Court-Packing: What it Is and What it Is Not

Somewhat surprisingly, the issue of (Supreme) "court-packing" has developed into a campaign issue in the closing weeks of the race for the White House. That is because the Democrats in Congress, outraged over the Amy Coney Barrett nomination and the fact that it is going forward, are talking about increasing the number of justices who sit on the Supreme Court. The reason is obvious: Assuming Barrett is confirmed, which is most likely since Republicans control the Senate, there would be a conservative majority of 6-3 on the Court. The stakes are clearly very high.

In the recent vice-presidential debate, Kamala Harris pointedly dodged the direct question of whether a Biden-Harris White House would "pack the court" by simply adding more justices in order to overcome a conservative majority. She tried to define packing the court as what President Trump is doing, simply nominating new justices to fill existing vacancies, particularly in the final year of his term while an election was underway. Subsequently, Joe Biden refused to answer the question until after the election.

The Democrats have clearly blundered their way into a minefield, and they are trying to work their way out of it by simply redefining the term. Former Attorney General Eric Holder, who corrupted the Justice Department under President Obama, has also referred to the Barrett confirmation as "court-packing". Also disingenuous is the Democrat claim that somehow, it is "unconstitutional" for Trump to fill a vacancy in his fourth year during an election. Biden is one of the latest to throw that charge out. Even CNN's Jake Tapper forcefully corrected a Biden surrogate when she repeated that canard. Much like just about everything that Biden says these days, it makes no sense. Nowhere in the Constitution does it say a president in his/her 4th year cannot nominate a Supreme Court vacancy when one arises.

The term court-packing refers to President Franklin D Roosevelt's attempt to do just that way back in 1937. At that time, the Democrats had a huge majority, both in the Senate and the House of Representatives. However, Roosevelt was meeting with opposition from the Supreme Court, which had ruled many of his New Deal programs unconstitutional. Frustrated, he proposed legislation that would allow a president to appoint new justices for each one having reached the age of 70-up to a maximum of 6 new justices. Not even his own party would buy into that, and the idea went nowhere. It was dubbed, "court-packing", and that is what the term has meant ever since.

Now, seeing their "court-packing" charge being effectively dismissed, some on the left are trying to call it something else. The Associated Press has tried unsuccessfully to say that the Democratic idea is really "de-politicizing" the court, picking up a theme by Montana Senatorial candidate Steve Bullock (D). That definition is equally ludicrous on its face.

If there is one thing President Trump has not done, it is attempt to "pack the court". During his term in office, three vacancies have come up, and he has fulfilled his Constitutional duty by nominating replacements. If Trump were to attempt to "pack the court" by creating new positions, I would be the first to oppose him. However, that is not what is happening here. The Democrats, the media, and the left have really blundered here and presented the American people with yet another reason to reject the Democrats and their radical agenda.