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Arizona scheme raises 'court packing' questions

In light of the Republican apoplexy about "court packing," aren't state GOP lawmakers doing exactly what Franklin Roosevelt proposed 85 years ago?
Citizens tour the Arizona Capitol grounds in Phoenix in this Dec. 14, 2004 file photo.
Citizens tour the Arizona Capitol grounds in Phoenix in this Dec. 14, 2004 file photo.
In recent years, Senate Republicans have somehow convinced themselves that "court packing" means making judicial nominations and then having the Senate confirm those jurists to the bench. In fact, as genuinely bizarre as this is, GOP senators have repeatedly suggested in recent years that if a Democratic president follows the constitutional process, the public should perceive it as scandalous and illegitimate.
It's not. "Court packing" was an FDR-era idea in which the executive branch would expand the number of seats on the bench in order to tilt the judiciary in the president's favor. In other words, if the White House's agenda struggled at the Supreme Court in a series of 5-4 rulings, the president could expand the court to 11 members, appoint two new allies, and voila, there'd be 6-5 rulings in the administration's favor.
The idea was floated in the 1930s, but it was considered deeply controversial and didn't go anywhere.
This year, however, Republican policymakers in Arizona have an idea: expand the state Supreme Court from five seats to seven, and let the state's current Republican governor fill the newly created vacancies. The proposal has already passed the GOP-led legislature, though the NBC affiliate in Tucson reported yesterday that the state's top judge is urging Gov. Doug Ducey (R) to veto the bill.

Chief Justice Scott Bales says in a letter to Ducey that the court's caseload doesn't merit expansion, especially when the Legislature has underfunded other court priorities. The Republican-controlled Legislature approved the $1 million-per-year expansion in the just-ended session. It awaits Ducey's signature or veto.

Georgia Gov. Nathan Deal (R) recently expanded his state's Supreme Court from seven justices to nine, which came on the heels of related efforts in Florida, South Carolina, North Carolina, and Iowa in recent years.
The Arizona initiative, in other words, does not appear to be an isolated incident.
The effort in the Grand Canyon State is not yet a done deal -- Ducey has not yet said whether he intends to sign the bill or veto it, though rumor has it that he's inclined to endorse the change.
But in light of the Republican apoplexy about Obama and "court packing" -- complaints that have really never made any sense at all -- isn't this evidence of state GOP lawmakers doing what Franklin Roosevelt proposed 85 years ago? The Atlantic took a closer look:

In Arizona, there are a couple of key differences between the GOP effort and FDR's bid to secure approval for New Deal legislation in the 1930s by adding more of his own appointees to the nine-member Supreme Court. For one, even critics of the Arizona plan say it is not motivated by specific legislation or a specific case. And the appointment process is different, too. The governor must select judges from a group recommended by the Arizona Commission on Appellate Court Appointments; he could still choose candidates from his own party, but his power is more limited than a president's. Yet there is little dispute that conservatives have pushed the expansion with the goal of padding the court during Republican gubernatorial administrations. The sponsor of the bill, state Representative J.D. Mesnard, acknowledged that "if there were different person appointing, I might feel less comfortable."

"This is just another example of people in power exploiting their power," Mark Harrison, the chair of Justice at Stake, a nonpartisan judicial watchdog group, recently said. "They can do it, so they're doing it."