Politicians of every party shade the truth and frame issues in a dishonest manner sometimes, but sometimes the chutzpah of the Republicans is truly a wonder to behold. Like their latest inane talking point about Obama allegedly trying to engage in “court packing” by nominating judges for open positions on federal courts.
So what is court packing? The most obvious example comes from the 1930s, when FDR was frustrated by the Supreme Court striking down laws passed as part of his New Deal and proposed a law to increase the number of Supreme Court justices from 9 to 15, which would then allow him to appoint the six new judges and get the court to do what he wanted it to do. But now the Republicans are accusing Obama of doing this merely by nominating judges for an appeals court with several vacancies on it.
“I’m concerned about the caseload of this circuit and the efforts to pack it,” Grassley complained during a Senate Judiciary Committee hearing last week, charging the administration — six times — with court-packing. Of course, Grassley was quickly corrected by a colleague, who said that court-packing isn’t about filling existing vacancies.
Still, Grassley isn’t alone in making these charges. During floor remarks last week, Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of plotting with the White House “to pack the D.C. Circuit with appointees,” and Sen. Mike Lee (R-Utah) worried aloud that Democrats may “decide to play politics and seek — without any legitimate justification — to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.”
Even The Wall Street Journal piled on last week, arguing in an editorial that the D.C. Circuit “doesn’t need new judges to handle the workload” and filling those vacant seats would be akin to “packing the court for political ends.”
Is Obama planning a similar ploy? Not even a little. What we’re talking about here is an elected president sending qualified judicial nominees to the Senate for consideration. What Republicans are condemning is basic American governance — they hope to characterize Civics 101 as something abusive and offensive.
I hate to break this to Senate Republicans, but President Obama was elected — twice. Presidents submitting judicial nominations to the Senate to fill vacancies is pretty much the definition of normal presidential behavior. If the GOP finds this annoying, they’ll have to take it up with the Constitution.
In reality, there are currently 79 vacant seats on the federal bench, with 20 more that will come up soon as a result of pending retirements. 32 of those vacancies are on courts that have been designated as “judicial emergencies” by the Administrative Office of the U.S. Courts because they are so overburdened with cases and few judges to hear them. Part of the fault for that lies with Obama, who has failed to make enough nominations to fill those seats (there are currently 26 nominees that have been sent to the Senate Judiciary Committee for consideration, less than one-third of the total open seats).
But a good deal of that fault also lies with Senate Republicans, who have delayed and blocked one nominee after another to prevent them from getting a floor vote that they would undoubtedly win. Of the 26 current nominees, only 10 have received even a hearing before the Judiciary Committee. Five nominees have withdrawn their names after waiting as long as three years to even get a hearing, much less a vote on their nomination.
Not only is there no court packing scheme by Obama, there is a court unpacking scheme by Republicans, who have proposed legislation to reduce the number of judges on the DC Circuit Court of Appeals to eight. They argue that the DC Circuit handles fewer cases than other appeals courts, which is true, but those cases tend to be much more difficult and require far more work than the average case in another district.