Court Packing – USA Gov Policy

Can Congress “Pack” the Supreme Court? Part 2

This exclusive report was provided to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson, Ret.)

Erwin Chemerinsky cheers on the discredited idea of “court packing” in the Los Angeles Times; “One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices.”

Since 1869, the United States Supreme Court has consisted of 9 judges. “Congress can shape the size of the Court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new Justices. (After Ulysses Grant was elected President in 1868, the number was bumped back up to nine, where it has remained ever since.)”

“The most famous example was the effort by President Franklin Roosevelt in 1937 to deal with a Court that was striking down much of his New Deal legislation. After his landslide re-election in 1936, he proposed to add one justice for every judge who’d reached the age of 70, up to a total of 15…(d)espite his popularity, and the overwhelming control of the Congress by Democrats, the proposal became the first political defeat of FDR’s presidency—and came at the hands of his own party. His own vice-president, John Garner, fought it. The Democratic leader in the Senate rejected it….(t)he proposal died in Congress before a vote was taken.”

Unfortunately, unlike FDR, a President Biden would not be opposed by a Vice President Harris in anything, least of all a scheme to pack the Supreme Court with new progressive judges, nominated to counterbalance the conservatives who would be in the majority were Trump’s nominee to be approved by Congress. This leftist dream scenario is entirely possible.

In response, Congressman Doug Collins (R-Ga) has plans to introduce “a constitutional amendment to prohibit a change to the size to the Supreme Court until 10 years after enactment of any legislation that would alter the number of seats on the high court.” However, as noted by Fox News, “(t)here’s a high bar to passing an amendment: In order to pass, a constitutional amendment must receive approval from two-thirds of the House and Senate, as well as ratification from three-fourths of all states, or 38 out of 50.”

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As a more practical matter, were a Democratic President to carry through with any scheme to increase the number of Supreme Court Justices, there is a good chance that any such plan would come back to eventually haunt the left.

All politics is cyclical. Today we have a Republican President – more likely than not, that President will be followed by a Democrat, who will then be followed by a Republican. Jimmy Carter, a Democrat, was followed by Ronald Reagan. After George HW Bush (who, it has been argued, was an extension of the Reagan presidency) came Bill Clinton, another Democrat, who was followed by George W. Bush. After Bush came Barak Obama, who has been followed by Donald Trump.

During Obama’s presidency, “Senate Democrats — then in the majority — triggered the nuclear option for the first time…Democrats led by Senate Majority Leader Harry Reid of Nevada, changed the rules so that lower court and Cabinet nominees could be confirmed with a simple majority, rather than the typical 60-vote threshold.”

At the time, Democrats believed they could rely upon a “permanent majority” – a nonsensical notion, but one that lead the then-Democratic majority to make a rules change that has been used against them repeatedly during the Trump Administration. “(T)he total number of (federal) judges confirmed under (the Trump) administration (is) 216, which represents nearly one-fourth of all active (federal) judgeships.”

All of these judges have been approved by simple majority vote.

Thus, were a Democratic Administration to “pack” the Court in 2021, in 2032, a Republican Administration could easily either appoint more Supreme Court judges, or scale back the number then-sitting. Significant damage will have been done, no doubt. But the cyclical nature of our system will endure.

Photo: Pixabay

This exclusive report was provided to the New York Analysis of Policy and Government by the distinguished jurist, Judge John H. Wilson, (Ret.)

Whether you are on the left or the right, the passing of Supreme Court Justice Ruth Bader Ginsberg is a historic event. For the left, Justice Ginsberg was an admirable figure, and a pioneering feminist. For those on the right, “Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.”

In fact, the death of Justice Ginsberg has exposed yet another fault line in American political thought. For the left, a judge should be an activist – that is, “(t)he courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny.” Meanwhile, conservatives believe that “the role of judges is to enforce the Constitution and laws that conform to the Constitution . . . to give effect to the words of the Constitution and statutes. If the meaning of the words is clear, the judge goes no further.”

In other words, one side wants judges to defer to the will of the legislature, who are the duly elected representatives of the people, and interpret laws as they are written. the other wants judges to temper and “reinterpret” the acts of the legislature. However, in “tempering” the acts of any legislative branch, an activist judge ends up substituting their own views for those of the elected officials who made those laws. Herein lies the real problem of activist judges – “they seek to impose their personal preferences. But a judge who looks beyond the text of the Constitution ‘looks inside himself and nowhere else.’”

President Trump has made it a point to nominate judges to both the lower federal courts and the Supreme Court who are strict constructionists – “all of whom will faithfully uphold our Constitution as written,” in the President’s own words. Keeping this promise is exactly what the left fears.

Without a doubt, the person named to replace Justice Ginsberg will not be an activist in any way. Another legally conservative judge will tilt the balance of the high court in favor of strict construction of the law, or as Ian Millhiser frets in in Vox, “(l)ong after Trump leaves office, these judges will shape American law — pushing it further and further to the right even if the voters soundly reject Trumpism in 2020.”

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This fear would explain the over-the-top reaction of those on the left to the death of Justice Ginsberg, and the prospect of her being replaced by President Trump prior to the November election. Senate Minority Leader Chuck Schumer (D-NY) summed up the mood of most of the left when he said “Everything Americans value is at stake. Health care, protections for preexisting conditions, women’s rights, gay rights, workers’ rights, labor rights, voting rights, civil rights, climate change and so much else is at risk.”

This panic has led to an old scheme made new again – “packing” the Supreme Court with new judges.

Jeff Greenfield fantasizes out loud about this possibility in Politico; “It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court… (w)ithin days, or moments, of the start of new Senate session, Majority Leader Chuck Schumer announces his intention to move legislation that would expand the Supreme Court from nine to 13 members, to ‘repair the wound inflicted on our Constitution by the Republicans’ refusal to recognize the will of the electorate.’ The Senate and House pass the bill, and President Joe Biden signs it on Inauguration Day.”

The Report Concludes Tomorrow

Photo: Pixabay

Quick Analysis

Russia Expanding Aggression

President Putin is using more than one pathway to enter Europe and undermine the West. While most of the world watches the conflict he initiated in Ukraine, the Russian government is actively pursuing a second front in a little noticed campaign in Cyprus. Although the corrupt Cypriot government ended its issuance of “golden passports” in 2020, Russian intelligence is functioning quietly there to transform this EU country into a Russian beachhead of illicit economic activity aimed at penetrating the capitalist West, according to Paul Goble of the Jamestown Foundation. Cyprus is not a member of the North Atlantic Treaty Organization (NATO) nor does it receive as much attention as those countries who are member states. That adds to its allure as a prime location for Russia to attempt to gain a European foothold. Last week a NATO report, cited in the European Daily Monitor, noted that Russian intelligence agents have been plotting to destroy European infrastructure across the continent to disrupt states supporting Ukraine. It further suggests that Putin’s immediate goal is to lay the framework for a future move against the security organization’s members. Hungary, in particular, is another country garnering Moscow’s attention as it opposes the Western response to Russian aggression. Russia is focusing its intelligence efforts on other European, non-NATO member countries in addition to Cyprus, including Austria, Malta, and Ireland. The NATO report suggests that Moscow has had success in disseminating the Russian political narrative in these states to advance its campaign against the West. The island of Cyprus is proving to be a good target for Moscow as it is an ethnically divided island that is part of the EU since 2004. Northern Cyprus, officially called the Turkish Republic of Northern Cyprus (TRNC), is a de facto state that is only recognized by Turkey. The division precludes it from joining NATO. As Goble suggests, “it offers Russia troubled waters in which to fish.” Over the last 20 years, he points out, Cyprus’ challenges have opened it to a massive influx of Russian citizens, who now comprise approximately 10 percent of the island state’s population. Over 2,900 residents are Russians who entered until the “golden passport” program that allowed wealthy or well-connected Russians to move to Cyprus. It also provided them with documentation to travel freely throughout Europe! Although less visible on the world’s radar than the war in Ukraine, Moscow is also being helped by Cyprus’ banks opposition to seizing Russian assets and its support in evading Western sanctions. Russia has placed tens of billions of US Dollars there for money laundering. It has been more than two years since a single Russian “diplomat” has been deported and, in fact, the Embassy has grown to over 300 staffers on this tiny island state of only 1.2 million people. The Russian embassy in Nicosia has advanced communications antennae on its roof and opened a consulate on the northern end of the island. Moscow’s Ambassador, Mura Zyazikov, is a lieutenant general in the FSB with no diplomatic experience. The FSB, SVR (Russia’s Foreign Intelligence Service), and GRU are actively using the island as a base of operations against NATO Member states, Israel, and other Western allies. Moscow backs pro-Russian political parties who in turn influence Cypriot decisions on education, language, and other issues. “Dmitry Khmelnitsky of the Dossier Center says that its findings should be of concern not only to Cyprus but to the West as a whole. Those who ignore what Moscow is doing because Cyprus does not follow the EU sanctions regime are missing something critical,” says Goble. “Cyprus does not seek to get rid of Russian agents and does not interfere with their work,” Khmelnitsky concludes, “despite the fact that what the Kremlin is doing is so clearly visible.” This has an impact not only on the small island but on the EU, NATO, and the West in general. Earlier this year the Moscow Times reported that when the FBI became more interested in Russian business and oligarchs in Cyprus, at least 10 of the major Russian businesses operating there left. Despite the government of Cyprus’ vow to implement plans for new sanctions against Russia, it continues to ignore Putin’s atrocities in Ukraine and to shield the wealth of the 50,000 wealthy Russian citizens and oligarchs residing there. Daria Novak served in the U.S. State Dept. Illustration: Pixabay