The Question
The Republicans screamed their talking point from Sunday’s news shows. “Joe Biden won’t answer the question!!!! He won’t say if he’ll ‘pack’ the Supreme Court!”
You can’t blame them for trying to change the conversation. There’s not a whole lot of good news coming from the Trump camp. Son Eric had a disastrous interview on ABC, coming across as strident and whiny at the same time. Daughter-in-law Lara did better on the safer Fox Sunday venue. But neither could come up with straight answers to either the New York Times expose of Trump finances, or the President’s health.
And the polls look terrible for Trump 2020. It’s not just the “blue wall” states of Wisconsin, Michigan and Pennsylvania. It’s Ohio, North Carolina, Florida, and Arizona, and even Georgia and maybe Texas that are trending to Joe Biden. So Trump needs to change the subject – and “packing” the Court might help.
Biden has a convoluted answer. The former Vice President said that, “if he answers the question it will make it the lead story,” so he refuses to answer. Biden wants to keep the focus on the President’s COVID response. Anything else is “off the subject” as far as Democrats are concerned. But his ticket needs to come up with a better answer than, “we don’t want to answer that question”. So here’s a look at Congress, the President and the Court throughout history.
Judges on the Bench
First of all, Congress, not the Courts or the President, establishes the number of judges at all levels of the Federal Court system. This includes the United States Supreme Court. The original Supreme Court in 1789 had six Justices. Eighteen years later that was increased to seven, then thirty years after than to nine. During the Civil War the number was briefly increased to ten, then right after the war shrunk back to seven. That shrinkage was to prevent President Andrew Johnson from appointing any Justices at all. With the election of Grant in 1869, Congress placed the number back at nine.
It’s been nine ever since. In 1937 Franklin Roosevelt proposed to add a Justice for every serving Justice over the age of seventy for a possible total of fifteen Justices. Congress didn’t go for that, but strangely enough, the existing Justices changed. They began to find the New Deal legislation Constitutional, ones that they were previously ruled unconstitutional. While no one admitted that Roosevelt’s pressure impacted their decisions, the proof is in the results.
Trying to gain political control of the Courts isn’t just at the Supreme Court level. The second President of the United States, John Adams, was a Federalist. He was defeated for a second term in office by Thomas Jefferson, of the opposing Democratic-Republicans. In the months before Jefferson was inaugurated, Adams made a concerted effort to place as many Federalist into lifetime judicial positions as possible. One of those Federalist Judges was the Chief Justice John Marshall, but another created the famous Supreme Court case of Marbury v Madison, the last of the “midnight judges”.
It is Politics
So seeing the Courts as an institution immune to political influence or control is naïve. It’s been happening since the founding of the Republic. In recent years, the Federalist Society, an organization of judges, attorneys, law schools and students, has made it their goal to gain a majority on the Supreme Court. They’ve been working towards that goal since their founding thirty-eight years ago. Today five members of the Supreme Court, including Chief Justice Roberts, are Federalist Society adherents.
Say what you want about Senate Majority Leader Mitch McConnell and President Trump: they have had a single-minded focus when it comes to packing the present Judiciary with Federalist Society members. There are a total of 870 Federal judgeships in the Court System. In the past three and a half years, Trump and McConnell have appointed 206 judges, almost a quarter of the Judiciary. That includes 151 District Judges, 53 Appellate Court positions, and, of course two (soon to be three) Supreme Court Justices. All of those appointments are lifetime positions.
No one is talking about how all of those appointments, and particularly those at the Appellate level, will dramatically alter the Federal Courts interpretation of law. If Democrats get the opportunity in 2021 to control the Congress and the Presidency, they might look to not only expand the number of Supreme Court Justices, but also the number of Appellate Court positions so they can “level” the field.
Biden’s Answer
So what should the “Biden Court Packing” answer be? I think he should say the following:
First – Senator McConnell set the rules in 2016 – no Supreme Court appointments in an election year. Whether that “rule” was good or bad is irrelevant, it’s the rule he set and we should expect him to honor his own rule, and not vote on a Supreme Court nominee until after the inauguration in 2021.
Second – If Senator McConnell decides to flaunt his own rule it’s obvious he has no concerns about the “norms” for judicial appointments. “Norms” are only fair if both sides follow them, so if McConnell brings a Supreme Court nomination to a vote, then those norms don’t apply.
Third – Everything after that is hypothetical. What happens next can only be answered after the real actions of Senator McConnell. So if McConnell doesn’t want a Congress in the future to contemplate expanding the Courts, he should follow the rules that he set in 2016.
Biden and Democrats should place the decision right where it belongs: with the Republican Senator from Kentucky who is done everything he can to “pack” the Courts with his own ideology. If McConnell proceeds with the Barrett nomination, then he is opening the door to further politicization of the Court. Biden isn’t the “Court Packer” (yet), McConnell is. And if one Party is doing the packing, it shouldn’t surprise anyone that the other Party will contemplate it.
It’s nothing new.
