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Column: Not ‘court-packing,' GOP's aim is ‘court-shrinking'

By Jeff Shesol

The party that brought you "death panels" and "socialized medicine" has rolled out another term — carefully selected, like the others, for its power to freak people out. "Court-packing" now joins a Republican rogue's gallery of poll-tested epithets.

Of course, "court-packing" is not a new term, and its menacing overtone is not a recent discovery. "There is a good deal of prejudice against ‘packing the court,'" observed Homer Cummings, the U.S. attorney general, in 1936, on the eve of President Franklin D. Roosevelt's failed attempt to do just that — to tip the Supreme Court's balance by increasing the number of seats and filling them with New Dealers. Cummings, who sold the idea to FDR, hoped Americans would not be "frightened by a phrase."

But they were. And today's GOP is betting they still are. Hence the resort to a term that has no valid application to the matter at hand: President Barack Obama's determination to fill the three vacant seats on the U.S. Court of Appeals for the D.C. Circuit.

Republicans have been sounding the alarm since the spring, with increasing volume. Senator Ted Cruz (R-Tx.), among others, accuses Obama of harboring "a desire to pack the court." The Wall Street Journal editorial board is also invoking the p-word — insisting they are shocked, shocked that the president would think of exercising his power under Article II, Section 2 of the Constitution to appoint judges.

Both House and Senate Republicans have now introduced bills to stop Obama by simply eliminating the seats he wishes to fill. They are seeking to reduce the size of the D.C. Circuit from 11 judges to eight. This court is a target for conservatives for two reasons: First, because of its primary role in regulatory and national security cases, and second, because another Obama appointment (never mind three) would put the court's Republican appointees in the minority.

Call the Republican approach "court-shrinking" — court-packing in reverse. Court-shrinking, too, has a shameful history. And court-shrinking, more than court-packing, is a phrase that really is frightening.

The threat has existed since the beginning of the republic. The buck, it must be said, stops with the Framers of the Constitution. In their wisdom — or out of negligence — the Framers left the number of Supreme Court justices and other federal judges up to Congress. The size of the judiciary can be changed, as Woodrow Wilson wrote, "whenever the legislative will so pleases."

Through most of the 19th century, Congress frequently expanded and contracted the Supreme Court — usually as part of a struggle for supremacy between the legislative and executive branches. Where presidents (James Madison, James Monroe and Andrew Jackson among them) wanted to add judges, in the hope of appointing allies to the bench, members of Congress sought to do — and often did — the opposite.

In 1866, for example, when President Andrew Johnson tried to fill an open seat on the court, Congress responded by eliminating the seat — and, pending further retirements, another two seats as well. The Judicial Circuits Act of 1866 not only shrunk the Supreme Court from 10 to seven, but reduced the number of circuits from 10 to nine, part of a Republican effort to limit the Southern presence in the federal government.

FDR, too, aimed to alter the ideological balance of the judiciary when, in 1937, he launched his bid to increase the number of justices from nine — where it had sat since 1869. Roosevelt would happily have shrunk the court if that would have rid the bench of its conservative members — who had been waging an insistent legal struggle against the New Deal, overturning the National Recovery Act, the Agricultural Adjustment Act and other key programs.

But shrinking the court is a strategy of attrition, and Roosevelt felt that waiting for justices to retire would risk, in the interim, an economic collapse that would make the Great Depression look like a warm-up act. The court-packing plan was born of these concerns, and then sold on false premises — as an innocuous opportunity to lighten the burden on the existing justices by appointing six more to share the load.

What these examples make clear is that court-shrinking and court-packing are two sides of the same coin: Both manipulate the size of the judiciary to force a shift in its direction.

Just don't expect the practitioners of either to admit what they're doing. In an unknowing echo of FDR, Republicans in Congress are couching their ideological agenda in a sudden interest in judicial administration. In 1937, Roosevelt said "efficiency" required more judges; in 2013, Republicans insist the D.C. Circuit would be more efficient with fewer. That claim, based on a willful misconception of the D.C. Circuit's role and docket, has been thoroughly debunked.

The contention that Obama is engaged in court-packing is also easy to dismiss. There is an obvious difference between filling an empty seat and creating a seat for the purpose of filling it. No president can do the latter without an act of Congress.

That, in the end, is what doomed Roosevelt's plan — the refusal of Congress to pass his court-packing bill.

Court-shrinking, however, can be done on the sly, which makes it the greater danger. Congress can't reduce the prescribed number of judges on the D.C. Circuit without passing legislation. But the GOP can keep those three seats empty without going to the trouble. It simply has to block, hold, filibuster or otherwise obstruct the president's nominees — just as it is now doing. The D.C. Circuit has, in effect, already been shrunk. Republicans merely need to keep it that way.

It's imperative, then, that Obama keep up the pressure — that he nominate qualified judges, re-nominate them if necessary and make insistently clear that he is doing exactly what presidents are supposed to do. The appointment power, after all, is not just a constitutional prerogative, but a constitutional responsibility.

If that fails, Obama should go over the heads of Congress to the people. The British historian and legal scholar James Bryce, writing in the 1880s about the dangers of manipulating the size of the courts, observed, "nothing but the fear of the people" could prevent a president or Congress from "such a perversion" of the Constitution.

"To the people," Bryce wrote, "we come sooner or later: It is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of government will in the last resort depend."

Let's hope it's sooner. We know what they say about justice delayed.

(The views expressed here are author's own.)

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