10.09.2020 5

Why Biden’s Threat to Pack the Supreme Court Matters

By Catherine Mortensen

After Joe Biden and Kamala Harris dodged debate questions about “packing the courts,”  Biden, when pressed further finally said, “You’ll know my opinion on court packing when the election is over.”

Biden is playing games with the American people on what could be the most consequential issue of the election and here is why this matters.

Presidents are constitutionally bound to fill vacancies on the courts including the Supreme Court which has been set to nine justices since 1869. It is expected that they will nominate judges who share their views on the constitution. Naturally, these presidential appointments can have far-reaching impacts on the nation.

What is not normal, expected, or natural is to “pack the court.” Packing the court is a different thing altogether. It is when a president attempts to increase the number of judges on any given court in order to get a desired political outcome.

“Packing the court” was coined by President Franklin D. Roosevelt, and was a slang term for the Judicial Procedures Reform Bill of 1937.

Roosevelt sought to reform the number of Supreme Court justices in an effort to obtain a favorable ruling for the New Deal legislation.

The central provision of the bill would have granted the president power to appoint an additional justice to the Supreme Court – up to a maximum of six – for every member of the court over the age of 70 years and six months.

Roosevelt’s bill went nowhere. The public and Congress rejected it, seeing it for what it was, a power grab. No president has ever tried it since. At least not with the Supreme Court.

However, during the Obama-Biden Administration, Senate Republicans accused the White House and Senate Democrats of trying to pack the U.S. Circuit Court of Appeals for the D.C. Circuit. This court is often referred to as the second highest court in the land because it hears important cases concerning the federal government.

In 2013, The 11-panel court had three vacancies which Obama sought to fill. But Republicans pointed out that the court did not handle enough cases to warrant 11 judges and sought to reduce the number to 9.

Republican leaders tried to make the case that “the most underworked appeals court in the country should not be manipulated by the president and his political allies to advance their agenda.”

According to an October 2013 Senate Republican Policy Committee memo, an unnamed D.C. Circuit Court Judge said, “I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. … If any more judges were added now, there wouldn’t be enough work to go around.”

That same memo noted, “Senate Democrats and their allies have been quite clear: they are pushing to make more appointments to the D.C. Circuit — not because they are needed, but because they want judges who will rubber-stamp the President’s agenda.”

Ultimately, the Obama-Biden Administration succeeded in appointing four judges to that court in which Democrats now hold sway.

This matters because the D.C. Circuit has sole responsibility for deciding cases having to do with the balance of powers of the branches of government and decisions made by government agencies affecting issues such as health care, national security, and energy development.

“In 2013, when Obama attempted to pack that court, his administration had a problem,” explained Rick Manning, president of Americans for Limited Government. “There were a number of disputes involving the power of the executive branch that were headed to the federal district court of appeals, and that court was philosophically evenly divided. Fearing that the courts would curtail their power, the Obama-Biden team schemed to add three left leaning judges to the district court of appeals. They sought to guarantee that the executive branch would win all legal challenges.”

The fact that Biden has been involved in what looks like court packing in the past, should concern every American.  If he is allowed back into the White House, and his party gains control of the Senate, he could very likely abolish the filibuster in order to push through a Roosevelt-type scheme to politicize and pack  the Supreme Court.

Catherine Mortensen is the Vice President of Communications at Americans for Limited Government.

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