Court-packing: Obama to succeed where FDR failed

In plain sight.

It’s sitting there as plain as the nose on your face.  The purpose of filleting the filibuster, Harry Reid’s latest contribution to the advance of mob rule, is to allow Barack Obama to pack the federal courts with ideologically sympathetic judges.

This is not a Tea Party allegation; it’s the conclusion of Mark 1-Mod 0 liberal-leaning staff writers at the major news organizations.  You’ve probably heard it yourself in the hours since Reid pushed the “nuclear” button yesterday:  “filibuster mumble mumble judiciary/justices/court mumble mumble” goes the standard media patter on the topic.  Outside of the industry-insider media in Washington, however, there is little emphasis on the specifics and meaning of the court-packing plan.

And other than on talk radio, there aren’t a lot of pundits clarifying what will be involved.  The average person’s imagination probably goes to the occasional nomination of a Supreme Court justice and the sometimes vicious fights over them in the Senate.  But where Obama will make his mark is on the federal district courts, for which justices are always being nominated and vetted.  And he will do it through the power of numbers and procedural rules: rules of a kind most Americans aren’t even aware of.  More on that in a moment.

FDR’s mistake, in 1937, was to attempt a reform of the judiciary through explicit frontal assault.  Obama isn’t proposing a wholesale reform, at least not right now.  His focus, for the moment, is on packing the D.C. Circuit Court, which hears an outsize share of federal-policy cases because of its location and purview.  FDR, by contrast, was encouraged by his landslide electoral victory in 1936 to simply go for broke in his quest to throttle the judicial branch, which had spent much of his first term striking down portions of the New Deal.

FDR’s court-packing plan has been described by numerous historians.  I quote here from Thomas Fleming’s 2001 book The New Dealers’ War, in which the telling is succinct and lively*:

Two weeks after FDR took his second oath of office and declared he had defeated the Depression but paradoxically still saw a third of the nation “ill housed, ill clothed, ill nourished,” he announced to his startled cabinet and the White House press corps his intention to reform the federal judiciary with a law that would permit him to appoint fifty new judges, including seven additional justices of the Supreme Court.  On the same day the bill was sent to Congress with blithe confidence in its immediate approval.

In 1937, FDR had a huge Democratic majority in both houses of Congress.  It wasn’t unreasonable for him to expect quick passage of whatever bill he might propose – even one described by Fleming thus:

Drawn in total secrecy by a handful of New Deal insiders, the bill was quintessential Roosevelt-the-trickster, full of bogus statistics about the Supreme Court justices and other federal judges being overworked and needing a WPA-like infusion of helping hands.

But FDR had misjudged his moment in more ways than one:

The Democratic majority that Roosevelt had created…was a strange hybrid, with drastically different views of political reality.  The yellow-dog Democrats of the South…were conservatives with no desire to change the established order… In the North new industrial unions were often led by radicals if not by outright Communists who viewed the southerners with barely disguised loathing.  Somewhere on the right of the middle were millions of northern ethnic voters…who suspected ideologues and disliked reformers almost as much as the southerners did.

The court-packing bill, as it was soon called, also collided with an almost mystic reverence for the Supreme Court that was deeply embedded in the psyche of the American people. … The mail to Congress was soon running ten to one against the president’s bill.

That was only the beginning of FDR’s woes.  Senator Burton K. Wheeler of Montana [a Democrat]…announced his unalterable opposition to the bill.  Wheeler was a bona fide liberal who had a long record of defending the rights of the people against the power of property, in particular the politicians who spoke for Montana’s giant copper companies.  He quickly drew other western liberals into his camp.  Southern Democrats, already unnerved by Roosevelt’s liberal rhetoric, defected virtually in a body. …

[T]he Democratic Party tore itself into chaotic shreds over the court-packing bill.  In spite of Roosevelt’s landslide and the seemingly unassailable support of two-thirds of the American electorate, a majority of the Democrats in Congress declared their distrust of Roosevelt’s charisma, his unpredictability, his arrogance.  They declined to give him the new power he was demanding. …

The Senate soon buried the plan, 70-20.

From one perspective, this is a study in contrasting approaches.  Where FDR mounted the battering ram and proposed to overtly transform the judiciary – forcing Congress to go along – Obama is relying on Reid to pave the way for a smaller, more insidious change, through a collateral action: a modification to Senate procedure.  The Obama-Reid approach is, at least in appearance, coordinated.  It’s indirect.

The two court-packing plans are also a study in contrasting circumstances.  FDR in 1937 had a supermajority in both houses of Congress – the last such majority any president has had.  (He lost it with big Republican gains in the 1938 election, and saw it steadily eroded thereafter.)  His landslide in 1936 had been of truly epic proportions: FDR defeated Alf Landon by 27,752,648 votes to 16,681,862, and 523 to 8 in the Electoral College.  Obama, on the other hand, comes off a much narrower popular-vote victory in 2012, and has a divided Congress in which Republicans made huge gains in 2010, gains they substantially retained in 2012.

Some other circumstances are different today.  One is the character of the Democratic Party.  It has no such meaningful divisions in it in 2013 as it had in 1937.  It has no such political breadth.  Divisions and breadth, in fact, are much more of a Republican Party issue today.  It’s on the Republican side that there is dissent, energy, a discussion of principle versus perceived electoral necessity.

Another different circumstance is the attitudes and expectations of the political environment.  Americans are more accustomed now to having changes in government presented to them as faits accomplis.  There is less of an outcry when the lash of regulation falls on the people; less interest from the media, less soaring, principled rhetoric from politicians of either party.  There may be a Ted Cruz on the Republican side (and he is lambasted by the leaders of his own party), but there is certainly no Burton K. Wheeler among the Democrats.

There are hundreds of thousands of policy items percolating through Washington every year, items that materially affect the people in their daily lives.  But the notice this parade receives is in inverse proportion to its impact.  In 2013, national government only rarely occurs as scheduled, show-up-and-take-your-seat dramatic performance, on an Aristotelian five-act model with a beginning and an end.  It has declined instead into a sort of perpetual street-theater, motley and rat-tailed: blocks and blocks of it on gray, teeming sidewalks, and it doesn’t even take a month off in the summer.

Today’s glazed-eyed political environment is especially conducive to the Obama-Reid approach.  FDR thought he could make genuinely grand imperial gestures; Obama proposes only to make small ones.   But the small ones matter.  Brad Plumer points out at Washington Post’s Wonk Blog that one key agenda Obama will advance through packing the D.C. Circuit Court is his environmental agenda.

Why do the “numbers” matter?  For an arcane reason relating to the work practices of the court.  (Shades of that FDR-era argument from bogus statistics about overworked courts.)  Here’s Plumer:

The court currently has eight full-time judges out of 11 possible seats. Half of those judges were appointed by Democratic presidents, half appointed by Republican presidents. There’s a twist though — any overflow in caseloads tends to get handled by six “senior” judges who work part-time. And five of those senior judges were appointed by Republicans.

That’s about to change. Obama has made one nomination so far — Sri Srinivasan, who was confirmed earlier this year. Now the president is expected to get three more nominees confirmed, which could sway the ideological make-up of the court. (Cases before the appeals court are often heard by three-judge panels.)

It’s classic Obama: bury the mechanism that matters under multiple layers of tangential, incremental procedural shifts.  You think Obama, the Democrats, and a cohort of Soros-funded “public interest” groups can arrange to create an overflow in caseload for the D.C. Circuit Court?  Yeah, me too.  But how many typical American voters have even followed me this far in understanding where the Harry Reid Filibuster Filet will lead?  It’s an intricate path.  Do you want to be the conservative pundit trying to explain to people how public-interest groups and their activist lawyers are overloading the D.C. Circuit Court so that Obama’s judges will be on the job when there are EPA-related cases?

It was so much easier to see what FDR was trying to do, back in 1937.  That was partly because of FDR’s hubris.  But it was also because there was so much less government woodwork to fade into back then.  Obama and Reid have learned their lesson well.  Time will tell whether they have picked their moment so.


* Thomas Fleming, The New Dealers’ War.  (New York: Basic Books. 2001), pp. 59-62

16 thoughts on “Court-packing: Obama to succeed where FDR failed”

    1. They have lifetime tenure, subject only to impeachment for misbehavior. They had to pry that useless Alcee Hastings out of his District Court judgeship in Florida with an impeachment trial (for taking bribes, as I recall).

      Naturally, Alcee is now distinguishing himself as a Obama-idolizing political hack Congressman.

  1. “Do you want to be the conservative pundit trying to explain to people how public-interest groups and their activist lawyers are…”

    Speaking of conservative pundits and activist lawyers, I was talking to Mark Steyn on Wednesday (yes, I actually had the honor of meeting him and having a brief one on one conversation with him) and I asked him if he thought the Michael Mann suit against him was simply a case of “lawfare,” where the intention of the plaintiff isn’t really to win the case but simply to bleed the defendant of hundreds of thousands of dollars. He said he thought it was. I also asked if he knew where Mann got the money from to pay for *his* lawyers – was he a wealthy man or was he being backed financially by some Soros like deep pockets. Steyn didn’t know.

    These activist lawyers and “lawfare” type plaintiffs in this country need to be cut off at the knees. Loser pays rules would go a long way towards that goal. Just about every other country has rules like this I understand. Time for America to get with the times.

    1. If the Democrats can pack the courts with life-tenured liberal ideologues, they will never lose their lawsuits, and never have to pay.

      1. Except there is one option that a newly elected, Republican President and Republican congress can do… And with Harry Reid’s little hypocrisy.

        Full disclosure: I don’t mind actually, I have long been an advocate for an exclusion of the Presidential appointment calendar from the filibuster. There needs to be a rational procedure for vetting and confirming appointments to both the executive and judicial branches that protects the minority… however the filibuster is not appropriate…) The Dems are the hypocrites because they opposed the 2005 Nuclear option move, when GWB had lined up a series of really fine Conservative appointments.

        You see I am an advocate of the principal that Elections have consequences, and the filibuster does too much to insulate the public from their stupid selfish choices in elected officials.

        Be that as it may, the Dems have been packing the courts for years and it’s high time to deal a final blow to the entire charade of Judicial temperament. The brutal reality is that the Democrats select and nominate judges totally on ideological and political grounds. Democrat judges must toe the party line, and enforce the party policy… period… no exceptions.. and clearing out the existing rats nest means one thing and one thing only.


        If I were elected and took the oath of office on January 20, 2017, my first official proposal to the newly filibuster proof senate, and solidly Republican house would be the Judicial Act of 2017.

        1. Abolish all current federal courts. Cold. You cannot be a judge with no bench.

        2. Establish a new federal court system with a circuit per state, a single appellate level established by population groupings, and then a very strict set of jurisdictional rules. (No room to discuss here)

        3. The supreme court would be reorganized to prevent charades and phony secret goings on. There would be a single Constitutional Circuit Court that served the trial and finder of fact that would try cases brought by the Solicitor General, or a designated Judicial Office within Congress, to deal with Constitutional issues. Supreme Court rulings would be strictly controlled, and the time between hearing and ruling reduced to weeks, not months and years. Justice delayed is justice denied, and the Court processes too few cases, and rules far too slowly.

        Now… there would be a series of Judicial Branch reforms that require Constitutional application, and for those – term limits on judicial appointments, jurisdictional limitations, and judicial review limitations. 2/3rds of Congress with a Presidential signature should be able to override Court decisions. In addition, 2/3rds of the State Legislatures should have the power to overturn germane Decisions as well.

        Also I’d disbar any lawyer from an Ivy League Law school, and fine an and all collisional, anti-competitive activities that encourage the current legal peerage that is destroying the concept of the Rule of Law. Some lawyers are more equal than others by virtue of the law school they attended, and this is unacceptable in a free society.

        Loser pays/Lawyer liable for half
        Elimination of Pain and Suffering – Compensatory damages only.
        Capitation of 10% on any contingent fees.
        Public judicial review boards for misconduct charges.

        stuff like that…

        Lawfare and settlement because of it, have played a major part in the destruction of the Tort System… time to change that too…

        1. I haven’t given it a lot of thought nor am I a Constitutional scholar but I suspect your solution would require a Constitutional amendment. Indeed, perhaps several.

          That’s not to say that much of what you suggest could not be accomplished within the framework of our current Constitution. Interesting approach but I would caution that ‘fire’ can burn the wielder as well as the desired object.

          1. The Judicial Branch is, indeed separate;however the courts, their configurations and existence are creatures of Congress and the President. Constitutionally there is only one judge, functionally the Chief Justice of the Supreme Court.

            Congress with a simple majority vote of both houses, and the president’s signature can abolish all courts, and actually re-write the configuration of the Supreme Court to a single person, the Chief Justice… and reconfigure a new court system.

            A Judge is appointed to a particular court, hence the need to reappoint for other courts… If their court no longer exists, they might be a judge by title, but have no court in which to rule, and therefore no jurisdiction anywhere.

            Funny thing, it’s a subject of some powerful Congressional debates in the early 19th Century.

            Judicial Acts are controversial, yes, but completely constitutional.


            1. I must confess to being initially doubtful and am surprised that some quick research reveals that you’re absolutely right! Constitutionally and thus legally, there’s nothing stopping a President with a majority in both Houses from doing exactly what you propose…

              To avoid any ‘blowback from the fire’ I would think after abolishing the judiciary and implementing a new system, passing a supermajority requirement to make further changes would be necessary, otherwise the dems could later do the same thing.

  2. What’s to complain about? This is democracy, as he often points out, Obama won. The Senate rules have been changed before and will perhaps be changed again. If some things that are taking place are illegal, then something will be done about it, right? The sacred judiciary, made up the graduates of law schools, what better group of guys to tell us how to live our lives? It’s obvious that this is OK or the voters would do something about it.

    1. obama himself is illegal, his changing things in the ACA is illegal, what he has the IRS doing is illegal – and NOTHING has been done.

  3. There’s a very simple solution. Drop the dreck, win Senate majority in 2014 (and drop the obscene support for challenges to McConnell who is a part of the solution rather than a problem) and put a full stop to any further O appellate appointments. Win White House through 2016 or if Ds manage a term in there, at least retain Senate and allow no further D appointments to DC circuit until at least 4 current D appointed judges retire. Legisltate aggressively to constrain administrative authority and capacity of courts to expend such. Don’t whine.

  4. Most troubling of all is the Senate republican’s acceptance of this charade. Not that they can stop it but they are not opposing this seizure of power by declaring it to be legally invalid.

    The Senate procedural rules are that it takes 60 votes to approve a nomination and a supermajority of 66 votes for a rules change. Reid and the democrats unilaterally declaring a rules change on a 52-48 vote is procedurally invalid and so are any appointments so made without a 60 vote approval. The Republicans should so declare.

    Thus, any federal justices appointed with less than 60 votes will be serving under false pretenses. Given that an appointee justice must be aware of this, any acceptance of the office without the requisite 60 votes is corruption and malfeasance of office because they are colluding in the accepting of the offices recompense (money, status and power) under false pretenses. The democrats have created a Constitutional crisis and given that its aim is to pack the Federal judiciary, the SCOTUS clearly has jurisdiction.

    A Republican President would have the legal jurisdiction to invalidate those appointments because the executive branch has the enforcement authority when elected officials [senate democrats] are guilty of corruption and malfeasance in office. Neither corruption nor malfeasance are necessarily monetary in nature.

  5. What’s to stop Reid & Co from changing the filibuster rules back to the way they were in December 2014 as lame duck Senators? If the Republicans do well in November 2014 and are poised to be a majority in the Senate in January 2015, would Reid & Co have the nerve to do such a thing?

    1. I think they’ve demonstrated the requisite ruthlessness when it is to their advantage. But what would prevent the Republicans from changing back to a straight line vote in Jan of 2015? That is, other than my argument above.

  6. Considering everything that is going down here in this formerly great country, I submit that you need to change the name of your blog. I can no longer relate to the word ‘Optimistic”.

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