There is a common theme that I am noticing having watched the first two debates, and that is the issue of "court packing."

I find the framing of the question to be very interesting in the sense that it implies something improper on the part of trying to restore balance to our nation's court system. During the final two years of the Obama presidency, the Republican Senate only confirmed 20 judges leaving 89 vacancies including the infamous Merrick Garland nomination to the Supreme Court.

He didn't even get a hearing in committee much less a vote. Many of those same Republican senators have confirmed 181 of President Trump's nominees, including seven judges rated "not qualified" by the American Bar Association. I would suggest that the Republicans have packed the courts with radical partisans from the Federalist Society and that this is detrimental to the credibility of our court system and the principle of equal justice under the law.

I think that it is totally appropriate for the Democrats to look into the unpacking of our court system that has been carried out by Mitch McConnell and his fellow Republicans over the past six years. It would be a good thing to decrease the influence of justices and judges who were appointed based upon their commitment to party and ideology over the rule of law. Perhaps some restructuring of our court system, in order to achieve that goal, isn't such a bad idea.

(27) comments

phydeaux994

Any ethical Judge would not accept a Supreme Court nomination in this situation. Trumps demand after Justice Ginsburg’s death is so obviously unethical that any Judge accepting the nomination will be tainted forever. Trump nominated a Slam Dunk Justice and that’s what they will be judged as. If they dared to vote against Trump he would send the Boogaloo Bois after them. He’d love to figure out a way to do that to Chief Justice Roberts right now, for his “Traitor” votes. It is impossible to believe how low this corrupt man/child has taken our Country in 4 miserable years. Somebody needs to slap that smile off Vladimir Putin’s face.

Dwasserba

This Independent agrees.

Piedmontgardener

It's time to downshift the nuclear arms race on appointments. I'd submit that a 10 year constitutional term be imposed for all federal judges. These should not be lifetime appointments, it would improve the quality of the bench quite a bit if more citizen/lawyers became judges with the idea of serving the country and then returning to private citizenship.

NewMarketParent

@Piedmontgardener

I agree. If the idea of having lifelong appointments was to keep the bench apolitical, that little experiment has failed. Not only has it failed, but it has made the stakes even higher.

I don't see anything obvious wrong with this train of thought.

DickD

Absolutely right. If you are in power you get to pick your justices. Justicesare appointed for life and the Republicans have made this very political. It's only right if the Democrats control the Senate that they get to pack the Court as there's no limitations on the number of Justices.

bosco

And if the shoe was on the other foot, DickD, you'd be squealing like a pig stuck under a gate. Congress packing the court will destroy the system of checks and balances and make the SC an arm of whatever party is in power.

[ninja]

gabrielshorn2013

Yes, Dick, there is. The Judiciary Act of 1869. Congress established that the Supreme Court would consist of the chief justice and eight associate justices. FDR tried to overturn that law with the Judicial Procedures Reform Bill of 1937, and failed miserably. Many members of his own party did not support it.

https://en.wikipedia.org/wiki/Judiciary_Act_of_1869

https://en.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937#:~:text=The%20Judicial%20Procedures%20Reform%20Bill,that%20the%20Court%20had%20ruled

olefool

The SCOTUS was established to do one thing only; and that was to interpret the Constitution and apply all laws with blind justice. The politicizing of this body was the most demonic and anti American action ever undertaken. There is no blind justice any more, just bartered outcomes rendered by political operatives. James Madison must be rolling over in his grave.

threecents

This is not the way it used to be. Sure there were sometimes politically based delays in confirming appointments, but McConnell made an art form of putting politics into the courts by refusing votes on Obamas nominees, and now his rushing through of Trump's choice is just too obviously over the top. It almost forces Democrats to retaliate in kind and by "packing the courts". I hope Democrats don't take the bait though, as this "elections have consequences" bs excuse will just continue with each power switch. We need a functioning federal government - not just one side against the other. We Democrats need to remember that when we get the presidency and a majority in the Senate.

pdl603

Bradley, you are the epitome of a low info democrat swallower. Packing the court in this case is clearly referring to adding more justices to the supreme court. Unfortunately for you Bradley and The Party, Republicans control the presidency and senate which allows them to do what they are doing. As far as Merrick is concerned, the senate was in Republican control and they didn’t have to give him a hearing. Nothing in the senate rules or constitution says different. You don’t have to go back to far in history to find a similar democrat case. Obama’s first 2 years in office they did the same thing. So, what goes around comes around Bradley.

shiftless88

pdl; I am sure that you can point to the part of the Constitution that declares there shall be exactly nine (9) supreme court justices? Thank you.

gabrielshorn2013

Shiftless, that law may be found in the Judiciary Act of 1869, where Congress had established that the Supreme Court would consist of the chief justice and eight associate justices. FDR failed miserably when he tried it to overturn that law. So if "court packing" is OK, what would be the correct number? 10? 15? 100? Enough to get all of your political agenda through (as FDR tried to do)? Can every President simply add more seats to the Court to get that accomplished. Could the Supreme Court end up looking like the House of Representatives in size?

shiftless88

Laws change. I am talking about the Constitution. There are lots of laws that are voted out or struck down by the courts. I thought conservatives were all originalists so I was pointing out that this is perfectly acceptable under the Constitution.

shiftless88

And to answer your questions; the Congress can change the law if they have support to do so. Technically there is no upper bound, though at some point there will be sufficient push back to limit it.

gabrielshorn2013

Understood shiftless, and that is not what I am saying. The Democrats cannot simply "add more" to the Supreme Court bench. They must first repeal the the Judiciary Act of 1869, which will be no small feat. Do you believe that all Democrats agree with packing the court with more judges? FDR thought so too, and found out that he was very wrong. His bill went down in flames in the House, Senate, and had strong disapproval in the SC itself (see the reference above). They realized that by opening that Pandora's Box, there was no going back, and the Supreme Court would be permanently destabilized. Any President at any time (as long as they also held the Senate) could add more Justices that they believed would support their programs, hence my question to you. What would stop them? Not a thing. That is why the Court also follows stare decisis.

NewMarketParent

@shiftless88

I think that is the point. All it takes is a law. I don't understand why Conservatives would get up in arms about breaking norms. They obviously don't care about them and have been destroying them left and right for their embrace of 45. Conservatives have decided that norms are for suckers so their complaints about norm-breaking should fall on deaf ears.

Hayduke2

pdl - your rewriting of history doesn't make it correct. You are incorrect.

jsklinelga

Mr. Gray,

As a very distinguished gentleman offered recently: You are entitled to your opinion but not entitled to change the facts A WaPo opinion piece by Marc A. Thiessen, July 6, 2018, entitled "Democrats have only themselves to blame for their judicial predicament". tells the true story well.

The political chicanery employed by the Democrats since the 1990's to "pack" the courts has not only thrust aside long held traditions and all but destroyed civility and decorum in the process of judicial nominations, it has led to the judicial activism that has torn our country apart.

I am not overjoyed personally by the current proceedings but I certainly do not misplace the blame by putting on historical blinders/ One of the foremost lessons we are taught as children is not to follow the bad lead of others. But when continually confronted with the dishonesty and duplicity of the party of HRC, Pelosi, Schiff, Schumer and Biden it is hard to not to attack back. Especially with our children's future at stake.

shiftless88

jsk; I read that article and I will respond here. This is the equivalent of "my friends made me do it" as an excuse. Nothing "forced" Mitch to do what he has done. He chose to. And if the Dems sweep the Senate and presidency and proceed to add three SCOTUS judges will you shrug your shoulder and say "Mitch made them do it so no worries"?

2Girls

jsk, you actually make the same point as the author of the letter. The very first appellate court nominee to be filibustered was Miguel Estrada who had not had any prior judicial experience at the local, state, or federal level but was a member of The Federalist Society. President George W. Bush started the practice of placing ideologues on the federal bench and the Democrats rose up to try and stop it.

2Girls

jsk, some additional facts for you to consider before you blindly accept Theissen's point of view. There were only 68 presidential judicial nominees ever blocked before President Obama took office, and 79 during President Obama's first five years in office up to November 2013. That's right. There were more nominations blocked by Republicans under President Obama than had occurred up to that point in our country's history. That's when then-Democratic Senate Leader Harry Reid decided to go nuclear and remove the filibuster-proof 60-vote requirement to fill lower court vacancies. McConnell swore revenge, and none of President Obama's seven circuit court nominees during his final two years got through the Republican-led Senate.

Now, compare that with 17 circuit judges approved for Reagan in his last two years with the Democratic Senate, 16 for Clinton, and 10 for George W. Bush. I don't think both sides are to blame here.

NewMarketParent

@jsklinelga

You don't get to break norms and then cry when the other side decides to do the same. They were there for a reason, but don't expect the other side to play by a set of imaginary rules that you lit on fire.

knahs25

And there should be term limits on judges - these should not be lifetime jobs.

threecents

Yup, 20 years. Trump deliberately nominated a young person.

Hayduke2

knah - spot on. And let's add term limits to Congress too.

threecents

Neither Biden nor Trump will make a serious effort with campaign finance reform, which is one reason I supported Bernie.

NewMarketParent

@threecents

We need to force Congress to do it. I agree that it needs to be driven by the President, but we should push Congress to do it as well.

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