Say Again? Who’s Packing the Courts?
After majority leader Mitch McConnell rammed Amy Coney Barrett’s nomination through the Senate only eight days before the 2020 election, Senator Ed Markey (D. MA) declared, “When Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.” Minority Leader Chuck Schumer (D. NY): “You may win this vote, and Amy Coney Barrett may become the next associate justice of the Supreme Court. But you will never, never get your credibility back. And the next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority. . . . I know you think this will eventually blow over. But you’re wrong. . . . Nothing is off the table”
End the filibuster and rebalance the Court? Republicans senators went hyperbolic. Josh Hawley (R. MO) charged, “Democrats are burning down the Constitution,” the same Josh Hawley who was the first U.S. senator to oppose the certification of Joe Biden’s Electoral College victory. On Fox News Sunday, Ben Sasse (R. NE) called it a “partisan suicide bombing of two branches of government.”
Puhleeze. This is Karl Rove hardball tactic No. 3, accuse your opponent of the very mischief you are doing. It was Mitch McConnell’s Republican-controlled Senate who in 2017 eliminated the filibuster and the 60% supermajority required to end debate on Supreme Court nominations, which is why Barrett was the first justice since Edwin Stanton in 1869 confirmed, 52 – 48, without a single vote from the minority party, and why in 2018 Brett Kavanaugh squeaked by 50 – 48, the closest margin in Senate history, with only one Democrat, Joseph Manchin (D. WV), voting to confirm.
But McConnell refused to even hold hearings on his nomination, much less let it go to the Senate floor for a vote, because, he said, it was “too close to the election.” His rationale: “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction.” Actually, they had already spoken; in 2012, Obama defeated Mitt Romney by more than 5 million votes.
For McConnell, it wasn’t about the will of the people, just strong arm politics. He would later brag, “One of my proudest moments was when I looked Barack Obama in the eye and said, ‘Mr. President, you will not fill a Supreme Court vacancy.”
Eleven days after Trump entered the White House, he nominated Neil Gorsuch, and on April 7, McConnell’s Republicans – and three Democrats – confirmed. Scalia had been dead and the Court deadlocked 4 – 4 for almost 14 months, and McConnell said later that if Hillary Clinton won the White House, he would hold the seat open for another four years. Since going on the Court, Gorsuch has voted with Clarence Thomas 100% of the time.
McConnell got a second chance to stack the Court when Associate Justice Anthony Kennedy announced his retirement effective July 31, 2018, the culmination of a carefully orchestrated 17-month campaign by Trump and McConnell to convince Kennedy to retire so that they could appoint someone who, unlike Kennedy, would vote to roll back Roe v. Wade, and someone much younger who could cement a conservative majority for decades to come. Republicans made no bones about it. Senator Grassley, chair of the Senate Judiciary Committee, went on conservative commentator Hugh Hewitt’s radio show to implore aging judges, “If you’re thinking about quitting this year, do it yesterday.”
Trump sealed the deal for Kennedy’s retirement when he nominated Gorsuch, who had been one of Kennedy’s clerks, to fill Scalia’s seat, and floated the name of Brett Kavanaugh, another former Kennedy clerk, as one of the leading candidates on deck to take Kennedy’s seat when he stepped down. Indeed, while Kennedy was still hearing cases, Trump nominated Kavanaugh and McConnell pushed him through to confirmation on October 7, just in time for the start of the Court’s fall term.
For most of his tenure, Kennedy, a Reagan appointee, had been a genuine swing vote, conservative on business regulation, campaign finance and voting cases, but leaning center-left on reproductive freedom, same-sex marriage and the death penalty. Kavanaugh’s appointment shifted the Court hard right, leaving only Chief Justice John Roberts, not exactly a centrist, to occasionally push back against the extreme views of the Thomas, Alito, Gorsuch, Kavanaugh bloc.
And now Barrett. One nexus between her, Gorsuch and Kavanaugh is that in 2000 all three were Republican Party lawyers on the Bush v. Gore recount in Florida. Can they really be expected to be impartial jurists on future election cases? Another common thread, and this one includes Thomas, Roberts, Samuel Alito and the now deceased Antonin Scalia, as well as 44 of Trump’s 53 appellate court choices, is membership in the Federalist Society.
Under Leonard Leo – one commentator called him a “Trump subcontractor” – the Federalist Society has become a “proxy for adherence to conservative ideology” [Devins and Baum, How Party Polarization Turned the Supreme Court into a Partisan Court], and “de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.” [Amanda Hollis-Brusky, The Federalist Society and the Conservative Counterrevolution].
Founded in 1982, it is funded by contributions, laundered through its opaque Donor Trust, from the Koch Brothers, the Lynde & Harry Bradley and Richard Scaife foundations, the Mercer family and other far right-wing entities. As a tax exempt 501(c)(3) organization, the Federalist Society may not represent clients in cases, submit amicus briefs or engage in political campaigns, but its taxable arm, the Judicial Crisis Network, can and does. Financed by the same pool of dark money, JCN spent $7 million dollars on campaigns to block Merrick Garland from getting a hearing on his nomination to the Supreme Court and $10 million more to support confirmation of the Gorsuch nomination that followed. And that’s just for one justice.
When asked, May 28, 2019, at a Paducah Chamber of Commerce luncheon, what he would do if a Supreme Court seat came open in 2020, McConnell smirked, “Oh, we’d fill it,” as the room erupted in laughter.
So after Ruth Bader Ginsburg died on September 18, no one should have been surprised when, just one week later with voters already casting ballots and election day just seven weeks off, Trump nominated Amy Coney Barrett – “I’ve been saving her for Ginsberg” – and McConnell immediately teed up her confirmation hearing. Doing a 180 on his 2016 “no confirmation in an election year” line in the sand on Merrick Garland, McConnell rationalized, “This is different, now the Senate and the President are from the same party.” Translation: “We’re in power and can do whatever we want.”
And McConnell couldn’t resist pointing out that, unlike the 2017 GOP tax cuts which can be repealed, Article III federal judgeships are permanent. “What can’t be undone,” he said with more than a hint of self-satisfaction, “is a lifetime appointment.”
Back on October 3, 2018, Senator Lindsey Graham [R. SC] declared, “I will tell you this: If an opening comes in the last year of President Trump’s term, . . . we will wait until after the election. . . . Instead of a lame duck president and Senate nominating and confirming, a new president and Senate – elected by the people only a few months from now – should make that important decision. . . . In the politicized atmosphere of an election year, you probably shouldn’t even nominate someone. . . . It’s not fair to the nominee, it’s not fair to the court.” No, it’s not. But Graham – spineless as always – was one of 52 Republicans who voted on a straight party line to confirm Barrett just eight days before the election.
And Mitch was not just stealing – no other way to put it – two, if not three, Supreme Court appointments, he has been stacking the federal judiciary top to bottom with right wing judges, first by blocking Obama nominees and then methodically and relentlessly pushing every single Trump nominee through lickety-split, twice even when the Senate was in recess. A judicial heist in broad daylight.
On December 13, 2019, Fox host Sean Hannity told McConnell that he was “shocked” that the Obama administration “left so many vacancies and didn’t try to fill those positions.” McConnell laughed, “I’ll tell you why, I was in charge of what we did the last two years of his administration,” confirming only 28.6% of Obama’s nominees, the fewest in a half-century, and only two appellate judges among them. When Obama left office, McConnell was holding 110 judgeships open.
The scale, speed and audacity of McConnell’s court stacking is mindboggling. More than 600 judges sit on federal district courts, almost 200 on the 13 courts of appeals, plus the nine justices on the Supreme Court, just over 800 in all. Of these, McConnell’s Republican-controlled Senate has confirmed 143 district court judges, 53 appeals court judges and three Supreme Court justices nominated by Donald Trump, 199 in all, roughly 25% of the 800 total. Thanks to Mitch McConnell, Trump has had more of his appeals court nominations, 53, confirmed in less than three and a half years than Barak Obama did, 52, in his entire eight-year, two-term presidency. Not incidentally, of Trump’s 53 confirmed appeals court judges, not one is Black, only 11 are women, 36 are white men.
To speed up the confirmation process, Republicans ended the century-old tradition, a senatorial courtesy, of Judiciary Committee action on a nominee only after both home state senators – the state where the federal district court is located – returned thumbs-up “blue slips.” And stopped working with the American Bar Association to determine whether nominees were well-qualified to be judges, because in their eyes the ABA – which had rated six Trump nominees “not qualified” – was “too liberal,” a notion sure to whiplash anyone who has ever attended the ABA’s annual convention. Over the last two years of the 116th Congress, judicial nominations made up 25% of Senate floor votes, which makes one ask, did Senate Republicans have any priorities other than court-packing?
And McConnell isn’t done. As of October 30, 2020, there are 61 federal court vacancies, for which Trump has 36 nominations pending, 13 waiting for floor votes and 23 for hearings. If McConnell pushes all 36 through between now and inauguration day, Trump’s total will be 235, almost 30% of all federal judges. As he told Hugh Hewitt last January, “My motto is leave no vacancy behind.”
And even as Republicans were gnashing their teeth about the spectre of Democrats packing the Supreme Court, they were trying to do exactly that to state supreme courts. According to Duke law professor Marin Levy, author of Packing and Unpacking State Courts, “If court packing and unpacking [eliminating judicial positions] were considered strictly verboten, one would not expect to see over 20 different bills to pack and unpack the highest court in 11 different states,” all but one by Republican-controlled legislatures, with two, in Georgia and Arizona, successful.
During her nomination hearing, Barrett said “The Constitution has the meaning that it had at the time it was ratified.” By that test, court packing has an impeccable founding fathers pedigree.
Under the Constitution, Congress determines the number of justices, and George Washington signed the Judiciary Act of 1789 setting the number at six. After they lost the 1800 election, John Adams and a lame-duck Federalist Congress shrank the size of the Court from six to five and doubled the number of district judges – known as the “midnight judges” for the hour of their confirmation – before Thomas Jefferson became president. But two can play that game. Jefferson and his Republican allies in Congress promptly impeached Justice Samuel “Old Bacon Face” Chase, whom Adams had put on the Court, added a sixth justice, and then in 1807 a seventh. In 1837, Andrew Jackson added two more, from Tennessee and Alabama, which is the first time the Court got to 9. But it wouldn’t stay at that number.
In Dred Scott v. Stanford (1857), the Supreme Court, in an opinion by Chief Justice Roger Taney, ruled that people of African descent, whether living in free or slave states, were the property of slave owners and not United States citizens. This put the Court in the crosshairs of Lincoln and the Republican Congress, which in 1862 consolidated five circuits in the slaveholding states to two, diluting their influence, and the following year added a 10th justice, Stephen J. Field of California, a pro-Union Democrat nominated by Lincoln. The reshaped Court then voted 5 – 4 to uphold Lincoln’s blockade of southern ports.
In 1866, a year after Lincoln’s assassination, the Republicans reduced the number of justices to seven to prevent his successor, Andrew Johnson, a southerner with strong states rights views, from appointing any new justices. And just three years later, when they took back the White House with Ulysses S. Grant, Republicans promptly increased the number back to nine. Court packing without apology.
Republican-appointed justices would go on to dominate the Court for the rest of the 19th century and first four decades of the 20th. Dominated by the “Four Horsemen,” a quartet of very conservative justices, Butler, McReynolds, Sutherland and Van Devanter, the Court routinely struck down legislation that regulated business activity. This came to a head in Schechter Poultry v. United States (1935), in which the Court ruled that the Live Poultry Code, part of the National Industrial Recovery Act of 1933 (NIRA) and President Franklin Delano Roosevelt’s “New Deal,” was unconstitutional because, they decided, diseased kosher chickens that the Schechter brothers brought into Brooklyn from New Jersey had insufficient effect on interstate commerce and was an unconstitutional delegation of power from Congress to the executive branch. Court watchers dubbed it the “sick chicken case.”
FDR had had enough. After his re-election in 1936, he urged Congress to pass legislation that would add one new justice to the Court for every justice who refused to retire at age 70, in short, a “court packing plan” to force the reactionary old fogies out and replace them with younger, more progressive judges. FDR’s initiative didn’t get very far. Even his vice president, John Nance Garner, opposed it, as did Henry “Five Syllables” Ashurst, Democratic chair of the Senate Judiciary Committee, who held up the bill for 165 days, his motto, “No haste, no hurry, no waste, no worry.”
But the Court got the message. In West Coast Hotel v. Parrish (1937), it upheld a Washington state minimum wage law, a 5-4 decision signaling a jurisprudential shift by Justice Owen Roberts, one of the Court’s two swing voters, who had previously voted to invalidate NIRA legislation. Humorist Cal Tinney called it “the switch in time that saved nine.” In any case, as older justices retired, the Court stopped invalidating key components of FDR’s New Deal and his court packing gambit became moot.
But that was then and now is now. When Biden becomes our next president, he will be faced with a Court that has already been packed by McConnell with Gorsuch, Kavanaugh and Barrett, starting in 2016 when the Republican-controlled Senate refused to even consider Merrick Garland and allowed the court to shrink to eight justices, with a 4 – 4 split, and intended to keep it there if Hillary Clinton won the 2016 election.
Nothing to see here, said Sen. Ted Cruz (R. TX) at the time, “There is certainly long historical precedent for a Supreme Court with fewer justices.” Yes, indeed. And he could just as easily have said, “more justices.” The number has been changed six times in American history, up and down, and doing so again would not be a “partisan suicide bombing” of the Constitution, simply a time-honored exercise of the powers conferred on Congress by the Constitution to rebalance the Court and remedy 12 years of court packing by Mitch McConnell and his Republican Senate.
Post-election note: Democrats can take control of the Senate and judicial appointments by winning the upcoming run-offs for both Senate seats in Georgia. But even if they do not, ending the filibuster and adding justices to the Court could be on the table again after the 2022 elections, when 34 seats, 21 held by Republicans and 13 by Democrats, will be at stake. Three Republican senators with single digit margins in their last election, Richard Burr (R. NC) (5.7%), Ron Johnson (R. WI) (3.4%), and Pat Toomey (R. PA) (1.5%), have already announced that they are retiring, so their seats will be up for grabs, and Roy Blunt (R. MO) (2.8%), along with Maggie Hassan (D. NH) (0.1%) and Catherine Cortez Masto (D. NV) (2.4%), could be in for very tough races, putting at least four Republican and two Democrat seats in play.
Featured photograph: Mark Peterson/Redux
Abigail Tracy, Donald Trump Made Justice Kennedy An Offer He Couldn’t Refuse [Vanity Fair – June 29, 2019]
Devins and Baum, How Party Polarization Turned the Supreme Court into a Partisan Court [Supreme Court Review – 2016]
Amanda Hollis-Brusky, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution (2015)
Marin Levy, Packing and Unpacking State Courts – William & Mary Law Review, Vol. 62:1121 (2020).