No to court packing
When Franklin Roosevelt tried to “pack” the Supreme Court in 1937, that is, expand its membership so he could bend its membership toward the New Deal and its majority ideology toward the Democratic Party, he was shut down.
The plan was to add a new justice each time a justice reached 70 and failed to retire. It would have meant six new justices.
Roosevelt was understandably frustrated with the court knocking down one New Deal reform after another.
But the court packing plan set off a firestorm. Not only the sitting justices and the Congress but the newspapers and the attentive public all let FDR know, in no uncertain terms, that he had overstepped his bounds.
It was a rare political miscalculation for a master politician.
President Joseph Biden, who is a student of history, and of FDR, should learn from the mistake.
Mr. Biden is turning out to be a pretty good politician himself, and is on a roll right now. He should drop any notion of a new court packing scheme, for it is a political as well as a moral and conceptual blunder.
The political error is that it will be widely seen, as it was in FDR’s case, as a power grab and presidential overreach.
The moral and conceptual error is not constitutional. Nothing in the Constitution prevents the court from being smaller, which it once was (six) or larger.
What’s wrong, and it is an affliction of both parties, is changing the rules when you don’t get the result you want: We lost, so change the voting rules.
Both parties have sore losers who claimed they did not lose an election but that the election was stolen – Stacey Abrams and Donald Trump.
Now both parties want to rewrite election rules to partisan advantage — not to protect or expand the franchise but to protect their hold on office and expand their voter base.
Court packing is more of the same: Donald Trump got lucky with Supreme Court openings and Mitch McConnell was powerful and shameless enough to block one Obama nominee for the high court and push a third Trump nominee through at the 11th hour.
So now the right has the advantage on the court and the Democrats want a do over. They lost, so change the system.
That’s not honorable, logical or politically smart, because what goes around, comes around.
Imagine how the Democrats would have howled if Mr. Trump had tried to pack the court.
Now, hypocrisy abounds in politics, always, especially in Washington. Mr. McConnell was against lame duck presidents making high court appointments before he was for them.
When Roosevelt tried to pack the court he was coming off a landslide re-election. He had a mandate. The Democrats today do not.
And all the fine legal “originalists” in the GOP thought it was just fine when the Supreme Court imposed itself into a presidential election, and ended it, with no constitutional authority to do so.
When Mr. McConnell and the Democrats debate the rules of the game, be it nominations, or the rules of the Senate, be assured that it is not about the administration of law or the customs and honor of the Senate – which is what the debate should be about. Both sides are concerned with raw power and nothing but raw power.
There is no evidence whatsoever that a larger court would be a better court. Or that McConnell’s bastardized filibuster well serves the Senate.
Court packing is a power grab, pure and simple.
And Mitch McConnell is no conservative and no custodian of the Senate, like Robert Taft or Mike Mansfield. He has diminished the Senate.
As for the Democrats, they are playing with fire. There is no popular support for adding justices. And their own hold on Congress is precarious.
When Roosevelt tried to pack the court he was coming off a landslide re-election. He had a mandate. The Democrats today do not.
Nonetheless, the president has now appointed a commission (of three dozen, inexplicably) to “provide an analysis of the principle arguments in the contemporary debate for and against Supreme Court reform.” It includes conservatives, as he promised it would. He should instruct them that court packing is off the table, so the commission can look at other, better, ideas, like term limits for the justices, followed by senior status and service in the lower courts if they so choose. This is not prohibited by Article III of the Constitution.
The other thing he should do is be patient. The wheel will turn again and Democrats will get the upper hand on the court once more. Mr. Obama got two picks and if he had fought for his third nominee, or held on to the Democratic majority in the Senate, he would have done as well as Mr. Trump at shaping the court.
Things are not so far out of order. They will be if we start tinkering with the system, a system that has served us well since 1788, to satisfy a momentary demand of one faction.