Democratic nominee Joe Biden, left-leaning activists, and sympathetic media figures are now pressing the idea that Republicans filling vacancies on the federal court and confirming conservative judges constitutes “court packing,” despite such actions having nothing to do with actually “packing” the Supreme Court.
After dodging questions on whether he supports adding seats to the Supreme Court in order to counteract conservative influence, especially if judge Amy Coney Barrett is confirmed in the next several weeks, Biden accused Republicans of “unconstitutional” behavior and “packing” the court themselves.
“The only court packing that’s going on right now is going on with Republicans,” Biden insisted.
Court-packing, of course, has a very specific definition. As The Daily Wire noted Sunday, the practice, which originated with President Franklin Delano Roosevelt through the Judicial Procedures Reform Bill of 1937, involves appointing “up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.”
“The U.S. Constitution set up America’s high court but did not establish how many justices should serve, leaving that up to Congress,” the Daily Wire’s Joseph Curl noted. “The Judiciary Act of 1789 put the number at six; that number rose to seven in 1807 and to nine in 1837. The number rose to 10 in 1863, then dropped back down to seven in 1866. In 1869, Congress raised the number of justices to nine, where it has stood ever since.”
But Democrats are now pressing the line that confirming judges to open seats — particularly conservative judges — constitutes “court packing,” and the memo has gone out not only to competing politicos but also to left-leaning activists and sympathetic media figures.
Sam Berger, the vice president of the far-left Center for American Progress, tried to establish “conservative court packing” with a chart comparing how many judges former President Barack Obama appointed in comparison to how many President Donald Trump confirmed with the aid of a friendly Senate led by Sen. Mitch McConnell (R-KY).
“Conservative court packing in one chart,” Berger claimed. “Conservatives’ stealth court-packing plan[.] Step 1: Steal seats by blocking confirmation of judges until WH and Senate are under conservative control. Step 2: Change the rules to appoint the most partisan conservative judges at breakneck speed.”
Conservative court packing in one chart. pic.twitter.com/MvnM9S2xgP
— Sam Berger (@SamBerger_DC) October 10, 2020
The Republican Senate, of course, refused to confirm judges appointed by a political rival, Obama. When Republicans regained control of the White House, the Senate confirmation process moved swiftly for those seats vacated during Obama’s second term. That is, after all, how the two party process works.
Retired Sen. Harry Reid (D-NV) made the process easier, deciding early on in Obama’s tenure that the Senate should do away with the “supermajority” required to confirm judges, clearing the way for Republicans to confirm hundreds of appointees later on.
Former newsman Dan Rather tried to weigh in himself, attacking Republicans for packing the courts by refusing to confirm Merrick Garland to the Supreme Court in 2016.
Can we at least recognize that “Court Packing” at all levels of the judiciary has been the Republican playbook for decades? Asking for Merrick Garland.
— Dan Rather (@DanRather) October 11, 2020
That’s still, of course, not “court packing.” Garland did not receive a hearing, paving the way for Trump to appoint his own justice immediately upon taking office, but to a vacant — not additional — Supreme Court seat.
The Washington Post’s Ruth Marcus went one step further, suggesting that not only was Trump prohibited from filling the seat left empty by Justice Antonin Scalia’s untimely death but that Trump was not “entitled” to fill the seat left vacant by Justice Anthony Kennedy’s retirement.
Not entitled to fill?! pic.twitter.com/s4HawFcOoT
— Christopher J. Scalia (@cjscalia) October 11, 2020
Again, both seats were vacant, not added to the Supreme Court, but the purpose appears to be to muddy the definition of “court packing” for a public that is not perfectly educated on American civics.
President Donald Trump fired back at Democrats Sunday, accusing the “far-left” of holding Biden hostage to the idea of packing the Supreme Court with additional members if Barrett is confirmed. Her Senate confirmation hearings begin on Monday.