From The Archives -- Unpacking The Court

[ Posted Tuesday, November 19th, 2013 – 17:57 UTC ]

It seems to be time for another round of threatening "the nuclear option" in the Senate, but before we get into the details, it's worth providing a bit of context. I wrote this article back in May, and not much has changed since then. There was one brief week where Democrats walked right up to the nuclear trigger and Republicans backed down and allowed Richard Cordray to be approved by the Senate, but immediately afterwards the Republicans started blocking everyone again, and the three seats on the D.C. Circuit Court remain unfilled. President Obama has named three candidates, and all three have been blocked in the last few weeks by Republicans in the Senate once again. While this round of brinksmanship is just beginning, the fight over the judges has been going on for a while. Which is why this article deserves reading now -- to set the stage for the upcoming battle.


Originally published May 28, 2013

In one of their stunning (but regular) "up is down" leaps of illogic, the Republican Party is charging President Obama with "court-packing." In reality, they're just miffed that a Democrat is going to exercise his constitutional authority to appoint judges in the regular order of things. To call such actions "court-packing" is nothing short of laughable, to be blunt. In fact, the only hinkey business afoot is coming from Republicans themselves on the issue.

Let's "unpack" the situation a bit, shall we? The D.C. Circuit Court of Appeals is the most important appellate court in the country, for two reasons. The first is that it is seen as a sort of minor-league farm team from which presidents (from both parties) routinely choose Supreme Court justices. The second reason is the really important one, however -- this is the appeals court where many cases which are on the fast track to the Supreme Court normally get decided. Meaning the political makeup of such a court is more important than other circuit courts.

The court is supposed to have eleven judges on it. It currently has eight. President Obama is rumored to be about to announce three nominations to fill the three vacancies. He finally got one of his nominees, Sri Srinivasan, approved last week by the Senate. But there are three more vacancies to fill, and the Constitution allows whoever is president to name replacements. Much to Republicans' dismay.

Republican dismay over Democratic judicial nominations is common and to be expected, of course. What isn't common, however, is the charge of "court-packing." Which is, in a word, ludicrous. Or, perhaps, laughable. The term itself comes from a battle between the branches of the federal government in the Depression, of course. President Franklin Delano Roosevelt was faced with a very conservative court which had handed him some stunning defeats by ruling major sections of the "New Deal" legislation unconstitutional. Roosevelt responded by attempting to "pack" the court with his own nominees. He announced he would be asking Congress for legislation to expand the Supreme Court to fifteen justices, thereby adding six who would assumably agree with his administration's political aims. This would have decisively tipped the balance of power of the court to his side.

While the gambit ultimately failed, it is interesting to at least point out that F.D.R. wasn't actually attempting anything unconstitutional. There is no set number for how many justices sit on the Supreme Court, and the number has fluctuated over American history. There's nothing sacred or even inherently in the Constitution which specifies nine, in other words. F.D.R. even asked Congress to approve the plan. But politically, it was seen as overreach by the executive branch in order to meddle in the judicial branch's affairs. One last interesting fact about Roosevelt's court-packing scheme: in the end, it worked. The Supreme Court realized how unpopular their decisions had been, and began dialing their own disapproval of the New Deal way back. F.D.R. also had the last laugh, because of his own longevity in the job -- eventually justices retired, allowing him to nominate his own.

This is the only definition the term "court-packing" has -- a president attempting to get his own way by unconventional ways, or by enlarging a court beyond its previous membership to tip its balance in his favor. What President Obama is doing simply does not fit this definition at all. Yes, Obama is going to nominate judges he approves of -- but that's his job, as defined by the Constitution. The court's membership is supposed to be eleven. There are only eight judges currently on the court -- four nominated by Republicans and four nominated by Democrats. Yes, this is going to mean that if the Senate approves his nominees, the court will tilt 7-4 toward the Democrats. But that is exactly what is supposed to happen. Winning presidential elections has consequences, and this is one of them. Any Republican who thinks this is unfair should consider that 15 of the last 19 nominees to this court have been made by Republican presidents. That's 15-4, or if Obama gets his nominees through, it will still be 15-7 in favor of Republicans. That's the way it goes, folks.

Not only is President Obama not "packing" the court, in fact the ones who are guilty of attempting to tamper with the court's makeup are the same people who are casually tossing around the "court-packing" charge. Republicans have come up with their own scheme -- just let the court stay at eight judges and get rid of the other three seats on it. Their reasoning (if you can call it that) is that the D.C. Circuit Court of Appeals has "less of a caseload" than other circuit courts, so they must not need so many judges. This ignores the fact that the cases they do get are (as mentioned) the ones heading for the Supreme Court -- which means they're a lot more complex than the cases other circuit courts routinely handle. The Republicans' ulterior motive is pretty plain to see: freeze the court at a 4-4 balance, so it won't rule the way they don't like.

This is not "court-packing," but it is just as blatant an attempt at court-tampering as what Roosevelt attempted, in fact. Call it "court-unpacking," perhaps. What makes the entire thing laughably ironic is that Republicans are trying the old "hit the other side with charges that they're doing what you're attempting" spin. So far, it doesn't look like it's working. Their real goals are so nakedly transparent that it's pretty easy to see what's going on. The entire thing is nothing more than a Republican temper tantrum over the fact that they lost the presidential election last year.

This is flying below most people's radar, for the moment. But it could become an enormous battle in July. Senate Majority Leader Harry Reid is indicating that -- after the Senate debates immigration reform next month -- they're going to be moving on to presidential nominations. If the Republicans continue their solid stonewall of obstruction on such nominees, Reid is already threatening to use the "nuclear option" to change the filibuster rules. This is a subject for another day, however. For now, all you need to know is that the only possible proper response to any Republican attempting the "Obama's court-packing" spin is to laugh loudly and rudely in his or her face. One party is indeed attempting to meddle and interfere with judicial appointments and the balance of power on an important court, but it is not President Obama's Democrats who are doing so.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


One Comment on “From The Archives -- Unpacking The Court”

  1. [1] 
    Michale wrote:

    Following my usual pattern of treating Archive Commentaries as open topics and getting away from my normal topic of the month (at least for a moment.. :D), let me post this for ya'alls edification and enjoyment..

    Slaves of the Internet, Unite!

    CW, I think you especially would get a kick out of this.. :D

    I would also be particularly interested in your thoughts..

    Speaking of my own personal experiences in this area, it can all be summed up in a T-Shirt I sometimes wear when I am in a particularly foul mood..

    NO. I will NOT fix your computer for free.


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