10.13.2020 0

Why won’t Joe just say ‘no’ to court packing

By Catherine Mortensen

As Joe Biden continues to duck, dodge, and weave on the question of packing the Supreme Court, an elected official in his own party is calling court packing a “dangerous proposal.” Biden said the American people will have to wait until after the election to know what he thinks of court packing.  He’s already getting pushback from within his own party. Democratic Congressman Collin Peterson (D-Minn.) has introduced a bi-partisan resolution to permanently set the number of U.S. Supreme Court Justices at nine.  Peterson’s resolution is the first step toward protecting the highest court in the land from political corruption that Biden’s far-left base is calling for.

The resolution to amend the Constitution simply states: “The Supreme Court of the United States shall be composed of nine justices.”

“The Supreme Court is an important part of our country’s system of checks and balances, and it is vital that we preserve its independence,” said Peterson. “I worry that partisan attempts to change the size of the court will set off a judicial arms race which will further divide our country. If one party succeeds in packing the court, the next party to hold a majority may choose to do the same in retaliation. My amendment will preserve the integrity of the court and permanently protect Americans from these dangerous proposals.”

Congressman Denver Riggleman (R-Va.) co-sponsored the resolution, noting that “the independence and non-partisan nature of the Supreme Court of the United States is a core aspect of American government.”

Currently, the number of supreme court justices is set by congress through statute. Lawmakers have changed the number of justices several times throughout the nation’s history, and last modified the size of the court in 1869 when congress raised the number of justices from seven to nine.

“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. Or even threatened it. Until now.

According to Carrie Severino, president of the Judicial Crisis Network, Biden wants to “replace our current Supreme Court with a liberal super-legislature, stacked with politicians-turned-judges in the mold of AOC, Nancy Pelosi, Bernie Sanders and Elizabeth Warren. All with lifetime appointments, rewriting the law and Constitution.”

Roman Buehler, director of Keep Nine, a coalition of legal scholars dedicated to protecting the Supreme Court from politicization says Biden’s failure to reject court packing is troublesome.

“It’s clear that court packing is a direct assault on the constitutional checks and balances that this county has depended on for more than 150 year,” he said. Buehler explained that for the first 80 years of the court’s history, there was “political manipulation of the court by both parties.” After the Civil War, he said a tradition grew up that the court ought to be independent and serve as a “critical check on the abuse of federal power.

“Today some very short-sided people are trying to do what Roosevelt tried and failed to do. If they succeed in packing the court, they will undermine the independence of the court by the rule of law.”

Curiously,  and contrary to the facts, Sen. Chris Coons (D-Del.)is claiming that confirming Judge Amy Coney Barrett to the Supreme Court “constitutes court-packing.”

President Trump exercising his power to fill the Ginsburg vacancy on the Supreme Court with Judge Barrett is not court-packing, it is fulfilling constitutional duty. Under Article II, Section 2, the president is to “nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court…” Court-packing, as every American history student in high school should learn, is an illegitimate attempt to increase the number of Supreme Court justices in order to have those justices rule in favor of unconstitutional laws, regulations and actions.

“Republicans won the Senate election in 2014, and the White House in 2016, and elections have consequences,” said Rick Manning, president of Americans for Limited Government. ”Presidents don’t serve for three years. They serve for four years. In 2016, when the Scalia seat became vacant, former President Barack Obama wasted no time in exercising his constitutional authority to attempt to fill it with Merrick Garland even though it was his last year in office, just as the Republican Senate exercised its right to just say no. Now the Senate is considering the Barrett nomination, as is their prerogative under the Constitution. It cannot be emphasized enough that filling a vacancy is legitimate, while creating vacancies for political purposes would do violence to the independence of federal courts.”

Biden won’t just say “no” to court packing because he fears it will alienate his far-left base. But his dance around the issue has already alienated at least one Democratic Member of Congress. We’ll have to “wait until after the election” to find out how many independent voters he’s alienated.

Catherine Mortensen is vice president of communications for Americans for Limited Government.

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