In recent decades, there have been some ugly partisan fights over judicial nominees, with senators of one party trying to stand in the way of jurists nominated by the president of another party, but the current fight in the Senate is without modern precedent.
In theory, the task at hand should be incredibly straightforward: the U.S. Court of Appeals for the District of Columbia Circuit, widely seen as the nation’s second most important federal bench, has three vacancies. President Obama has selected three non-controversial nominees to fill those vacancies. It’s the Senate’s job to evaluate the nominees and vote on them. It’s Civics 101.
But because this 11-seat appeals bench is so important, and because it’s currently split evenly – four Democratic nominees to four Republican nominees – GOP senators have decided that their new goal is to eliminate the three vacant seats and permanently reduce the total to eight.
Indeed, in early August, Senate Minority Whip John Cornyn (R-Texas) said this approach – Republicans get to eliminate Obama’s nominees; Democrats get nothing – is a “reasonable compromise.” (When I argue the GOP literally doesn’t know the meaning of the word “compromise,” this is what I’m talking about.)
And with the Senate poised to consider the president’s nominees, the Republican push is getting louder – and a bizarre GOP error is becoming more common.
“It’s clear they’re trying to pack the D.C. court,” said Sen. Orrin Hatch (R-Utah), also a member of the committee. “It’s probably the most important appellate court in the country … so there’s a matter of great concern.” […]“I’m going to fight as hard as I can,” [said Sen. Jeff Sessions (R-Ala.), a member of the Senate Judiciary Committee.]Sen. John Cornyn (R-Texas) reiterated his party’s complaints last week in a FoxNews.com op-ed. “Republicans should remain united in blocking Senate Majority Leader Harry Reid’s attempt to pack the D.C. Circuit Court of Appeals, which is America’s second-most-influential judicial body,” Cornyn wrote.
If Republicans are bewildered by the word “compromise,” they’re completely lost when it comes to understanding what “court packing” means.
This first came up back in May when Sen. Chuck Grassley (R-Iowa), who’s supposed to know better, launched the ridiculous “court-packing” complaint. I hoped at the time that this was an amusing-but-isolated misstep involving a Republican senator who routinely gets baffled by details, but Grassley error has since been adopted as GOP orthodoxy.
So let’s again set the record straight. “Court packing” was an FDR-era idea in which the executive branch would expand the number of seats on a bench in order to tilt the judiciary in the president’s favor. The idea was floated in the 1930s, but not seriously pursued.
It’s not at all what the Obama White House has in mind now. In fact, all the president is doing is nominating qualified jurists for judicial vacanies – it’s not controversial; it’s basic American governance. That the GOP wants to characterize the basics of our constitutional system as shocking and offensive is more than a little bizarre.
Indeed, during Reagan’s two terms, he named nine judges to the D.C. Circuit. Was this “court packing”? No, it was a president sending judicial nominees to the Senate, which then confirmed those nominees. It’s the way the system is supposed to work, whether you like the president at the time or not.
Senate Republicans would have us believe that judicial nominations – not the individual nominees, but the existence of the nominations themselves – are now so controversial that they must resist. Election results don’t matter; the constitutional process doesn’t matter; the merit of the nominees doesn’t matter.