USA TODAY International Edition
Filling existing vacancies isn’t ‘ court packing’
Obama’s picks deserve a vote
Anyone familiar with the history of Depression- era America knows what “court packing” means. Frustrated that the Supreme Court was striking down some of his New Deal programs, President Frankin Roosevelt proposed adding six seats to the nine- member court, which he would fill with his own justices.
Even Roosevelt’s fellow Democrats in the Senate couldn’t stomach such obvious abuse, and in 1937 they overwhelmingly killed the plan.
Seventy- six years later, in an outbreak of Orwellian word- twisting, at least three leading Senate Republicans are accusing President Obama of trying to “pack” the nation’s second most important court, the federal Court of Appeals for the District of Columbia Circuit.
Obama’s supposed offense? This month, he nominated three people to fill open seats on the D. C. Circuit. Which is what presidents are supposed to do.
The ludicrous “court packing” charge — made by Sen. Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, and others who ought to know better — has provoked mostly bemused mockery. But Grassley and his fellow Republicans are deadly serious about using filibusters to block Obama’s nominees. Not because they’re unqualified in any way, but because the stakes at the D. C. Circuit are so high, and Republicans are determined to hang on to the advantage they have there.
The D. C. Circuit is important not just because it’s a springboard to the Supreme Court ( Ruth Bader Ginsburg, John Roberts, Antonin Scalia and Clarence Thomas all served there), but also because the court makes crucial decisions on federal regulations and a president’s powers.
With their court- packing argument drawing derision, Republicans now say they won’t approve Obama’s three nominees because the court’s workload — measured by the number of cases — is too light to justify them. That’s disingenuous because the unusually complex cases the D. C. Circuit hears give it one of the most challenging and time- consuming dockets of any circuit court.
But here’s the problem for Democrats: They made this same workload argument when they wanted to block President George W. Bush from filling vacant seats on the D. C. Circuit. Senators have simply switched sides: Republicans who now insist the court doesn’t need three more judges had no problem voting to confirm judges picked by a GOP president.
Enough already with the partisan tit- for- tat. The Constitution gives senators an advise- and- consent role, but that comes with two unwritten rules: Filibusters should be used only to stop nominees who are clearly unqualified or outside the broad judicial mainstream. And presidential elections should matter.
Democrats are so fed up with GOP stonewalling that they’re threatening, just as Republicans did when their roles were reversed in 2005, to change Senate rules to ban filibusters for judges, a move Republicans say would start a war.
A bipartisan group of 14 senators brokered a compromise in 2005 that reserved filibusters for “extraordinary circumstances.” The parties would be wise to do the same this year. Continuing warfare over judicial nominees will undermine the courts and drive Congress’ abysmal ratings even lower.