From the Department of Really Bad Ideas
In an op-ed in the New York Times today, author Jean Edward Smith suggests that Democrats should consider court-packing as a way of overcoming the conservative majority on the current Supreme Court. Smith points out that the number of justices on the Court is determined by statute, not by the constitution. Therefore, if a Democrat is elected president in 2008, Congress could simply pass legislation expanding the number of positions on the Supreme Court, and the Democratic president could fill the open spots. Problem solved!
With all due respect to Smith, this is a truly terrible idea, the kind of idea that only someone with very little understanding of modern politics would propose.
Smith is clearly very upset by the recent decisions of the Roberts Court, accusing it of "thumbing its nose at popular values." Fairly or not, I suspect that's exactly how many conservatives felt in prior decades. But if the Court's decisions upset Smith, imagine how she would have reacted if, in 2004, the Republican Congress had passed a court-packing bill and Bush had appointed four new justices instead of two. I'm guessing she would have been apoplectic.
Well, if the Democrats were to ever try such a move, conservatives would (understandably) go completely nuts. They would march in the streets, shut down government; there would be nonstop wailing and gnashing of teeth. And as soon as they managed to regain control of the White House and Congress (an event that would be hastened greatly by the political blowback caused by this hair-brained court-packing scheme), they would immediately retaliate by packing the court with their own justices. In other words, it would trigger the judicial equivalent of a nuclear arms race, with each side adding justices whenever it can.
It's generally wise to follow the political golden rule, i.e., if you would be outraged if the other side tried something, you should probably refrain from doing it yourself. Court-packing is a really bad idea.
With all due respect to Smith, this is a truly terrible idea, the kind of idea that only someone with very little understanding of modern politics would propose.
Smith is clearly very upset by the recent decisions of the Roberts Court, accusing it of "thumbing its nose at popular values." Fairly or not, I suspect that's exactly how many conservatives felt in prior decades. But if the Court's decisions upset Smith, imagine how she would have reacted if, in 2004, the Republican Congress had passed a court-packing bill and Bush had appointed four new justices instead of two. I'm guessing she would have been apoplectic.
Well, if the Democrats were to ever try such a move, conservatives would (understandably) go completely nuts. They would march in the streets, shut down government; there would be nonstop wailing and gnashing of teeth. And as soon as they managed to regain control of the White House and Congress (an event that would be hastened greatly by the political blowback caused by this hair-brained court-packing scheme), they would immediately retaliate by packing the court with their own justices. In other words, it would trigger the judicial equivalent of a nuclear arms race, with each side adding justices whenever it can.
It's generally wise to follow the political golden rule, i.e., if you would be outraged if the other side tried something, you should probably refrain from doing it yourself. Court-packing is a really bad idea.
posted by A.L. at 3:06 PM
4 Comments:
Once again sir, you bring reason to an emotional and sensitive issue. Roosevelt didn't come out smelling too good either, when he tried that stunt if I remember my high school history class.
Of course, this whole issue of the make-up of the Supreme Court shows how vitally important it is for a Democrat to win in the upcoming Presidential election. A vast array of civil liberties rest on the fragile life of 80+ year old Johm Paul Stevens. I've been using my best guess of the type of Justices that a Presidential canidate would nominate as my primary criterion since '96.
My history is a little fuzzy too, but I also immediately thought of FDR when reading this piece. Perhaps Smith could use a history lesson...
http://en.wikipedia.org/wiki/Court_packing
Smith just generally came off looking like an idiot in that piece. Factual errors galore, like saying that the post-civil War congress took Reconstruction out of the hands of the courts. That's news to me. I wonder how she squares that with The Civil Rights Cases and the Slaughterhouse Cases, and Plessy. And I nearly fell out of my seat reading the part where she pointed to Justice Marshall to support the proposition that the Court should only determine "legal issues." Maybe she hasn't heard of a little case known as Marbury v. Madison, or maybe she never read about the trial of Aaron Burr, or the Jefferson-Marshall showdowns during the Jefferson presidency.
Times should try fact checking its op-eds.
The Republicans haven't engaged in court-packing only because they've already packed the courts.
Essentially every judge in the U.S. is a conservative - economic at least, and usually on social issues as well. Reagan appointed right-wingers, Bush Sr. appointed right-wingers, Clinton appointed moderate conservatives, and Bush Jr. has appointed right-wingers. The make-up of the Federal judiciary is conservative through and through. Obviously there's no need to pack the Supreme Court after Bush v. Gore - they already have a five-vote majority on the most important issue of the day.
Additionally, we see the Republicans talking about reorganizing the 9th Circuit, we saw them stalling for years on approving Clinton's appointments, and so on. All these are 'court-packing'.
So saying the Republicans haven't done it is simply wrong. They just haven't modified the Supreme Court justice count, and that was only because it wasn't necessary.
The Democrats are playing with two hands tied behind their back. At this point, they should do whatever they can to restore some semblance of liberality to the country.
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