Court-Packing Is Not New. Republicans Have Been Trying To Do It For Years.
Republicans were appalled at the idea that the Democrats might try to add more judges to the Supreme Court.
The idea gained increasing support in Democratic circles after Senate Majority Leader Mitch McConnell (R-Ky.) Refused to vote on President Barack Obama's Supreme Court candidate after Antonin Scalia's death. McConnell argued it was just too close to election for such a big move. Donald Trump won and the Democrats felt betrayed by a court seat.
But talk of trying to grab the court resumed after McConnell stormed through Amy Coney Barrett, Trump's candidate to replace Liberal icon Ruth Bader Ginsburg - though it's even closer to the election than when he was nominated Merrick Garland by Obama in 2016.
"[Y] our party openly advocates adding seats to the Supreme Court, which has had nine seats for 150 years, if you don't get your way. This is a classic case: if you can't win by the rules, you become the rules change, ”Vice President Mike Pence said to Senator Kamala Harris (California) during the Vice Presidential debate on Wednesday.
Democratic presidential candidate Joe Biden has refused to take a firm stand on the trial. He said people would "know my opinion on the trial when the elections are over".
Pence shouldn't be so outraged. His party has been trying for years to resize the courts at both state and federal levels.
According to a new study by Duke University professor of law Marin K. Levy, there have been at least 20 bills in the past decade to increase or decrease the size of the Supreme Courts in 11 states. The vast majority of them were from Republicans, and attempts have increased compared to decades ago.
Lawmakers in Arizona, Georgia, Florida, Iowa, South Carolina, and Louisiana have all tried to add judges, while Montana, Oklahoma, Washington, Alabama, and Pennsylvania have tried to remove some. Republicans have driven change in all of these states for the past decade, save for Democratic bills in Louisiana and Alabama. (The Pennsylvania and Alabama cases were less clear about whether the motivations were biased.)
"The most recognizable pattern is also the one that should come as the least surprise: it appears that various elected officials pushed for changes to their Supreme Court if it was in their political interests," wrote Levy.
Two of these attempts in Arizona and Georgia were successful. In both cases, the GOP controlled the legislature and the GOP governor had significant powers to appoint the judges he wanted to court.
In many of the cases Levy examined, the party political reasons for changing the size of the court were clearly stated.
In 2011, Republicans controlled the Montana state legislature while a Democrat was the governor. Legislators attempted to "unpack" the state's Supreme Court by reducing the number of judges from seven to five and removing the seats from two of the most liberal members.
The GOP sponsor of the unpacking bill said its goal was to make it more difficult for victims to claim damages.
“So how do we get to reforming the crime? I would suggest that if we take the Supreme Court from 7 to 5, they have a higher workload, guess who will become our ally in crime reform? The Supreme Court, ”said then MP Derek Skees.
In other cases, the change in the size of the state's highest court came after a decision displeased by the party in control of the legislature. In 2009, the Iowa Supreme Court passed state law prohibiting same-sex marriage. In response, a Republican legislature introduced a bill to increase the number of judges. (It didn't go anywhere because the Democrats controlled the legislature and governorship.)
Levy told HuffPost that Republicans had more options to pack and unpack in court than Democrats.
"During the period I studied - the last decade - there were more Republican-controlled state legislatures in all but one year (2010)," she said. "And in most years there were two or three times as many states with republican-controlled legislatures as democratically controlled ones."
But she added, “There is compelling evidence that federal Republicans have played constitutional hardball more often and intensely than Democrats. It is possible that we are seeing similar dynamics at the state level. "
In 2017 then-Sen. Jeff Flake (Ariz.) - who was seen as a moderate Republican - tried to dissolve the traditionally liberal US 9th Court of Appeals. He argued that the number of cases had grown too large, even though the 9th Circle Chief Justice said the size of the court had nothing to do with productivity.
"These efforts have nothing to do with case numbers," said Senator Dianne Feinstein (D-Calif.) In a statement at the time. “In fact, splitting the 9th circuit would be an enormous waste of taxpayers' money. The simple fact is that calls from President Trump and the Senate Republicans to share the 9th circuit are simply a political response to decisions they don't like. "
And in 2013, Senator Charles Grassley (R-Iowa) tried the DC Circuit's appeals court - considered the second most powerful court in the country - to strip three of its seats to prevent Obama from filling the vacancies. Grassley argued that the court was not busy enough to justify 11 judges. However, Republicans pushed for any vacant position in the court during President George W. Bush's tenure when the court was still lower.
Nothing in the constitution stipulates nine Supreme Court justices. The Judicial Act of 1789 originally set the number of judges at six. President Franklin Delano Roosevelt was famous for trying to grab the court, but it was done elsewhere for partisan purposes as well. In 1863, Congress actually expanded the Supreme Court to 10, which Levy said "was a move that allowed President Abraham Lincoln to positively put the Court on the Republican agenda at that time".
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This article originally appeared on HuffPost and has been updated.
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