Commentary: Packing the court?

In 1929, the devastating pandemic and the “War to End All Wars” were recent historical memories, while the excesses of the Roaring Twenties and the subsequent stock market crash were as real and nagging as an ingrown toenail. Many today remember reports of people jumping out of skyscrapers in ’29 (such as they were in those days), and the picture of a man selling apples on the streets of St. Louis for 5 cents each during the Great Depression. 

From the East rose a Democrat President who faced with the country’s greatest challenges since those confronted by Abraham Lincoln. He had defeated a Republican who did not believe in big government and was thought to be unconcerned about the plight of the poor who clustered in communities often referred to as “Hoovervilles.” There was a gathering storm in Europe as a former Austrian paper hanger consolidated his power by being appointed president of Germany while already serving as its chancellor. 

In 1929, Republicans had controlled the Presidency, both houses of Congress and pretty much the judiciary as well. In the 1930s, things were changing. 

To America’s new leader, this was a time for action — a time to rescue America from its unexpected and horrifying economic low. His answer was the “New Deal,” a composite of bold social programs and back-to-work initiatives, which Republicans viewed as expensive, big-government socialism. Roosevelt had a vision, but the U.S. Supreme Court posed a problem. 

At the Supreme Court, there were four sure conservative votes and three solid liberal votes. At times, the court blocked Roosevelt’s New Deal initiatives by a 5-4 vote. In a quirk of historical humor, the swing vote was sometimes Justice Roberts (Owen, not John). Amid the turmoil came the Rooseveltian proposal to “pack the court.” His plan was to appoint a new justice each time a justice turned 70 ½ years old and didn’t retire — up to a maximum of six new justices. 

Some 83 years later, the concept of packing the court has resurfaced. The Biden/Harris ticket dodged and weaved on that one, which brought more questions and an eventual statement that placated the press for a while but didn’t commit one way or the other.  

Democrats are currently ticked off at Sen. Mitch McConnell, and rightfully so. During the last two years of the Obama administration, very few judges were approved to the federal bench. This resulted in a flood of actual appointments during the Trump administration. McConnell seems to have cemented his reputation as a master politician and manipulator in respect to the rules and ways of the U.S. Senate, in significant part due to his handling of judicial nominations. He apparently learned about judicial appointments working for U.S. Sen. Marlow Cook of Kentucky during the time when President Richard M. Nixon saw two Supreme Court nominees, Clement F. Haynsworth Jr. and G. Harrold Carswell, incinerated in the Senate.  As a Senate Doorkeeper, I witnessed those votes, and those memories and lessons are keen for me as well.  

The politics of judicial appointments is nothing new. The partial defense of McConnell is the precedent established by Democrats in an effort to overcome the logjam of judicial appointments in 2013. Then Senate Majority Leader Harry Reid changed the rules to eliminate filibusters for federal judges and executive branch nominees, with the exception of the Supreme Court. At the time, this gave more power to the Democrats, which McConnell told Reid he would regret.  When the Republicans took over the Senate in 2015, McConnell’s warning came to pass.

When it comes to judges, attention typically focuses on the Supreme Court. That body reviews fewer than 100 cases a year, however, whereas the Federal Court of Appeals reviews tens of thousands of cases, and the U.S. District Court judges initially try most of those, as well as many others. The Senate approves or blocks appointments to all of those judgeships. 

McConnell’s determination to shape the entire judiciary as a conservative bulwark for decades to come worked by blocking Obama’s nominees and fast-tracking Trump’s. It was his biggest accomplishment — or most dastardly act, depending on one’s perspective. Still, Supreme Court nominees received most of the attention. McConnell’s refusal to even advance Merrick Garland as a Supreme Court nominee at a time when President Obama had nearly a year left in his presidency, and his advancement of Amy Coney Barrett a few days before the end of Trump’s term, were demonstrations of unabashed party politics. Stonewalling President Obama’s federal judicial nominees and advancing President Trump’s (some clearly unqualified), combined with the Garland/Barrett Supreme Court outcomes, made Democrats furious. They can make the argument that, were it not for “two-faced” Mitch’s manipulation of the Garland/Barrett battle, the current Supreme Court would be more liberal and more representative of the politics of the country, particularly given Chief Justice John Roberts’ sometimes moderating voice. 

So, a question is whether the Democrats are justified in attempting to “even the playing field” based upon current needs and past grievances. The even more important issue: Even if they could “pack the court,” should they? The U.S. Constitution does not limit the amount of justices on the Supreme Court, and that number may be changed by Congress.  In 1937, Roosevelt argued that the situation in the country was so critical that America needed to get beyond the obstructionism of the conservative leaning court, and a similar argument could be made today.  But do we want to live in a country where one party, having ascended to power and feeling aggrieved by the acts of the opposition, seeks to control the fate of America by altering the number of members on the third “coequal” branch?  How many times could this be done?  How many justices are too many:  15?  30?  40?

America has a history of changing party leadership every few years, and that is a good check and balance. Interference by the executive and/or legislative branches into the judiciary is not only inappropriate, but it constitutes overreaching that would make the judiciary less distinguished and, in the end, further compromise America. We can learn from history. In fact, Roosevelt’s own Vice President, John Nance Garner, opposed the court-packing plan. Henry F. Ashurst, then the Democratic chair of the Senate Judiciary Committee, refused to push the bill through his committee. The proposal died.

In recent times, the judiciary was significantly harmed by the decision in Bush v. Gore, in which all of the Republican-appointed Supreme Court Justices voted on Bush’s side and all of the Democrat-appointed justices voted on Gore’s side. In contrast, the virtually unanimous decisions from judges appointed by Trump or other presidents in respect to more than 60 challenges to our recent election represent a proud moment for the judiciary and for America. Before we let the events of today alter our future, it makes sense to not only contemplate the past but to listen to those who lived it.  After all, it was Louis D. Brandeis — perhaps the most revered liberal justice on the high court at the time — who warned: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

There are undoubtedly better ways than the ones recently used to move judicial nominations through the U.S. Senate. Political one-upmanship by Reid and McConnell has been harmful to our country. Reform is called for — packing the court is not.   

© 2021 Under Analysis LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer P.C. Contact Mark by e-mail at [email protected]