A good friend said to me yesterday that the new Supreme Court justice does have excellent qualifications, meaning legal ones. My response was that it was a given and should be a given that any nominee these days has the traditional academic success story. But teaching at law school and serving as an appellate judge for two years don't really provide much in the way of understanding the problems of ordinary people.
I don't judge judicial nominees by their academic standing but I do pay attention to their previous decisions and writings. If a nominee espouses down-the-line extreme conservatism, I'm not interested in how well she did in law school. She denied having fixed positions on major issues; this was ludicrous, because she has written specifically about why certain key past decisions were wrong. You expect her to reconsider those positions?
We're in for a bad time. We may need a new president to expand the court's membership just as FDR was finally inclined to do after four years of the Four Horsemen of Reaction: Van Devanter, McReynolds, Sutherland, and Butler. And they were only four. Despite what you may read about the "court packing" episode of 1937, it failed not because the public was against it but because FDR muffed it. He didn't even go over it with his legislative leaders or prepare the ground in any way for the effort.
And FDR acted precipitously, without adequate planning as well as spadework, because his strongest political adviser, Louis McHenry Howe, had just died. Louis Howe never would have let him go into this legislative battle without extensive advance work. He would have made sure that depending on the legislator, either he or FDR or both would have button-holed all of them.
As has been noted, expanding the court has been successfully proposed and effected by Washington, Adams, Jefferson, Jackson, and Lincoln. Another proposal in today's paper was to set up screening panels made up of rotating members selected from federal appeals court judges to decide what cases should go to the Supremes. That way, the high court justices cannot put a series of cases on the docket to move toward their own personal ideological goals, as several of the current reactionary bunch have been doing.
It's unlikely that we can ever go back to dealing with court membership apart from total political domination of the process. The cats are out of the bag. It's become increasingly partisan as the GOP has returned to its bad old days of putting extreme reactionaries on the court. Democrats for the most part acted as if things hadn't changed--they nominated candidates who were only slightly left of center or actually in the center. The so-called liberal wing hadn't been so liberal for a long time. But just as with the whole Republican party, their nominees have moved way over to the right. Scalia and Thomas set the pattern.
Now that the Supreme Court has jumped right into the political thicket that Frankfurter claimed with little basis that he tried to avoid, and as to which he was wrong, because gerrymandering won't go away when the pols who drew the district lines are the ones in office. Roberts's claim that the nation didn't need the Voting Rights Act's preclearing was as much of a lie as Trump's saying the pandemic is over.