Courts

This Poll Should End All The 'Court Packing' Talk But Probably Won't

It may thrill liberals to seek vengeance but there's value in thinking long-term.

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The U.S. Capitol (photo by David Lat).

A major pet peeve of legal historians is the casual use of the term “court packing.” Pundits enjoy tossing around the phrase for the Trump administration’s successful confirmation of Fed Soc zygotes to lifetime appointments — qualifications or ties to hate groups be damned! — but is that really court packing? Legal nerds will say “no” because it doesn’t precisely track the New Deal era proposal to expand the courts for the explicit purpose of tilting its ideological bent.

But is it fair to limit the concept to one historical example? When Mitch McConnell blocked federal judicial appointments writ large for two years to create the backlog that Trump’s minions are filling today, wasn’t that functionally no different than cutting down the size of the federal judiciary and then expanding it? On a practical level, this is no different than what FDR sought out to do, except McConnell’s been successful at it.

This trend has inspired some hot takes encouraging Democrats to embrace retaliatory court packing — something more directly akin to FDR’s plan — expanding the courts to counter-balance Trump’s term in office. It’s likely a futile proposal as the odds of McConnell losing his grip on the Senate is relatively low, which would prevent this legislation much less the confirmation of any judges under it.

It’s also a careless proposal for Democrats to rally around because McConnell traffics in blunt force hypocrisy and will have no problem branding this a gross constitutional overreach before gleefully embracing it once the tables are turned.

Those of you who listen regularly to the podcast have heard me make this case before, but McConnell cannot be bested by proposing the flip side of the coin. He was opposed to ending the filibuster for judicial confirmations… Democrats ill-advisedly ended the filibuster… he’s now running roughshod without a filibuster check. The conviction that court packing would not end the exact same way is incredibly naive.

McConnell thrives in a two-dimensional power struggle. His only vulnerability is to a plan that fundamentally changes the playing field. What if the filibuster was maintained… but required Senators to actually filibuster à la Mr. Smith Goes To Washington instead of declaring a filibuster by fiat? Change the rules, don’t flip them.

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Which brings us around to a proposal that’s been kicking around for years now — imposing term limits upon federal judges. To avoid constitutional problems, this reform would essentially require judges to take on senior status after 18 years, allowing them to remain on the bench at the same salary even, but opening up a new vacancy on a routine basis to end the macabre practice of nominating thirtysomething judges to lock down the judiciary for decades.

It’s a change that isn’t gameable because it’s fundamentally fair. That also makes its passage fundamentally realistic.

As Fix The Court notes, a recent Rasmussen poll finds that only 27 percent of respondents favor adding justices to the Supreme Court — and presumably the lower courts — while 55 percent opposed. Meanwhile, in the same poll, 54 percent of respondents support a term limits proposal. Even Justice Breyer is on board with an 18-year term limit.

Back in 2015, when the idea of Donald Trump winning the White House was hardly taken seriously, I started questioning left-leaning activists whether or not it might be a smart move to join Ted Cruz and some hard-line conservatives in supporting term limits. At the time, the idea seemed more valuable for the purpose of opening up the judiciary to a bigger talent pool — and potentially diversity — by manufacturing some more turnover and reducing the stakes of blocking any one specific opening, but blunting the impact of a 2016 defeat would have been a nice fringe benefit for them.

Can this finally put an end to this trope? Could reading the writing on the wall finally convince liberals to throw their efforts behind something that will actually pass rather than keep hammering away on court packing?

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Probably not. Unfortunately, “he has a hammer, we should have a bigger hammer” is a viscerally satisfying contention in a country that runs on instant gratification. But one can dream.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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