When it comes to court packing, Obama is no FDR

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Senators Ted Cruz and Mike Lee claim that President Obama is engaged in the nefarious business of “court packing.” They object that by nominating individuals to fill the three vacant positions on the federal circuit court for the District of Columbia, the president seeks to “pack” what is often called the second highest court in the land with judges favorable to his progressive agenda. It is a strange charge, if one understands “court packing” in the sense usually associated with President Franklin Delano Roosevelt.

Roosevelt, frustrated in his first term by a few supreme court decisions invalidating New Deal legislation, sought to increase the size of that court. His proposal would have allowed him to nominate a new justice for each sitting justice aged 70 years and six months, up to a maximum of 15 justices. Democrats and republicans alike found the proposal outrageous, as did some of FDR’s closest advisors. The plan was abandoned, but has lived on in infamy.

The idea of adjusting the size of federal courts or creating new courts as means of influencing future judicial decisions did not originate with FDR. Almost from the beginning, presidents and members of Congress sought to manipulate the courts for political advantage. The Judiciary Act of 1801 set a high standard for court packing. Thomas Jefferson had been elected president and the Federalists had lost control of congress. During the lame duck session before the new congress was convened and the new president sworn in, the number of circuit courts was increased from three to six allowing President Adams to appoint 16 new circuit judges. Adams also appointed 42 newly created federal justices of the peace, one of whom was William Marbury, a name familiar to every lawyer and law student in the country. The 1801 Act also reduced the size of the supreme court from six to five, thus denying President Jefferson the opportunity to appoint a new justice on the first retirement from the court – a sort of reverse court packing by making the available spaces fewer.

Although President Obama, like the Federalists and FDR before him, seeks to influence future judicial rulings by having people of his choosing in the life tenured federal judiciary, the means he has employed have no relation to historic court packing schemes.

Throughout U.S. history, and particularly since the nomination of Robert Bork to the Supreme Court, presidents have sought to appoint judges who share their political and constitutional philosophies, and the opposition has vigorously resisted. But appointing judges to existing vacancies is one of the few express constitutional responsibilities of the president, just as advice and consent is a constitutional responsibility of the senate. Politics will always play a role because the executive and legislative branches are political by nature.

The courts, however, are meant to be above or aside from politics, and to operate as a check on the political branches. Executive and legislative manipulation of the courts stemming from dissatisfaction over judicial enforcement of constitutional limits runs counter to the spirit, if not the letter, of the separation of powers. But filling judicial vacancies with people preferred by those in a position to nominate and consent only confirms that elections matter.

If the three nominees to the DC Circuit are confirmed by the senate, Republicans will have lost a political battle. The current 4-4 split of democrat and Republican appointees to the court would shift to 7-4 favoring democrats. But Democrats would likely pay a significant price for this short term gain. To confirm the three nominees, it appears that Democrats will have to employ the so-called “nuclear option” of changing senate rules and banning filibustering of judicial nominees. The time will come when a Republican president and a Republican majority in the senate will be able to return the favor.

There is no removing politics from the constitutional process for judicial appointments, so we are left to do our best at politics while hoping that most judges most of the time will take their constitutional oath more seriously than any political oaths they may have taken.

No doubt Republicans believe they gain political advantage with voters by calling Obama’s nominations to the DC Circuit a case of court packing. But such rhetoric is silly, if not misguided. Anyone who knows even a little about American history will find the claim implausible. Across the political spectrum, court packing of the variety entertained by FDR has long been a dishonored practice. If court packing is what Obama is up to, both sides will know that it is a time honored and constitutional tradition.