What has me suffering a serious side-eye headache is all the Republican whingeing over a threat that has a slim chance of happening. Their badgering of Democratic presidential nominee Joe Biden and his running mate, Sen. Kamala D. Harris (Calif.), about the issue is especially galling when you consider the history of how we got to this hyperpartisan moment. As with everything Trump, the roots of the current drama go back to the Obama administration.
In 2012, my colleague Greg Sargent wrote about a telling on-the-record anecdote from Biden in the book “The New New Deal” by Michael Grunwald about how Republicans planned to oppose President Barack Obama when he took office in 2009. “Biden says that during the transition, a number of Republican Senators privately confided to him that [Senate Minority Leader] Mitch McConnell [R-Ky.] had given them the directive that there was to be no cooperation with the new administration,” Sargent wrote, “because he had decided that ‘we can’t let you succeed.’”
In other words, Republicans would obstruct everything, from legislation to Cabinet and judicial appointments. Back then, nominations could be tripped up by a filibuster that required 60 votes to advance to a final vote. Things changed after Obama’s reelection in 2012, when then-Senate Majority Leader Harry M. Reid (Nev.) and his fellow Democrats used the “nuclear option” by changing the rules to confirm federal judges (but not Supreme Court justices) by a simple majority.
“You’ll regret this, and you may regret this a lot sooner than you think,” responded McConnell. And how right he was. After the GOP won the Senate majority in 2014, McConnell exercised all power to thwart Obama’s judicial nominees in the last two years of his presidency. According to a 2018 report from Brookings, such confirmations were “fewer compared to [George W. Bush’s,] Clinton’s and Reagan’s.”
But McConnell’s biggest flex occurred hours after the death of Justice Antonin Scalia in 2016, when he said, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Never mind that the presidential election was nine months away. Not only was Judge Merrick Garland, Obama’s nominee, denied a hearing and a vote, but McConnell wouldn’t even meet with him.
As McConnell flogged that paper-thin rationale for stealing a Supreme Court seat, other Republicans made noises about holding the seat vacant if Democratic presidential nominee Hillary Clinton had won the 2016 election. “If Hillary becomes president,” said Sen. Richard Burr (R-N.C.), “I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”
President Trump’s surprise victory meant Burr and Republicans didn’t have to wait long. After Democratic obstruction, Justice Neil M. Gorsuch was confirmed to the seat in 2017. And McConnell did it by employing his own nuclear option to change the rules so the Senate could confirm Supreme Court justices by simple majority. That greased the skids for Justice Brett M. Kavanaugh’s chaotic confirmation in 2018 — just as it will make it easy for Republicans to confirm Judge Amy Coney Barrett days before an election.
Given this history, it should be clear that the real “court-packing” has been happening under Trump. Because Republicans choked off confirmations under Obama, Trump “inherited” 103 vacancies, notes a 2020 Brookings study. As of Oct. 6, according to the American Constitution Society, 218 judges have been confirmed, more than Trump’s Republican predecessors and second to Democratic President Jimmy Carter. The average age of Trump’s appointees to courts of appeals, considered the farm team for the Supreme Court, is 48.2 years.
So, let’s be clear: “Court-packing” isn’t just an irksome, misused phrase. It’s the Republicans’ latest shiny object of distraction.