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The Art of Packing

While accusing Democrats of wanting to "pack the courts," Trump has appointed almost a quarter of all active federal judges in the United States.

Supreme Court nominee Judge Amy Coney Barrett looks over to Senate Majority Leader Mitch McConnell (R-Ky.) as they meet on Capitol Hill in Washington, D.C. on September 29, 2020. (Photo: Susan Walsh/Pool/AFP via Getty Images)

"[T]he Senate is much given to admiring in its members a superiority less obvious or quite invisible to outsiders. . . ."

— Henry Adams, The Education of Henry Adams (1907)

Federal courts are a lot like suitcases as events over the last 5 years have shown. There are many different ways to pack them. This would be of no particular interest except for the cries of alarm being sounded by the packers in chief. They keep demanding that presidential candidate, Joe Biden, disclose whether, if elected president, he would use the only method of packing the United States Supreme Court that Senate Republicans, led by Mitch McConnell, have not needed to employ—expanding the number of Justices who sit on the United States Supreme Court.

The question is posed not because Republicans object in principle to the idea of increasing the size of the United States Supreme Court in order to create a majority aligned with their views, but because of the success they have enjoyed packing the entire federal court system without resorting to such an obvious tactic. There is strength in numbers and that has enabled Mitch and his cohorts to effectively pack the United States Supreme Court, and many Federal Courts of Appeal and Federal District Courts with conservative judges. Their success ensures that the political alignment of those courts will comport with the politics of the packers far into the future.

The first method of packing that was demonstrated by the Republicans took place in 2016 after Justice Antonin Scalia’s death. Following years of precedent, when Scalia’s death created a vacancy on the Court, President Obama did what all presidents before him had done on such occasions. He sent to the Senate the name of a replacement. Mitch did what had never before been done by a Majority Leader of the Senate-he refused to meet with the person who had been nominated by the president or to hold hearings or permit a vote on the nomination. Even though the 2016 election was 10 months away, Mitch said that a successor should not be selected until after the election and the people had spoken. The vacancy remained until after the 2016 election when the vacancy was given to the trump to fill, a much-valued gift that was the first example of Mitch and his colleagues packing the Supreme Court without expanding its size. If the Scalia vacancy had been a suitcase, upon arrival at its destination the traveler would have discovered the suitcase was well stocked with the traveler’s needs.

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The next example of packing the suitcase and the Supreme Court occurred 3 ½ years later when Supreme Court Justice, Ruth Bader Ginsberg, died less than 2 months before the 2020 election. With her death, the opportunity to select her successor was presented to Mitch and his cronies. Notwithstanding their earlier concern that any seat of a Supreme Court Justice who died in the same year as an election should remain vacant until the election had been held, Mitch concluded that his reasoning, following the death of Justice Scalia was wrong. The vacancy was immediately filled by Mitch and his gang thus once again demonstrating what had become their tried and true method of packing the Supreme Court.

Of course lower courts, like suitcases, can also be packed and Mitch and his followers did that throughout the last two years of the Obama administration and the 3 1/2 trump years. During the last two years of the Obama administration, Mitch effectively blocked the appointment of new Judges to the United States Courts of Appeals. In contrast, during the administrations of Presidents Reagan, Clinton, and Bush, the latest nomination to a Court of Appeals made by them and confirmed during the end of their respective tenures was submitted in the same year as the presidential election and they were confirmed that same year. Of the seven Obama nominees submitted by him in 2015 and 2016, none was confirmed, and their seats were vacancies that Mitch and the trump were able to fill after the trump became president.

Of course the Mitch method of packing the court applies equally to the Federal District Courts. There were 42 unconfirmed Obama nominees to the Federal District Courts when the trump became president. Nineteen of them had been nominated in 2015 and 23 of them had been nominated in early 2016. Those were vacancies that, before packing, would have been filled by the Senate before the election in 2016. Instead, and to the Trump’s and Mitch’s great delight, they were all filled after the trump’s election by nominees submitted by the trump and confirmed by a Senate controlled by Mitch and his colleagues.

According to one study, the trump has appointed almost a quarter of all active federal judges in the United States, That’s a record of which Mitch can be proud. Demanding to know whether the Democrats might try to pack the U.S. Supreme Court by adding Justices to the Court, the only means of packing the Republicans did not need to invoke in order to change the political make-up of the Federal Judiciary for many years to come, seems disingenuous. There’s a reason. It is.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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