by Mitch Kokai
Senior Political Analyst, John Locke Foundation
In the face of Judge Amy Coney Barrett’s seemingly inevitable confirmation to the Supreme Court, leading Democrats are offering a novel definition of “court packing” as many party faithful push for adding justices to the Court.
This new Democratic rhetoric charges that Republicans have effectively been packing the courts for years through procedural gamesmanship. Adding new judgeships would return a nonpartisan balance to the judiciary, the Democrats say.
A once-fringe group of activists and intellectuals began agitating for major judicial reforms after Justice Brett Kavanaugh’s confirmation, making these precise arguments. A June memo that environmental and civil rights groups circulated to Democrats and progressive allies summarized those views.
Speaking Monday morning on MSNBC, Senate Minority Leader Chuck Schumer (D., N.Y.) said Republicans have effectively been packing the courts for years by holding open seats that President Donald Trump eventually filled, most notably Justice Antonin Scalia’s on the Supreme Court.
Senate Republicans also held open dozens of vacancies on the lower federal courts after assuming control of the chamber in 2014, he said. Some of those vacancies were on the Fifth U.S. Circuit Court of Appeals, the federal court that struck down a portion of the Affordable Care Act in January.
“The Fifth Circuit, the very circuit that decided to get rid of the ACA, they held back … all these [vacancies] when Obama was there, and then they appointed right-wingers,” Schumer said. “This idea that Democrats are packing the Court—[Republicans] have already done it.” …
… Other lawmakers, such as Sen. Elizabeth Warren (D., Mass.), argue that reforming the High Court by adding seats or term limits would actually depoliticize the institution. …
… Kavanaugh’s confirmation seeded the court-packing discourse. Harvard Law School professors Laurence Tribe and Mark Tushnet lent gravitas to the effort, joining the board of a pro-expansion group called Take Back the Court.