Bench Memos

On “Packing” the D.C. Circuit

Supporters of President Obama’s reported sudden rush to fill three D.C. Circuit vacancies are ridiculing Senator Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, for criticizing Obama’s plan as a “type of court-packing reminiscent of FDR’s era.” But their ridicule is misguided and obscures the essence of Grassley’s charge.

In the National Journal, Norm Ornstein tells us that Grassley’s comment made him “laugh out loud” and left him

wondering whether a senior senator and longtime member of the Judiciary Committee really had no idea what court packing is, or was he reaching for new heights of disingenuousness: How could a move by a president simply to fill long-standing existing vacancies on federal courts be termed court packing?

Somehow I doubt that Ornstein had the same reaction when Democratic senator (and Judiciary Committee member) Chuck Schumer accused President George W. Bush of the “packing of the Court with yet another reliable extreme voice” upon Samuel Alito’s confirmation to an existing vacancy on the Supreme Court. Did Ornstein “laugh out loud” when Democratic senator Pat Leahy, then the ranking member of the committee (and now and before then its chairman) charged (in a September 7, 2004, statement) that the Bush administration was “committed to packing the courts with individuals who will shape the bench according to narrow ideological goals”?

As these two examples (drawn from a quick Nexis search) illustrate, the charge of court-packing, with, as Washington Post columnist Ruth Marcus puts it, “its sinister Rooseveltian overtones of a president maneuvering to game the system,” is a routine part of political discourse over judicial nominations. That, of course, doesn’t justify any particular use of the charge. But it does mean that it’s silly of Ornstein, Marcus, and others to attack Grassley merely because he is applying the term to Obama’s plan to fill existing vacancies.

Just as Roosevelt adopted his court-packing plan for the predominant purpose of obtaining judicial approval of his policy agenda, Grassley’s particular complaint was that the White House’s press on the D.C. Circuit is primarily motivated by its desire to obtain judicial approval of Obama’s policy agenda. (As I spelled out in three recent posts, there is no neutral principle that would justify the Obama administration’s sudden rush on the D.C. Circuit.) Grassley specifically cited a Washington Post report that explained the White House’s approach to D.C. Circuit nominations in these terms:

Giving liberals a greater say on the D.C. Circuit is important for Obama as he looks for ways to circumvent the Republican-led House and a polarized Senate on a number of policy fronts through executive order and other administrative procedures.

Obama’s own supporters cite Obama’s policy agenda to justify the rush. For example (from the New York Times):

“The court is critically important — the majority has made decisions that have frustrated the president’s agenda,” said Nan Aron, a liberal activist who has called for Mr. Obama to be more aggressive in nominating judges.

Further, Grassley has ample basis for accusing Obama of “maneuvering to game the system” (Marcus’s apt phrase for what “court packing” especially connotes). Just as Roosevelt sought to change the settled rules on the number of Supreme Court seats, Obama is working with Senate majority leader Harry Reid to change the settled rules on the availability of the filibuster for nominations. Obama’s rush on D.C. Circuit nominees serves that broader plan. From the NYT article:

Mr. Obama’s decision to make the nominations all at once is part of a broader strategy by Democrats to shine a spotlight on what they say is Republican obstruction in the Senate.…

With enough public pressure [over blocked nominations], some Democrats hope that they could change the Senate rules to prohibit filibusters on judicial nominations and in some other areas.

“A single blocked nomination may not generate much publicity, but by blocking so many nominees at once, the Republicans are overplaying their hand,” Senator Charles E. Schumer, Democrat of New York, told reporters on Thursday. “The other side must be careful. If they think they can win a debate over whether the Senate should change its rules, they might very well be mistaken.”


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