at large — a column for which it can be said at least that the author is forthright about his intentions, using the verb “pack” four times.
Bouie is a habitually sloppy thinker and writer, and here falls into two of the most common modes of partisan hackery. The first is the argument that his party must “play hardball” (an expression used three times in the course of a 1,100-word column) or “play hardball back,” as Bouie puts it, lest the bad guys on the other team write their partisan “ideological preferences into the constitutional order.” Conservative talk radio is full of people lamenting the unwillingness of Republicans to “play hardball,” and the demand for “hardball” it put forward to justify all manner of abuses and dishonesty. Of course, Republicans in Congress think they are “playing hardball back” on judges and in other contests; on the matter of Merrick Garland, Mitch McConnell was, by his own lights, acting entirely within his constitutional powers but using those powers in a maximalist way in response to the maximalism of Barack Obama. Bouie here is engaged in the New York Times version of shrieking “But they started it!” as a justification for playground misbehavior. Republicans don’t think they started it — not where judges are concerned, anyway. They think Joe Biden and Ted Kennedy started it in October 1987 with the smearing of Robert Bork, which permanently changed the character of Supreme Court confirmation hearings.