New Dem talking point: Republicans packed the Court first

This is silly nonsense but even nonsense is preferable to their current talking point, that voters don’t deserve to know what Democrats will do with the Court next year.

When you don’t know what to say to a pressing question, you tu-quoque it. In a hyperpolarized country, that’ll usually suffice.

Yesterday Biden was pressed again about Court-packing and replied that that’s what the GOP’s doing now with Barrett and, furthermore, that it’s unconstitutional. Which, ah, no.

Jake Tapper politely reminded Biden’s spokesman this morning that “unconstitutional” doesn’t mean “stuff I don’t like.”

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Biden’s underlying point, that Republicans have engaged in something tantamount to Court-packing, is circulating more widely today. “Denying a vote on Merrick Garland for almost a full year while rushing in a nominee closer to a presidential election than ever before in American history would qualify as what if not ‘court packing’?” wondered Atlantic reporter Ron Brownstein. “Can we at least recognize that ‘Court Packing’ at all levels of the judiciary has been the Republican playbook for decades? Asking for Merrick Garland,” added Dan Rather.

Filling a vacancy isn’t “Court-packing.” You know it, I know it, Democrats know it, even Document Dan knows it deep down. But in fairness to Team Joe, as some are pointing out on Twitter this morning, Republicans have been too loose in throwing that term around in the past as well. Mike Lee and John Cornyn accused Obama of trying to “pack” the D.C. Circuit in 2013 by nominating judges to fill three vacancies; the GOP took the position, conveniently, that the court was too big relative to its workload and that those three seats should be cut. “Appointing judges to existing vacancies is not court-packing,” said a Brookings Institute scholar at the time in response. “It’s simply the way the system works.”

Indeed. The argument Democrats are trying to make here, very ineffectively, is about norms in filling court vacancies. “Court-packing” refers to expanding the number of seats on the Court in order to manufacture vacancies for a sitting president to fill. The current vacancy, by contrast, was created by the death of a sitting justice. It’s perfectly normal for the Senate to fill that, even if the timing of it is highly abnormal.

What Republicans are guilty of isn’t Court-packing, it’s Court-shrinking over the second half of the previous decade. The most famous example was blocking Merrick Garland in 2016, leaving SCOTUS with an eight-member panel for what turned out to be a full calendar year. There have been some breathtaking examples of hypocrisy among Senate Republicans lately in insisting that a nine-member Court is essential before Election Day when they sang a very different tune four years ago. Here’s a story that was published five days before Trump’s victory in 2016. With Clinton favored to win, some Republicans in the Senate were considering keeping Scalia’s seat vacant indefinitely rather than allow her to fill it.

Sen. John McCain was the first. Appearing on a conservative radio talk show, he said that if Clinton is elected, “I promise you that we will be united against any Supreme Court nominee [that] she would put up.” His press secretary quickly tried to backpedal, but McCain himself has not…

[Richard] Burr, in a tough re-election battle in North Carolina, said in a tape-recorded meeting with Republican volunteers last weekend, “If Hillary becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

As for [Ted] Cruz, he suggested there is nothing sacrosanct about having nine justices. For support, he pointed to a statement made by Justice Stephen Breyer during an interview in which Breyer noted that the court has historically functioned with as few as five or six justices.

Garland is the most well-known example of Republicans engaging in Court-shrinking because it involved a SCOTUS seat, but McConnell and his caucus also managed to successfully blockade many Obama appellate nominees for years — a gambit that paid off lavishly when Trump was elected and those lingering vacancies were finally filled by a Republican president. That was perfectly constitutional too, of course. Nothing in the law compels the Senate to consider a president’s nominee. If voters deemed it dirty pool, they could have punished the GOP at the ballot box by electing a Democratic president and Senate in 2016. They didn’t.

But that’s the procedural backdrop for why Democrats are accusing them of “Court-packing” today. The term is a misnomer for their actual, more meritorious complaint, which is that Republicans have been willing to use the constitutional tools at their disposal to change the size of various federal courts temporarily over the past six years when it suited their partisan political interests to do so. If Democrats win back total control of government next month, they’ll be in a position to do the same thing; it’s just that they’ll be adding justices instead of effectively subtracting them by refusing to fill vacancies on an undermanned federal bench. And if they do, that’ll be perfectly constitutional as well. (I’m imagining the next round of this fight circa February 2021. “We shrank the Court *temporarily* to advance our partisan agenda. They’re trying to expand it *permanently* to advance theirs. Big difference!”)

I don’t think they’ll do it, if only because they won’t have the votes even if progressives manage to force the question in Congress. But this is what happens when the fight for control of the judiciary turns so bitterly toxic that norms (“A sitting president should receive deference from the Senate in filling court vacancies, provided his nominees are qualified”) get replaced by raw power politics (“Why should a Senate controlled by one party allow a president from the other party to appoint anyone?”). We can blame Democrats for setting that transition in motion way back in the day with their demagoguery over Robert Bork and Miguel Estrada, or we can blame both parties for letting Congress grow so feeble institutionally that the partisan make-up of the judiciary, not the legislature, feels much more important to American governance in 2020. But we are where we are.

Here’s Ben Sasse laying into Democrats’ weaselly dodging over Court-packing in his own colorful way, and correctly noting that Dems would have to nuke two norms, not one, to add justices to SCOTUS. I made that point a few days ago myself. I doubt that the GOP’s focus on packing the Court over the final weeks will matter much on Election Day, as American voters never seem to care much about congressional process. But (a) Republicans don’t have many other cards to play right now and (b) Biden’s dodging on this subject has been so pitifully inept this past week that it makes sense to keep media attention on it. Voters won’t ultimately care about what he wants to do with the Court, but his weird insistence on dismissing legitimate questions about the subject as essentially none of the electorate’s business might annoy people.

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