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The GOP’s Absurd ‘Court Packing’ Claim

Politicians of every party shade the truth and frame issues in a dishonest manner sometimes, but sometimes the chutzpah of the Republicans is truly a wonder to behold. Like their latest inane talking point about Obama allegedly trying to engage in “court packing” by nominating judges for open positions on federal courts.

So what is court packing? The most obvious example comes from the 1930s, when FDR was frustrated by the Supreme Court striking down laws passed as part of his New Deal and proposed a law to increase the number of Supreme Court justices from 9 to 15, which would then allow him to appoint the six new judges and get the court to do what he wanted it to do. But now the Republicans are accusing Obama of doing this merely by nominating judges for an appeals court with several vacancies on it.

“I’m concerned about the caseload of this circuit and the efforts to pack it,” Grassley complained during a Senate Judiciary Committee hearing last week, charging the administration — six times — with court-packing. Of course, Grassley was quickly corrected by a colleague, who said that court-packing isn’t about filling existing vacancies.

Still, Grassley isn’t alone in making these charges. During floor remarks last week, Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of plotting with the White House “to pack the D.C. Circuit with appointees,” and Sen. Mike Lee (R-Utah) worried aloud that Democrats may “decide to play politics and seek — without any legitimate justification — to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.”

Even The Wall Street Journal piled on last week, arguing in an editorial that the D.C. Circuit “doesn’t need new judges to handle the workload” and filling those vacant seats would be akin to “packing the court for political ends.”

Steve Benen points out the obvious:

Is Obama planning a similar ploy? Not even a little. What we’re talking about here is an elected president sending qualified judicial nominees to the Senate for consideration. What Republicans are condemning is basic American governance — they hope to characterize Civics 101 as something abusive and offensive.

I hate to break this to Senate Republicans, but President Obama was elected — twice. Presidents submitting judicial nominations to the Senate to fill vacancies is pretty much the definition of normal presidential behavior. If the GOP finds this annoying, they’ll have to take it up with the Constitution.

In reality, there are currently 79 vacant seats on the federal bench, with 20 more that will come up soon as a result of pending retirements. 32 of those vacancies are on courts that have been designated as “judicial emergencies” by the Administrative Office of the U.S. Courts because they are so overburdened with cases and few judges to hear them. Part of the fault for that lies with Obama, who has failed to make enough nominations to fill those seats (there are currently 26 nominees that have been sent to the Senate Judiciary Committee for consideration, less than one-third of the total open seats).

But a good deal of that fault also lies with Senate Republicans, who have delayed and blocked one nominee after another to prevent them from getting a floor vote that they would undoubtedly win. Of the 26 current nominees, only 10 have received even a hearing before the Judiciary Committee. Five nominees have withdrawn their names after waiting as long as three years to even get a hearing, much less a vote on their nomination.

Not only is there no court packing scheme by Obama, there is a court unpacking scheme by Republicans, who have proposed legislation to reduce the number of judges on the DC Circuit Court of Appeals to eight. They argue that the DC Circuit handles fewer cases than other appeals courts, which is true, but those cases tend to be much more difficult and require far more work than the average case in another district.

Comments

  1. says

    Let’s not forget Harry Reid’s role in this mess. He has repeatedly backed down on any effort to curb the GOP’s abuse of the filibuster rules that have enabled the. To block so many nominees.

  2. John Hinkle says

    I don’t see a problem here. Republicans are just trying to stay true to their policy of smaller government.

  3. mvemjsun says

    I hope that all these republicans failing to do their jopbs just to make it hard on Obama cause the American public to elect lees of them next time. But concidering the bat shit crazy religous right and their unmerited hatred for Obama I doubt it.

  4. TxSkeptic says

    This is just standard fare for republicans. Projection politics is their game. Anytime they complain or accuse the democrats of something nefarious, chances are there are making a distraction to keep us from seeing what they are doing.

  5. Ben P says

    Part of the fault for that lies with Obama, who has failed to make enough nominations to fill those seats (there are currently 26 nominees that have been sent to the Senate Judiciary Committee for consideration, less than one-third of the total open seats).

    This, at least in a small part, traces back to the system as well. I know of at least two people who were approached about a potential nomination and indicated they’d be very hesitant to go through the process.

    When you think about, who tends to get nominations for Federal District Court Judges? A very solid majority of district court nominees are successful lawyers who have dabbled in politics enough to get known by the political establishment. Some are high ranking government lawyers and a few are state court judges.

    Federal District Judges earn $174,000 a year, a very nice salary, but most lawyers successful enough to be considered for the job earn quite a bit more. Indeed, although the practice is ridiculous in my opinion, for the past several years, major law firms in major cities (i.e. NY, LA, Chicago etc) paid brand new lawyers $160,000 a year. Further, judges have been at that salary level since 1989, they’re supposed to get 2% COL raises, but congress has withheld them about half the time. The two big perks are the title and the fact that your job is a life appointment. You’ve got it until you care to retire. (and most judges go on senior status and work part time well into their 70’s).

    But, to get the job, you have to put your private practice on hold for a year to 18 months, be prepared to take a number of trips to DC, and have republicans in congress nitpick every detail about your background, and usually go through public hearings. And if you’re deemed to controversial, or have any other serious flaws, you might still not get it.

  6. slc1 says

    Like their latest inane talking point about Obama allegedly trying to engage in “court packing” by nominating judges for open positions on federal courts.

    Let’s translate that from Rethuglicanese to language the rest of us can understand.

    Obama is trying to fill vacancies on various district and appeals courts with left wing pinko commie fascist Islamist atheist members of the Trilateral Commission, the Council on Foreign relations, the masons, the Bilderbergers, the Illuminati, and Skull and Bones.

  7. steve84 says

    They really need to find some way to divorce the judiciary from partisan politics. There is something wrong when judges are identified by their political affiliation.

  8. Ben P says

    Let’s not forget Harry Reid’s role in this mess. He has repeatedly backed down on any effort to curb the GOP’s abuse of the filibuster rules that have enabled the. To block so many nominees.

    This needs to be asked.

    Suppose ten years from now there’s exactly the mirror image of today. A republican president, and a senate with a very narrow republican majority, but a democratic house.

    The republican president consistently nominates people that you feel would be bad judges and would roll back existing law.

    Suppose now we’ve changed the rules on Judicial Nominees, and they can be passed with a bare 50 votes with no possible fillibuster. Are you going to roll over and accept it? or are you going to call for reinstating the fillibuster?

  9. matty1 says

    SLC1

    left wing pinko commie fascist Islamist atheist members of the Trilateral Commission, the Council on Foreign relations, the masons, the Bilderbergers, the Illuminati, and Skull and Bones.,/blockquote>

    Yet again the lizard people cruelly overlooked.

  10. says

    It has been my understanding that few qualified lawyers are willing to go through the nomination process. Bush II had a similar dearth, and his nominees would have sailed through with little problem. Add in the fact that Obama’s nominees are obstructed solely because they are his nominees, and you end up with a situation where the few people willing to go through the process do not want to put their careers on indefinite hold.

  11. abb3w says

    @0, Ed Brayton:

    But a good deal of that fault also lies with Senate Republicans, who have delayed and blocked one nominee after another to prevent them from getting a floor vote that they would undoubtedly win.

    Additionally, there’s apparently a tradition that senators are supposed to suggest candidates for federal courts covering their state, which some Senators have not been doing; thus making for another share of the fault going to the Senate.

  12. Larry says

    Several people have commented on Obama’s failure to nominate enough people to fill the open seats. While that may be true, you need to consider that the President typically asks senators in states with judicial vacancies to present a list of names from which he can choose candidates. However, in their maniacal pursuit to destroy government because they’re offended by having a black man in the Whitehouse, the GOP senators are acting like petulant children and are refusing to offer up names at all. This is a totally non-controversial way to obtain nominations that has been used for decades. Until now.

  13. says

    It won’t happen because I suspect the parties like things the way they are now, but it’s probably time for a constitutional amendment that says that, if the full Senate has not had an up-or-down vote on any nominee within 60 days, the nominee is in. That would also take care of the recess appointment problem.

  14. thebookofdave says

    @slc1 #6

    Obama is trying to fill vacancies on various district and appeals courts with left wing pinko commie fascist Islamist atheist members of the Trilateral Commission, the Council on Foreign relations, the masons, the Bilderbergers, the Illuminati, and Skull and Bones.

    What? No room for another Sharia judge? Or is he already prepared for the next phase of his plan?

  15. says

    Ben P:

    I’ve never been in favor of using the filibuster to block nominees, regardless of who is president. If the president nominates someone truly terrible, like say another Bork, then flaws should be discussed in an open forum and then given an up or down vote.

    So, the answer to you question is no, I would not want the democrats to filibuster a republican president’s nominees.

  16. Pierce R. Butler says

    Gregory in Seattle @ # 10: Bush II had a similar dearth…

    As did Clinton, as did Dubya Daddy, and quite a ways on back. Wm. Rehnquist made several pointed and public complaints about this when he served as Chief Justice, even in the times of St. Ronnie the Raygun, but neither end of Pennsylvania Ave did squat about it.

    I don’t even know where to look for an answer to this question, but: how long has it been since the federal judiciary was fully (say, >90%) populated? And – present partisan sabotage aside – why?

  17. says

    @BenP in 8:

    The republican president consistently nominates people that you feel would be bad judges and would roll back existing law.

    What makes you think this is about people Republicans feel would be bad judges? There have been several cases where nominations were filibustered, but once the filibuster was broken, they passed with 80 or 90 votes in favor. Sounds like it’s just about obstruction to me.

    Besides, if the Republicans (or, when the tables are turned, the Democrats) think the nominations are bad, they can still try and convince a sufficient number of the other party to join in a vote against the nomination, using reason and logic. You know, like they do in the many other countries that don’t have a filibuster, and yet somehow manage to not devolve into a tyranny of one party.

  18. slc1 says

    Re Pierce Butler @ #17

    I recall the late Chief Justice Warren Burger, who preceded Rehnquist, making the same complaint.

  19. baal says

    @John Hinkle are you being ironic? I can’t tell.

    The republicans 1) don’t the the courts, law, like fact, cuts against them. 2) have a relative advantage in the courts due and don’t want obama appointees on the courts notwithstanding point #1. This strikes me as on going rank (R) anarchist bull shit.

  20. thebookofdave says

    @slc1 #15

    Thanks for the correction.

    (note to self: coffee first, commenting later)

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