Former President Franklin Delano Roosevelt used his bully pulpit to try to pack the Supreme Court. He struck out, and in the 1938 midterm elections, his party lost 72 seats in the House of Representatives and seven seats in the Senate. As they say, history repeats itself.
Perhaps that’s why Speaker Nancy Pelosi poured cold water on the partisan bill introduced this week by House Judiciary Chairman Jerry Nadler. When asked about the court-packing bill, Pelosi said, “I don’t know that it’s a good idea or a bad idea.”
President Joe Biden knows.
In 1983, then-Sen. Biden called FDR’s court-packing effort “a bonehead idea.” I agree with the 46th president. It is a bonehead idea to pack the court. It’s a pure power grab that would incinerate public trust in our institutions of government.
Having served on the Senate Judiciary Committee since 1981 and as chairman for four of those years, I’ve spent decades in the trenches of judicial-confirmation warfare. I’ve participated in 16 Supreme Court confirmations and more than a thousand more to fill vacancies in the nation’s lower courts.
Advice and consent by the Senate to serve lifetime appointments in the federal judiciary give the people a constitutional check on those selected to interpret the law of the land. Doing so while respecting the independence of the federal judiciary helps preserve public confidence in our institutions of government. The Supreme Court is the final word on matters affecting the lives and livelihoods of people, from healthcare to taxes, abortion, gun control, privacy, and voting laws.
Unfortunately, bare-knuckle politics took over the confirmation process in 1987, when partisans succeeded in sabotaging Judge Robert Bork’s nomination with a well-orchestrated slander campaign against him. Since then, “Borking” a nominee made its way into the political playbook. Four years later, people watched confirmation proceedings turn into daytime soap operas. Then-Judge Clarence Thomas unflinchingly defended his reputation, calling allegations made against him a “high-tech lynching.”
More recently, Senate confirmation hearings for Justice Brett Kavanaugh devolved into an unprecedented attempted character assassination of a nominee to the high court. As then-chairman of the Senate Judiciary Committee, I refused to cave to the mob and carried out the committee’s responsibilities to vet the nominee thoroughly and fairly for a consequential lifetime appointment.
Emboldened by the 2020 elections and yet refusing to accept the reality about those of 2016, liberals have their sights set on restructuring the Supreme Court. Blinded by left-wing pressure to reshape the United States, they view a 6-3 conservative majority as standing in their way, so they want to pack the court while they can and add four justices to rubber-stamp their radical plans. To put in perspective how extreme their proposal is, consider the recent remarks of liberal Justice Stephen Breyer and the late Justice Ruth Bader Ginsburg against the idea of adding seats to the Supreme Court.
Think about what that means. With decades of constitutional scholarship and combined service on the federal judiciary, two liberal lions agreed that packing the court would politicize it and undermine its independence, impartiality, and integrity in the eyes of the people.
Scrapping the filibuster, packing the court, and hewing to an ideology that’s out of sync with most people is bad policy and an electoral mistake.
Chief Justice John Roberts recognized the importance of impartiality in his confirmation hearings in 2005. He said, “Judges and justices are servants of the law, not the other way around. Judges are like umpires.”
Unfortunately, partisan lawmakers are swinging for the fences to cement their radical agenda. Right now, the Democrats control the White House and have a white-knuckled grip in Congress, with a 50-50 split in the Senate and a razor-thin majority in the House. The progressives on the far Left are impatient. They realize they won’t get their way if centrists such as Sens. Joe Manchin and Kyrsten Sinema stand their ground. So they want to change the rules.
But in judicial politics, changing the rules to get what you want will backfire in the long run. Just ask former Sen. Harry Reid.
For now, Biden and Pelosi seem to have put court-packing on the back burner. However, a broader messaging campaign is weaving its way through academia, the states, and Congress to undermine the high court. Lawmakers this week stood in front of the Supreme Court, sending a blatant signal to the nine sitting justices. Across the land, scholars in their ivory towers are telling states to ignore rulings by the high court. Well-funded activists are greasing the wheels at the grassroots for poll-tested reforms such as “term limits” for federal judges. That’s three strikes chipping away at our independent judiciary.
Their power grab is way off base. Congress knows it. The president knows it. And more importantly, the people know it. Roberts would call that three strikes against an independent judiciary.