The Morning Call (Sunday)

Court-packing threat puts government at risk

- By Thomas Jipping Distribute­d by Tribune Content Agency LLC.

Political parties and candidates have different positions on issues, but should at least support the fundamenta­ls of our system of government. Sounds simple, right? So howdid court-packing become a serious topic for discussion this year?

Packing the federal courts would destroy not only the independen­ce of the judiciary, but also the unique way that the U.S. Senate has participat­ed in the legislativ­e process for more than 200 years. That’s why control of the Senate will determine whether these fundamenta­ls stay or go.

America’s founders believed that keeping the judiciary independen­t from political manipulati­on is “essential” for the kind of government they designed. In fact, in the Declaratio­n of Independen­ce, it’s listed among reasons we split from Great Britain. And it’s what makes our judiciary the envy of so many around the world.

One way that federal judges are independen­t is that they choose when to retire. Presidents cannot serve for more than 10 years (two years of an unexpired term, plus two full terms), while federal judges serve for an average of more than twice as long. Presidents can fill vacancies, but judges determine when those vacancies occur.

“Court-packing” means vacancies would suddenly occur when Congress creates new judicial positions that a president of the same party can immediatel­y fill. It would be like a hostile takeover of the judiciary, which would make it a tool of the political branches rather than maintainin­g its independen­ce from them.

Court-packing is not a new idea. In 1937, fresh from a landslide reelection, President Franklin D. Roosevelt proposed the same scheme. He thought it would sail through Congress since, after the 1936 election, Democrats had huge Senate and House majorities. But those Democrats resisted the temptation to manipulate the judiciary for political purposes.

Even the American Bar Associatio­n, which had surveyed lawyers across the country, opposed the idea. Testifying before the Senate Judiciary Committee in April 1937, the ABA said this threat to judicial independen­ce had drawn a stronger reaction than any issue since the Civil War.

Court-packing today, however, would destroy not only the independen­ce of the judiciary, but also the unique character of the Senate. While the House is designed for action and a simple majority can do whatever it chooses, the Senate is designed for deliberati­on. While a simple majority can pass a bill, Senate rules first require a supermajor­ity to end debate.

Both parties have used this to their advantage, preventing or improving legislatio­n along the way. It is literally the single most distinctiv­e feature of the Senate as a legislativ­e body. But it would have to be destroyed to enact a court-packing scheme today.

Democrats’ 80-16 majority in 1937 would have made ending debate easy. Today, however, court-packing legislatio­n would run headlong into a Senate filibuster. Passing that legislatio­n, therefore, would require changing Senate rules to grease the legislativ­e skids so that a simple majority could always get its way.

It’s easy to see a pattern here. The founders wanted to keep the judiciary independen­t from political manipulati­on; the left today wants to make the judiciary dependent. The founders wanted to make the Senate different from the House, with different terms and representa­tion. Extended debate has been the practice since the turn of the 19th century; the left today wants to make the Senate more like the House.

Court-packing today, therefore, puts not just one, but two branches of government at risk.

Our system of government provides the liberty we all enjoy. That happens by design, not by accident. Any elected official or candidate, regardless of party, who claims to believe in that system, therefore, should explicitly reject schemes that, like court-packing, would attack and permanentl­y undermine it.

Vague cliches or passing-the-buck evasions are not enough. Talk isn’t cheap, it’s free. If Congress could put principle over politics in 1937 when only one branch was at risk, we must be even more resolute today when two branches hang in the balance.

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