Do We Have to Worry About George W. Bush Packing the Courts?
President George W. Bush plans to “pack” the federal courts with conservatives. Or so say a growing list of important people: Senators Charles Schumer and Patrick Leahy, Representatives Elijah Cummings and Anthony Weiner, Yale Law’s Bruce Ackerman, and legal commentators John Dean and Edward Lazarus. News organizations such as Reuters, the Washington Post, the New York Times, and Time magazine have occasionally adopted Schumer and friends’ usage of the verb “pack.”[1] It is quickly becoming a stock term of political and journalistic parlance. Used this way, “pack” refers to the confirmation of ideologues as judges. In the Schumer lexicon, “to pack” means to ideologically predetermine judicial appointments.
However, this use of the term is a misuse with political value. The people listed above are Bush’s adversaries; they use the term “pack” pejoratively. It carries a negative and stigmatizing tone. It subtly suggests that by nominating candidates of the Scalia-Thomas-Rehnquist ilk, Bush acts in bad faith. Those who wield the court-packing expression seek to put down President Bush’s appointees and to deter him from nominating people whose views they dislike.
Politics aside a moment, this overly broad definition of court-packing has counterintuitive ramifications. Under such a meaning, nearly all American courts have already been “packed,” and will inevitably continue to be. All presidents select candidates they first consider ideologically acceptable. Since “packing” becomes unavoidable, it would cease to be a coherent complaint.
Furthermore, even if a president hypothetically took no account of ideology, using Schumer-speak, “non-packed” appointments could not be objectively distinguished from “packed” ones because all pass through the same procedural checkpoints, nomination by the president and then confirmation by the Senate. One may distinguish the “packed” from the “non-packed” by only gazing through a special lens officiously provided by Schumer and friends--a lens itself colored by certain political dogmas.
Finally, Schumer and company’s ideology-only definition exposes them to their own charge. For example, they would allow confirmations of judges whose views fall within a certain orthodoxy. Suppose they successfully block non-conforming candidates and allow conforming ones. By their own logic they would have “packed” the courts. The ideology blade--being relative--cuts in both directions.
These defects in the Schumer definition strongly argue that if the word is to have much descriptive value, “court-packing” should not mean weighting the bench toward an ideology through the constitutionally accepted confirmation process. Historically, the word has not carried this meaning. “Packing” more aptly signifies a procedural move to transform a court. This article proposes that court-packing occurs when another branch of government restructures the judiciary for the purpose of changing its rulings.
America has seen a true court-packing scheme. President Franklin Delano Roosevelt proposed a bill in 1937 that would have authorized a genuine packing plan. However, Roosevelt’s bill is utterly dissimilar to Bush’s goal. To contrast Bush’s purposes with Roosevelt’s has important contemporary relevance; it can discredit attempts by Schumer and friends to mislabel as court-packing otherwise legitimate appointments.
Roosevelt Court-Packing Versus Bush Nominations
On February 5, 1937, President Franklin Delano Roosevelt addressed the United States Congress and announced a plan to overhaul the federal judiciary, including the U.S. Supreme Court, by adding judges.[2] Roosevelt desired an unprecedented power to create new positions on the federal bench. He sought to appoint a new federal judge for every judge then-sitting who was over seventy years of age.[3] The Supreme Court itself was to absorb six more, increasing its membership from nine to fifteen. The proposal would have given the President effective control of the federal judiciary. Roosevelt eventually admitted the plan’s rock-bottom purpose: to “liberalize” the courts so that New Deal legislation would survive constitutional challenges.[4] The Supreme Court had struck down, among other programs, one of Roosevelt’s favorite creations, the National Industrial Recovery Act. (Ironically, liberal and conservative justices alike struck it down unanimously.)[5]
Thus, court-packing Roosevelt-style means to procedurally restructure the judiciary for the purpose of reversing its substantive rulings.
Argentina’s history provides an example of how Roosevelt’s bill might have affected the American legal system, had it passed in its original form. To overcome opposition to his proposals from Argentina’s Supreme Court, former president Carlos Menem added four handpicked judges, increasing the Court’s membership from five to nine. Menem’s allies became the majority and rubber-stamped his policies. (Once again, a procedural innovation altered substantive law.) Unfortunately, leaders like Menem and Roosevelt are common in recent Argentina. “Since Perón, five of 17 presidents [have] named every member of the [Argentine Supreme] Court during their term.”[6] The average tenure in Argentina for Supreme Court justices is below four years—a shockingly rapid turnover—considering the average tenure was over three times longer (twelve years) when Perón took power.[7]
Thus, Roosevelt’s plan, like Menem’s, called for the virtual demolition of then-current confirmation procedures to reorder substantive law. As Argentina’s experience demonstrates, true court-packing causes radical fluctuations in the length of tenure of judges, the number of judges on a court, or the average percentage of judges appointed by individual presidents.
None of these conditions parallels George W. Bush’s strategy to appoint conservatives to the federal bench. Schumer and company have it wrong on all counts. Bush has proposed no significant change in the number of judges or in the federal judicial structure. Moreover, conservatives already dominate the lead tribunal, the U.S. Supreme Court, which lower courts are sworn to follow. By seating Nino Scalia think-a-likes, Bush would be consolidating—not newly establishing—a conservative grip. Therefore, Bush’s conservative nominations do not constitute court-packing.
Ultimately, Roosevelt’s court bill failed. But despite its defeat, he tilted the federal judiciary sharply leftward by filling vacancies with ideologically selected candidates. By the close of 1941, Roosevelt had appointed the majority of Supreme Court justices without resorting to court-packing, and ushered in a new legal era.[8] Some of Roosevelt’s individual nominees still aroused controversy, notably former Klansman Hugo Black. But all in all, when Roosevelt appointed left-leaning judges using the accepted procedural framework, the war cry of “court-packing” largely subsided. George W. Bush deserves no less.
[1] The “packing” accusations have been levied both before and after the 2002 mid-term elections. See “Bush Judicial Nominee is Rejected,” Rutland Herald, 5 Sep 02 (quoting Senator Charles Schumer), http://rutlandherald.nybor.com/News/Story/52587.html; for the same quote by Schumer, see Neil A. Lewis, “Democrats Reject Bush Pick in Battle Over Court Balance,” New York Times 6 Sep 02, http://query.nytimes.com/search/article-page.html?res=9C00E7D8123EF935A3575AC0A9649C8B63; Patrick Leahy, “Hearing for Miguel Estrada …” 26 Sep 02, http://leahy.senate.gov/press/200209/092602.html; Leahy, “Statement of Chairman Patrick Leahy,” Congressional Record, 10 Oct 02, http://leahy.senate.gov/press/200210/101002b.html; MD Representative Elijah Cummings’s article posted on his site, “Eternal vigilance is the price of liberty,” 5 May 01, http://www.house.gov/cummings/articles/art01_18.htm; J. Benson, “Super Chuck Flies Again!” New York Observer, 16 Nov 02, (quoting NY Representative Anthony Weiner), http://www.observer.com/pages/story.asp?ID=4371; Bruce Ackerman, “Foil Bush’s Maneuvers for Packing the Court,” Los Angeles Times 26 Apr 01, reproduced at http://www.commondreams.org/views01/0426-02.htm; John Dean, “Litmus Test For Litmus Tests: Why The Pickering Nomination Will Indicate Whether Bush Can Get Conservative Judges Confirmed,” Findlaw, 1 Mar 02, http://writ.findlaw.com/dean/20020301.html; Dean, “After Election 2002, Bush plans to fill courts with right-wing judges,” Findlaw 8 Nov 02, http://www.cnn.com/2002/LAW/11/08/findlaw.analysis.dean.judges/index.html; Edward Lazarus, “Fighting For the Soul of the Federal Judiciary: What We Can Expect From Bush's Nomination Process, and His Nominees,” Findlaw 20 Mar 01, http://writ.news.findlaw.com/lazarus/20010320.html; the Washington Post uses a Reuters dispatch employing the “packing” language, “Democrats Expected to Approve Two Bush Judges,” 13 Nov 02, http://www.washingtonpost.com/wp-dyn/articles/A50091-2002Nov13.html; Neil A. Lewis, “Washington Talk; Democrats Readying for Judicial Fight,” New York Times 1 May 01, http://query.nytimes.com/search/article-page.html?res=9A03EEDE1638F932A35756C0A9679C8B63; Douglas Walker, “On Judges, Washington Gets Ready to Rumble,” Time 11 Jun 01, http://www.time.com/time/columnist/waller/article/0,9565,130022,00.html.
[2] For a reprint of the speech, see: Franklin Delano Roosevelt, “Message on Judiciary,” Evening Star 5 Feb 1937: A1+. Also reproduced at http://newdeal.feri.org/speeches/1937b.htm.
[3] Rober Biles, A New Deal for the American People (Dekalb: N. Illinois UP, 1991), 137.
[4] Owen L. Scott, “Roosevelt Determined to Liberalize Courts,” Evening Star 14 Feb 1937: D2.
[5] See United States v. A.L.A. Schechter Poultry Corporation, 295 U.S. 495 (1935); for a summary of the Hughes Court’s record on New Deal programs at the time of Roosevelt’s speech, see: “Supreme Court Decisions on New Deal Laws Have Been 11 to 5 Against Administration,” New York Times 6 Feb 1937: 8. Unanimous rulings against New Deal programs were quite common, see: Richard Maidment, “The New Deal Court Revisited,” Nothing Else to Fear, ed. S. W. Baskerville and R. Willett (Manchester: Manchester UP, 1985), 36-63.
[6] Brink Lindsey, Against the Dead Hand (NY: John Wiley, 2002), 171.
[7] Lindsey, Against the Dead Hand, 171.
[8] Biles, A New Deal, 140; William Leuchtenberg, “FDR’s ‘Court-packing’ Plan,” The Supreme Court Reborn (New York: Oxford UP, 1995), 132-62. Roosevelt’s appointments through 1941 include Hugo Black (1937), Stanley F. Reed (1938), Felix Frankfurter (1939), William O. Douglas (1939), Robert H. Jackson (1941), and James F. Byrnes (1941).