In today’s America, we the people are not supporting the fundamentals of our system of government. That would seem like the bare minimum for America to continue to exist. So let’s look at an issue of the day and see if it gives us any insight. How has court-packing become a serious discussion topic?
Packing the court is changing the number of justices on the Supreme Court of the United States (SCOTUS). Packing could also extend through the federal courts. Taking action to pack the courts destroys the independence of the judiciary. That is obvious.
What may be less obvious is its impact on the legislative branch. The way that the U.S. Senate has participated in the legislative process for more than 200 years may be altered. That is a reason why control of the Senate will determine whether these fundamentals stay or go.
Those pesky founders
Our nation’s founders gave us a system keeping the judiciary independent from political manipulation. Their belief was independence of the judiciary from the political is “essential.” The design of their kind of government requires it. In the Declaration of Independence, it’s listed among the reasons why we split from Great Britain. It is something making our judiciary the envy of many.
A mark of the level of independence of the American judiciary is our judges choose when to retire. Presidents cannot serve for more than two years of an unexpired term, plus two full terms. Federal judges serve for an average of more than twice as long. Presidents can fill vacancies, but judges determine when those vacancies occur.
“Court-packing” means vacancies would occur when Congress creates new judicial positions. A president of the majority party can immediately fill. Court-packing would be like a hostile takeover of the judiciary. Doing so makes the judiciary a tool of the political branches. It works against the independence of the judiciary from the legislative branch. It appears Leftists prefer a parliamentary system rather than our constitutional separation of powers.
Court-packing is not a new idea. In 1937 President Franklin Roosevelt proposed such a scheme. He thought it would sail through Congress. Democrats had huge Senate and House majorities. But those Democrats resisted the temptation to manipulate the judiciary for political purposes.
A bad idea whose time has come … again
Back then even the American Bar Association (ABA) was in opposition to the idea. The ABA said this threat to judicial independence had drawn a stronger reaction than any issue since the Civil War. We got lucky and dodged the bullet. Pack it in your court; that’s what you do when you hate your country.
The House of Representatives is designed for action. A simple majority can do whatever it chooses. The Senate is designed for deliberation. Originally its members represented the states not the electorate. A simple majority can pass a bill however Senate rules first require a supermajority to end debate.
Both parties use this to their advantage in preventing or improving legislation along the way. It is literally the single most distinctive feature of the Senate. The removal of this feature is required to enact a court-packing scheme.
Today court-packing legislation would run headlong into a Senate filibuster. Passing that legislation requires changing Senate rules. Doing so will grease the legislative skids. A simple majority could always get its way if the filibuster were eliminated.
Is AOC the new Franklin, Jefferson, Madison, Hamilton?
The Founders wanted to keep the judiciary independent from political manipulation. They also made the Senate separate and different from the House, with different terms, rules of order and representation. Extended debate has been the practice since the turn of the 19th century.
Court-packing today puts not just one, but two branches of government at risk. This is part of the Legislative branch’s attempt to force our government into a parliamentary system. This, if successful will make the judicial and executive branches subordinate to the legislative branch. Pack it in your court; that’s what you do when you hate your country.
Our system of government provides the liberty Americans have been able to enjoy for over 240 years. That happens by design, not by accident. Any representative of the people official or candidate or for office should reject schemes like court-packing. This is true regardless of party.
People who claim to believe in the American constitutional system should work with in our system. All who do not do so attack seek to undermine our constitutional republic. Congress must put principle over politics. They must put the people before Party. We must be resolute today when two branches hang in the balance.