Appearing on MSNBC’s Morning Joe on Friday, CNBC founder and former NBC Cable president Tom Rogers argued that Democrats should respond to President Trump naming a replacement for Supreme Court Justice Anthony Kennedy by expanding the size of the court and packing it with liberals if they win control of Congress and the White House in 2020.
Co-host Mika Brzezinski eagerly read from a recent op-ed Rogers authored advocating the radical move:
So you write, in part, this in your piece, which is fascinating, “Many may be surprised to learn that the Constitution does not specify the number of justices on the Supreme Court, it only dictates that there be such a court....If the Democrats take the House, Senate and presidency in 2020 this neutralization of the nuclear option by expanding the court is very viable. Moreover, there is much historical precedent for doing so. The Democrats could simply increase the number of justices to neutralize any ideologically extreme appointments that President Trump is successful from making in this point in time on forward.”
While fellow co-host Joe Scarborough admitted that “this obviously several years ago would have been a laughable premise,” he proceeded to justify the outrageous idea by attacking Senate Republicans: “Mitch McConnell decided, hey, he was going to change the rules.... But when you create a climate where there are no rules, then you have to understand the other side is going to respond accordingly. And that’s what these Republicans don’t seem to understand.”
He only briefly acknowledged the role Democrats played in creating the contentious climate on judicial nominees: “Well, the Democrats decided first, ‘We’re going to change the rules so we don’t need a filibuster-proof 60 to vote on federal judges.’ Then Republicans, I believe it was, switched it to 50, did the same thing for the Supreme Court, first time ever.”
With both hosts having voiced their support for the controversial proposal, Rogers was given free rein to further promote his left-wing fantasy. “And the fact of the matter is, just because of what you said, they [Republicans] may change the direction of the company – of the country – through the courts for the next two years, but if the Democrats win the presidency and House and Senate, they have the ability...to go back where there has been plenty of historical precedent, increase the court.”
The former NBC executive, who actually helped create MSNBC, proclaimed: “This is about restoring centrist moderation to the court, putting an additional justice on for every far right justice that’s approved under the kind of rules that Mitch McConnell put forward.”
Republican strategist Susan Del Percio provided the only voice of dissent during the panel discussion:
I guess what’s also concerning is that we take these actions and take such a substantial action simply because we didn’t like the result of an election. Because we don’t like the current president. That makes me a little uncomfortable when we start looking at why we should change the face of the court. Because that’s just in political interest.
Rogers dismissed such concerns and reiterated: “But the fact of the matter is, there is an immediate response – again, it’s all about elections, it’s all about taking both houses and the presidency – but if they do it, there’s nothing that says what Trump does here defines a generation or more of the court.”
At the end of the segment, Rogers declared:
Mitch McConnell thinks his legacy is going to be delivering the court to the far right for generations to come. I predict, if they push it through on the 51 vote, what’s going to happen is the Democrats are going to be left with the tactic that I suggest here and he is actually going to be the catalyst for the counter-reaction that delivers the court to the Democrats through expanding the size of the court.
MSNBC certainly knows what its liberal viewers want to hear. Rather than accept the reality that Trump and Senate Republicans are fulfilling their constitutional obligation to nominate and confirm a Supreme Court justice, Rogers simply imagines some future alternate reality where Democrats can just undo it all.
Here is a transcript of the June 29 exchange:
7:40 AM ET
MIKA BRZEZINSKI: Joining us now, New York Times reporter Jeremy Peters. Also with us, founder of CNBC, now a CNBC contributor, Tom Rogers. Tom is former CEO of Tivo and former president of NBC Cable. He now serves as the executive chairman of WinView and served as counsel to a congressional committee. Tom’s got a great piece out, good to have you on board.
JOE SCARBOROUGH: Yeah, great having you guys with us. Tom, you raise an interesting question and suggest that the Democrats neutralize the nuclear option, you write in the op-ed.
BRZEZINSKI: So you write, in part, this in your piece, which is fascinating, “Many may be surprised to learn that the Constitution does not specify the number of justices on the Supreme Court, it only dictates that there be such a court. It has been left to Congress to determine the size of the court. The Judiciary Act of 1789 set that number at six. In 1807, Congress raised the number to seven, amended in 1837 to nine. 1863 raised to 10, 1866 set back to seven. In 1869, it was changed again back to nine. If the Democrats take the House, Senate and presidency in 2020 this neutralization of the nuclear option by expanding the court is very viable. Moreover, there is much historical precedent for doing so. The Democrats could simply increase the number of justices to neutralize any ideologically extreme appointments that President Trump is successful from making in this point in time on forward.”
SCARBOROUGH: So, you know, this obviously several years ago would have been a laughable premise, and then Mitch McConnell decided, hey, he was going to change the rules. Well, the Democrats decided first, “We’re going to change the rules so we don’t need a filibuster-proof 60 to vote on federal judges.” Then Republicans, I believe it was, switched it to 50, did the same thing for the Supreme Court, first time ever. Then Mitch McConnell just decided we’re just not even going to have a hearing. In fact, we’re not even going to let him come to Capitol Hill and talk to us.
And so, Ben Wittes and Miguel Estrada, a man who was treated horrifically by Senate Democrats because he’s a Hispanic, that simple, he’s a conservative Hispanic, was treated horrifically, they wrote a column a couple of days ago – or actually back in February – for The Washington Post, saying, “There are no rules. Let’s just stop pretending there are rules. There are no rules anymore on how we appoint justices.”
In that scenario, why wouldn’t a party in power later on say, “Well, you know what, it’s been changed one, two, three, four, five, six – six times already. So constitutionally, Congress has the right to change it a seventh time. Maybe we’ll make it 10, maybe we’ll make it 11, maybe we’ll make it 12.” But when you create a climate where there are no rules, then you have to understand the other side is going to respond accordingly. And that’s what these Republicans don’t seem to understand.
TOM ROGERS: Well, they don’t seem to understand it, but all the commentary on every channel over and over again is, “Hey, if they get this appointment through, it’s gonna change the direction of the country for a generation or more.” And the fact of the matter is, just because of what you said, they may change the direction of the company – of the country – through the courts for the next two years, but if the Democrats win the presidency and House and Senate, they have the ability, not just doing what you said, some of the more recent actions, which are without historical precedent, but to go back where there has been plenty of historical precedent, increase the court.
Now, you can look at that and say hey, you know what this is about, if we do this? This is about restoring centrist moderation to the court, putting an additional justice on for every far right justice that’s approved under the kind of rules that Mitch McConnell put forward.
SCARBOROUGH: Again, the logic doesn’t matter. What the court will be looking at, Susan, is precedent. And there is precedent for the United States Congress doing this. And this reminds me of what I said to Republicans in 1999, when we were talking about impeachment. I said, “You all are acting,” at the beginning when it was, when everything was exploding, I said, “You all are acting like Republicans are going to be in the minority forever or like we’re never going to be in the White House again. You better start judging this impeachment process and the decisions you make understanding that the next president may be a Republican.” And the next year, of course, Bush was the president.
SUSAN DEL PERCIO [REPUBLICAN STRATEGIST]: I guess what’s also concerning is that we take these actions and take such a substantial action simply because we didn’t like the result of an election. Because we don’t like the current president. That makes me a little uncomfortable when we start looking at why we should change the face of the court. Because that’s just in political interest.
Now, I understand the fight from the Democrats’ side. And if they – they wouldn’t need to get control of all three, but have 60, correct, in the Senate, to make such a change?
ROGERS: Well, not necessarily.
DEL PERCIO: Not necessarily? Okay.
ROGERS: Under the McConnell rule, 51 is what you need for the Supreme Court, I think they could amend the Senate rule and make it for legislation defining the size of the court.
SCARBOROUGH: Well, not only.
DEL PERCIO: And just one other question, why hasn’t it been changed in so many years? What would be the reason?
ROGERS: Interestingly, the reason it went up and down for so many years is Supreme Court justices actually used to have to travel to sit with the so-called circuit courts, the courts of appeals, and each justice had a specific area. And so, as they increased the number of circuits as the country grew, they increased the size of the court. It did get political during the time of Andrew Johnson, where Lincoln had expanded the size of the court to 10. Noted: the father of the Republican Party expanded the court to 10. And it got political when they wanted to reduce any ability of Johnson to make appointments, brought it back down to seven. Then it was brought up to nine. It stayed at nine.
Of course, FDR took a run at it during his administration, tried to bring it up to 15. But the fact of the matter is, there is an immediate response – again, it’s all about elections, it’s all about taking both houses and the presidency – but if they do it, there’s nothing that says what Trump does here defines a generation or more of the court.
(...)
7:51 AM
SCARBOROUGH: We gotta go, but quick final thoughts?
ROGERS: Mitch McConnell thinks his legacy is going to be delivering the court to the far right for generations to come. I predict, if they push it through on the 51 vote, what’s going to happen is the Democrats are going to be left with the tactic that I suggest here...
BRZEZINSKI: Wow.
ROGERS: ...and he is actually going to be the catalyst for the counter-reaction that delivers the court to the Democrats through expanding the size of the court.
BRZESINSKI: Wow, Tom Rogers, thank you very much.
(...)
