No, Obama Isn't Trying to "Pack the Court"

Like a not very bright seven-year-old with a shiny new toy, the National Review has found an inane talking point to run into the ground. "Republican AGs vs. Obama’s Court-Packing Plan" announces one headline. "House Testimony on D.C. Circuit Court-Packing Plan" says another. Then there's the straight-the-point "No Court Packing." The sheer dumbness of the argument hasn't stopped it from appearing in columns with the byline of members of the United States Senate, also published in a journal that may stand athwart history even if it has little comprehension of it:

It is one of the most important battles raging in Washington, a fight that will have far-reaching consequences for everything from health care and the regulatory state to gun rights and the war on terrorism. Yet most Americans have heard nothing about it.

I’m talking about Democratic efforts to pack the U.S. Court of Appeals for the D.C. Circuit.

What conservatives are whining about, of course, is the Constitution. President Obama is using his constitutional powers to nominate judges to fill vacancies in existing courts, and Senate majorities are exercising their power to confirm them. This includes nominating three perfectly mainstream judges to fill existing vacancies in the powerful D.C. Circuit. What a terrifying threat to the republic!

As we've discussed before, "court packing" is a term with an actual historical meaning, which the Republican obstructionists invert. The term refers to FDR's legislative proposal to add up to six new members to the Supreme Court (one for each member over 70 and a half.) While perfectly legal—the size of the Supreme Court isn't fixed by Article III but is left to Congress to determine—the plan threatened norms of judicial independence and was rejected by the overwhelmingly Democratic Senate. Nobody believed, however, that it was "court-packing" when FDR simply filled judicial vacancies with judges who represented his constitutional values. This would be idiotic.

The attempts to defend this indefensible premise consist of almost comically transparent bad faith. Ammon Simon, for example, argues that changing the even partisan split of the Court would "undercut collegiality on the D.C. Circuit." I'll take this argument seriously as soon as Republicans start urging Samuel Alito to resign from the Supreme Court so that its sacred collegiality will stop being destroyed by Republican dominance.

But the Republican desperation is understandable. As the recent government shutdown vividly reminded us, a core operating principle of the contemporary Republican Party is that unless it can be completely controlled by reactionary Republicans, the federal government should disintegrate in entropy. Conservatives on the D.C. Circuit have played a major part in this war on a workable legislative process, most notably by ignoring roughly 150 years of settled bipartisan practice and effectively reading the president's recess appointment power out of the Constitution. As poor as the opinion was as a legal argument, it was a massive favor to Republican obstructionists, who would love to leave the president without the ability to staff many executive-branch positions that fulfill functions Republicans don't like (such as protecting consumers.)

The fight over Obama's attempt to fill three D.C. Circuit vacancies threatens Republican-created dysfunctionality in another way. Let's return to John Conryn's silly "court-packing" argument:

Not only is Senator Reid attempting to pack the court with judicial liberals, he is threatening to use the so-called nuclear option unless Republicans cooperate. In simple terms: Democrats are prepared to violate Senate rules they have publicly supported in order to “flip” the D.C. Circuit and help the Obama administration impose its agenda. If these tactics succeed, the Senate will be weakened as an institution, and the nation’s “second-highest court” (to quote the president) will be transformed into a far more ideological judicial body.

As for Cornyn's procedural claim, I would like to respond by citing ... John Cornyn, who argued when advocating for quashing the filibuster during the Bush administration (judicial appointments, it seems, were slow to be confirmed) that "we shouldn’t call it the nuclear option—we should call it the majority-rule option." The idea that the court is only "ideological" if it isn't dominated by Republican ideologues like Janice Rogers "the Constitution enacted Ms. Ayn Rand's Atlas Shrugged" Brown is even more unserious.

Perhaps the most telling of Cornyn's bad arguments is his intimation that there's something sinister about a president who has been elected twice "imposing his agenda." Cornyn may not like it, but in a democracy, elections matter. If Republicans want the D.C. Circuit to have a majority of judges with a neoconfederate conception of federal power, they need to win more presidential and Senate elections. 

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