In its current context with respect to the Supreme Court, court packing involves increasing the number of Supreme Court justices to offset any majority achieved on the court by the previous administration. The new administration would simply add as many new justices as needed, appointing justices to these new seats whose political position agrees with that of the administration. It has nothing to do with the normal appointments that come up during the term of a sitting President.
The Constitution of the United States, Article 2 Section 2, clearly provides for the President to appoint (with the advice and consent of the Senate) Supreme Court justices. Nowhere in the Constitution does it limit this power to non-election years. Appointing a Supreme Court justice in an election year is no more “packing” the court than at any other time in the President’s term – no matter what the opposition says. It’s just the luck of the draw; sometimes the dice will favor Republicans, sometimes Democrats, and sometimes neither. So why all the fervor over this latest Trump appointment?
Normally, a Supreme Court appointment during an election year would not be much of an issue, since filibuster rules all but required a consensus of at least 60% of Senators for Supreme Court appointments. Only that rule no longer exists; it was eliminated as the result of a chain of events beginning with Obamacare and ending with Republicans gaining the Presidency and control of the Senate. Let me elaborate…
If you will remember, it was Obama’s desire to push the lower courts to the left that drove Senate Democrat Harry Reid to eliminate the filibuster for judicial appointments (with the exception of those for the Supreme Court). This led Mitch McConnell to retaliate when Republicans gained control of the Senate by eliminating the filibuster for Supreme Court justices. Now the Democrats are proposing that they expand the supreme court if they win both the Presidency and the Senate so that they can add enough liberal judges to offset any conservative majority that may have been created under the current Republican administration. But what’s to keep the Republicans from doing the same once they again are in power? Here’s a question for our politicians: When will it end?
Now, to be fair, Harry Reid blames Republicans for his elimination of the filibuster for lower court appointments. His argument is that senate Republicans filibustered anything that moved after the midterm election gave them the ability, bringing judicial appointments to a standstill. But why do you think Republicans were so moved to stymie the Obama administration? Could it possibly be because the Democrats had just pushed through Obamacare over the intense objection of Republicans? A law steeped in secrecy (“…we have to pass the bill so that you can find out what is in it…”) and forced through on a party-line vote? Could this be the match that lit the fire now threatening to burn down Congress?
I bring this all up to demonstrate a point: that it is the lack of consensus – not the requirement for consensus brought about by the filibuster – that is at the root of our problems in Congress. When one side forces a bill or law through by the slimmest majority simply because they can (particularly a massive increase in our nation’s public welfare obligation), without any regard whatsoever for the opposition, animosity is the result. And this animosity festers – among both parties – until it boils over into the legislative gridlock we now suffer, with each side utilizing more and more drastic methods to achieve their goals. I ask again: when will it end?
Not a fan of suspense? OK, I’ll tell you: when we restore the filibuster – and the consensus it brings – to our legislative system. The answer is not to eliminate the filibuster, as proposed by some, so that no consensus is ever again required to push through a one-sided agenda; no, instead it is to restore the filibuster to its rightful glory (a la “Mr. Smith goes to Washington”). When a consensus is once again required in Congress, sanity will return.
So how do we make this happen? It’s simple: we refuse to vote for any candidate (regardless of party) who will not publicly support restoring the filibuster (or who threatens to “pack” the supreme court). Force them to reveal their intentions (including Biden and Harris, who have openly refused to state their position on this matter), and if they won’t then pick another candidate. The power truly remains with the people on this matter; all we have to do is vote accordingly.
Only when the filibuster – and sanity – is restored to our legislative system will we be able to move beyond the current state of affairs in Congress.