I hesitate to publish this, because the Democrats are wimps who don’t have the chutzpah required for this. But I fear the Republicans in a similar position wouldn’t hesitate at all.
I’m not a lawyer or a Constitutional scholar, but here’s the idea.
Article II, Section 2 of the Constitution states
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court
So, the President has the unfettered core power to nominate “judges of the Supreme Court”, and if the Senate consents via a majority vote, he has the unfettered power to appoint them to the Supreme Court.
Nothing in the Constitution describes how many “judges” should sit on the Supreme Court, and there is no role for the House of Representatives in the selection and appointment of those judges.
Now, I know someone is going to point to the Judiciary act, which limits the Supreme Court to 9 members. I would argue that it is unconstitutional to limit the President’s core powers, just as it is now unconstitutional to prosecute the President for any criminal actions when exercising those core powers.
So the President and the Senate (where we barely have a majority) could act as described above. Biden and the Senate should immediately nominate, confirm and appoint 10 Justices, as they are empowered to do by the Constitution.
It just requires the Democrats to have some Balls.
I can just see the speech announcing this action —
My fellow Americans, as you know the United States Supreme Court, as currently constituted really represents only a very small minority of our Great Nation. As you may be aware, 5 of the current Justices were confirmed by Senators representing a minority of our population, and 3 Jusitces were appointed by a President who was elected with a minority of the popular vote.
The current court is unconstrained by history, by precedent, by facts, and by ethics. The most recent decision involving Presidential Immunity demonstrates that they represent a clear and present danger to the rule of law, and to the principles of the founding fathers.
As your President, I cannot let this stand unopposed. Therefore, as allowed by the Constitution, I am using my power to nominate the following 10 individuals to the Supreme Court and subsequent to the consent of the Senate, I will appoint them to the Court. These individuals include conservative as well as liberal scholars and politicians. They are — Judge Michael Luttig, former Representative Liz Cheney, ex president Barack Obama, Representative Jamie Raskin, …
All of these great Americans have shown courage in the face of the ongoing insurrection — called the second revolution by the leader of the Heritage Foundation.
As soon as these appointments are made, I am directing the Solicitor General to file for emergency reconsideration of a number of critical cases.
I am also directing the Attorney General immediately open Criminal Investigations into the failure of any Justice to have filed timely and accurate conflict of interest statements.
I believe placing the President officially above the law is wrong, and treating Supreme Court Justices as above the law is also wrong.
Thank you and may God Bless America.