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Over the weekend, Sam Berger of the Center for American Progress tried to make the claim that Republicans had packed federal courts with conservative nominees by confirming circuit court judges. Sen. Dick Durbin (D-Ill.) made a similar statement on Sunday during an appearance on Meet the Press. “The American people have watched the Republicans packing the court for the past three and a half years,” he said, “and they brag about it.”
Conservative court packing in one chart. pic.twitter.com/MvnM9S2xgP— Sam Berger (@SamBerger_DC) October 10, 2020
According to the Congressional Research Service, the number of federal circuit court judges hasn't changed since 1990. No new federal district court judges have been added since 2002. The statutory number of Supreme Court justices hasn’t changed since 1869. (Set in current statute in 28 U.S.C. 1.)
It’s true that Senate Majority Leader Mitch McConnell (R-Ky.) and the chairmen of the Senate Judiciary Committee -- Sen. Chuck Grassley (R-Iowa), who chaired the committee between January 2017 and January 2019, and Sen. Lindsey Graham (R-S.C.), who currently chairs the committee -- have prioritized the confirmation of circuit court and district court judges. Since President Trump took office, the Senate has confirmed 161 district court judges, 53 circuit court judges, and two Supreme Court justices.
Filling vacancies isn't "court-packing." One would have to change the meaning of, you know, words to make that court-packing. Court-packing means adding new seats to the Supreme Court and filling those seats with justices who will be favorable to a particular legislative and regulatory agendas.
Back in 1937, President Franklin D. Roosevelt devised a court-packing scheme after the Supreme Court struck down some parts of the New Deal, including significant parts of the Farm Bankruptcy Act in Louisville Joint Stock Land Bank v. Radford (1935), the National Industrial Recovery Act in Schechter Poultry Corp. v. United States (1935), and the Agricultural Adjustment Act in United States v. Butler (1936).
What FDR tried to do in 1937, before the Court flipped in West Coast Hotel Co. v. Parrish (1937), was court-packing. Before that decision, known as the “switch in time that saved nine,” FDR had pushed a plan to add one new Supreme Court justice, limited to six in total, for each one over the age of 70 with at least ten years of service. This would have meant a maximum of 15 justices on the Supreme Court.
In the end, FDR’s plan didn't go anywhere. There wasn’t much of an appetite for politicizing the Court from either Democrats or Republicans. Still, the Court flipped on New Deal legislation, so FDR still got what he wanted.
The fact that Joe Biden and Senate Democrats won’t give any indication of where they stand on court-packing -- which means increases the statutory number of justices on the Supreme Court -- is concerning. Asked on Friday if voters deserve to know his position on the subject, Biden said, “No, they don’t.”
Under Rule XXII of the Standing Rules of the Senate, it would take 60 votes to get over the procedural hurdle, known as cloture, to limit debate on any legislation. It’s almost certainly impossible to ram through legislation to increase the statutory number of justices unless Rule XXII is changed. The only way to get around that is to go nuclear on the legislative filibuster, requiring only a simple majority to limit debate.
Eliminating the filibuster shows a serious disregard for the institutions of our constitutional system of government. Democrats would simultaneously eliminate the Senate as a check against the House to increase the number of Supreme Court justices simply to have outcomes that they want from the Court. If that happens, the House-ification of the Senate and continue America’s slide into a direct democracy.