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SPOTLIGHT
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Court packing and unpacking

Published on -11/6/2013, 9:24 AM

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Back in 1937, then-President Franklin D. Roosevelt, frustrated with decisions of the Supreme Court majority blocking critical aspects of his New Deal program, announced that he would seek to expand the court to as many as 15 justices. Under the bill he proposed, the president would have the authority to appoint one new justice for every justice who was older than 70 years and 6 months -- up to a total of six new justices.

The legislation ultimately failed. One reason often cited was the "switch in time that saved nine" -- the decision by Justice Owen Roberts to vote with the pro-New Deal block for the first time and uphold the minimum-wage law passed by the state of Washington. But equally important was the fact that as popular as Roosevelt was, the public did not support "court packing" in order to achieve ideological support.

All of this makes the latest Republican attacks on "court packing" particularly ironic. President Obama is not seeking to expand the size of the United States Court of Appeals for the D.C. Circuit, long considered the second most important court in the land. There are supposed to be 11 judges on that court; presently, there are only eight, with three vacancies.

Rather, it is the Republicans who are seeking to change the size of the court to prevent the president from appointing highly qualified individuals to serve.

"It's clear they're trying to pack the D.C. court," said Sen. Orrin Hatch, a Republican member of the Judiciary Committee. Sen. John Cornyn, a Texas Republican, made the same point in an opinion piece on FoxNews.com: "Republicans should remain united in blocking Senate Majority Leader Harry Reid's attempt to pack the D.C. Circuit Court of Appeals, which is America's second-most-influential judicial body."

Filling vacancies with highly qualified individuals is not court packing. Changing the size of a court for ideological reasons is.

And so it was on Thursday that, by a vote of 55 to 38, Republican senators blocked the nomination of Patricia Ann Millett to the United States Court of Appeals for the D.C. Circuit.

Just to be clear, 55 senators voted to move forward with her nomination, but that was five votes short of the number needed to end the Republican filibuster.

Just to be clear, no one even suggested that Millett, a leading appellate attorney, a veteran of the Justice Department and former assistant solicitor general, was unqualified for the position. To be honest, it's hard to imagine how you could be any more qualified. When her name was being considered for an appeals court in Virginia, the bar found her to be well qualified.

What happened last week is that Millett became a pawn in a game that has nothing to do with qualifications or the rule of law and everything to do with the sort of politics that the country rejected when it was FDR trying to pull it off.

The Republicans, while misusing the terms "court packing," make no bones about this fight being purely political. Right now, there are four Republican appointees on the D.C. circuit and four Democratic appointees. Republicans want to keep it that way.

Of course, if they won the presidency, they would want to fill those vacant seats. But because they lost, all of a sudden, the court is too big.

There are currently five Republican appointees on the Supreme Court and four Democratic appointees. Honestly, I'd like to see more Democratic appointees. But that's what elections are about.

The Founding Fathers were pretty wise men. They created a Constitution with checks and balances, with three branches of government, including an independent judiciary. The winning candidate for president gets to appoint judges. The job of the Senate should be to ensure that those nominees are qualified, not to play numbers games in an effort to impose their ideological will on the court. Thursday might look like a victory for Republicans, but it is a defeat for anyone who cares about the rule of law.

Susan Estrich is a columnist, commentator and law and political science professor at USC.

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