The Washington PostDemocracy Dies in Darkness

The GOP’s court-stacking

Democrats say it’s actually Republicans who have engaged in court-packing. That’s not right, though. Here’s why “court-stacking” is a better fit.

Senate Majority Leader Mitch McConnell (R-Ky.) stands as President Trump speaks about his impeachment acquittal in February. (Jabin Botsford/The Washington Post)

As Judge Amy Coney Barrett’s Supreme Court confirmation hearings began Monday, the political world almost seemed more consumed with the past and the future of such nominations than with this one.

Some Democrats are pushing their party to “pack” the court with more justices to retaliate against the GOP’s judicial gamesmanship, but Democratic presidential candidate Joe Biden continues to refuse to say whether he supports it. Liberals are apoplectic that Biden’s refusal to take a position has become such a story, arguing that it pales in comparison to what Republicans have done.

And liberals appear to have settled upon a new talking point: It’s the GOP that has packed the courts.

We can say a few things:

  1. Biden’s refusal to answer this question is a real story. This is an issue of huge importance to the country’s future come 2021, if Democrats control the Senate and the presidency and would have the power to pack the court. Biden’s defenders argue that his refusal to answer is smart politics; that may be true, but smart strategy is one thing, while transparency is quite another.
  2. The attempt to label what the GOP has done “court-packing” is too cute by half. Since President Franklin D. Roosevelt’s attempt to pack the court in the 1930s, court-packing has been understood to mean statutorily adding seats on the bench so you can tip its balance in one fell swoop; it has never meant more broadly doing controversial and/or brazen things to game the process and get more judges for your side.
  3. Republicans have unquestionably done the latter. At numerous points in recent years, Republicans have floated or done things with little or no precedent to help their party install a higher percentage of sitting judges. So while it may not be “court-packing,” you could sure call it something else. I’d humbly submit that a more apt term would be “court-stacking."
Democratic presidential nominee Joe Biden initially dodged questions in October 2020 about whether he would pack the court before saying he opposed it. (Video: The Washington Post)

So what exactly has the GOP done?

It begins with arguably the most consequential judicial gamesmanship in modern political history: Republicans’ blockade of President Barack Obama’s judicial nominees. When they were in the minority, they exploited the filibuster and “blue slips” (the ability of home-state senators to unilaterally block a judge) to resolutely prevent Obama from filling vacancies. This eventually drew then-Senate Majority Leader Harry M. Reid (D-Nev.) to invoke the nuclear option in 2013 — i.e., eliminating the 60-vote threshold.

But then, in 2014, the GOP won back the Senate, making new Majority Leader Mitch McConnell’s (R-Ky.) blockade power absolute. So when Supreme Court Justice Antonin Scalia died in early 2016 and Obama nominated Merrick Garland, the GOP simply refused to even consider the nomination. In doing so, it invoked a supposed rule about presidential-election-year Supreme Court nominations that it has now conveniently disregarded for Barrett.

The combined effect was a huge number of vacancies awaiting the next president who had a Senate controlled by his own party, which wound up being Donald Trump. The GOP Senate over the final two years of Obama’s presidency confirmed 28 percent of his nominees — less than half the rate of the previous four presidents. It confirmed 22 in total, which was the lowest number for a two-year span since 1951-52 and far shy of the 68 that a Democratic-controlled Senate confirmed in President George W. Bush’s final two years. In sum, Trump walked into office with more than 100 vacancies ready to be filled, including one on the Supreme Court.

The second relevant bit of gamesmanship came around the time of this transition. For the GOP’s gambit to pay off, they needed Trump to win the presidency, which the conventional wisdom at the time held was unlikely. So even as they were blockading Garland’s nomination, some Republicans were floating the idea of also preventing a newly elected President Hillary Clinton from filling the seat — effectively leaving the court with eight justices rather than nine indefinitely.

Among those who toyed with or advocated for the idea were Sens. Ted Cruz (R-Tex.) and Richard Burr (R-N.C.) and the late senator John McCain (R-Ariz.).

A third relevant example came at another point in which the term “court-packing” was thrown around willy-nilly. Republicans alleged that’s what Obama was doing in 2013 when he simultaneously nominated three people to fill vacancies on the appeals court for the D.C. Circuit, which is widely regarded as the second-most powerful court, behind the Supreme Court. Among those who tried in vain to label that “court-packing” were McConnell, Sen. Mike Lee (R-Utah) and Sen. Charles E. Grassley (R-Iowa). But Obama wasn’t expanding the court; he was merely filling vacancies that some argued didn’t need to be filled, given that the court wasn’t all that busy.

And in fact, there was one person at the time talking about changing the number of seats on the court: Grassley. He proposed a bill that would have statutorily shrunk the court from 11 judges to eight. Before that, he led an effort under George W. Bush to shrink the court from 12 to 11.

Finally, while court-packing hasn’t been attempted at the federal level since FDR’s attempt blew up, there have been examples of it at the state level. As Duke University professor Marin K. Levy wrote in a report this year, most of them have been spearheaded by Republicans — with two efforts succeeding in Arizona and Georgia.

“At the very least, that practice is in tension with the current Republican claim that court-packing is an affront to separation of powers and must be off the table,” Levy has said.

As with many things in politics, trying to quantify gamesmanship is a subjective exercise, as is determining who is truly responsible for busting the norms that open the floodgates to a more politicized process. Republicans have argued that Democrats lost the moral high ground on such things with their treatments of Supreme Court nominees Robert Bork and Brett M. Kavanaugh and their filibusters of some of George W. Bush’s lower-court nominees — most notably Miguel Estrada in 2003.

The Post’s editorial board at the time eviscerated Democrats, saying they were “engaged in a kind of extortion.”

“Filibustering judges isn’t quite the unprecedented step that Republicans claim," the board wrote. “But a lower court nominee has never been stopped by filibuster, nor has withholding a vote ever been used to force a nominee to discuss matters about which nominees traditionally remain silent. The Estrada vote, therefore, formalizes a dramatic escalation in the war over the courts — one Democrats may come to regret.”

Republicans would certainly draw a line from Estrada to their own blockades to today, which isn’t unreasonable. They also warned Reid when he went nuclear that he would rue the day, which they may have been right about. McConnell might well have eventually gone nuclear on all judicial nominees, anyway, but Reid’s action clearly greased the skids. And when you combine that with the GOP’s impending takeovers of the Senate and presidency, it all allowed Trump and McConnell to remake the judiciary much more in the GOP’s image.

But the GOP at the very least ratcheted up the politicization in the Obama years significantly, as the numbers above make abundantly clear. And McConnell has often reflected in pride at his bare-knuckle effort to make it all happen.

Just last week, Fox News host Sean Hannity repeated a bogus Trump talking point that Obama somehow had inexplicably left all these judicial seats empty because of his incompetence.

“I was shocked that former president Obama left so many vacancies and didn’t try to fill those positions,” Hannity said, somehow with a straight face.

But McConnell quickly interjected.

“I’ll tell you why," McConnell said with a wry laugh: “I was in charge of what we did the last two years of the Obama administration.”

Nobody can dispute that. And it all resulted in a rather successful GOP attempt at court-stacking — just not court-packing.