A number of readers have complained about a word in my latest Bloomberg column. The headline says that President Obama is trying to “pack” the D.C. Circuit, and the column itself refers to the widespread Republican claim that court-packing is what he’s doing. These readers protest that Obama is not doing what FDR tried to do: create new judgeships that he could fill. Rather, he is trying to fill existing vacancies.
I think usage has just moved on here. During the George W. Bush years, Democratic Senators Barbara Boxer, Pat Leahy, and Jack Reed all said that the president was trying to “pack the courts.” Bush too was just trying to fill vacancies. What the Democrats presumably meant was that he was trying to fill the courts with ideologically simpatico appointees. Republicans are using the phrase that way too. Whether it’s a good thing or a bad thing for a president to try to affect the make-up of the courts this way depends, in my view, on the merits of the legal philosophy they’re trying to promote–if that’s what they’re doing. If it’s just a matter of getting courts to rubber-stamp a president’s agenda, as several of the liberals I quote in the article suggest it is in the case of Obama, then it’s hard to defend. But anyway, the argument of the column doesn’t turn on the word “pack.”
Another word I used, though, was mistaken. I said that one of the vacancies on the D.C. Circuit that Obama is trying to fill arose because the Democrats had “filibustered” Bush’s nominee Peter Keisler. I shouldn’t have written that: They blocked an up-or-down vote by the Senate but they did not filibuster him. They did conduct an unprecedented set of filibusters against other Republican nominees. My point in referring to Keisler, and the Democrats’ larger pattern of conduct, still stands: There’s an argument for blocking up-or-down votes to kill nominations, and an argument against it; I don’t see any good argument for Republicans to let the Democrats keep vacancies open by using such tactics, and then to stand down when the Democrats get the chance to fill them.