That Term Most Definitely Does not Mean what you Think it Means

Filling normal vacancies on the bench is not "packing the court."

Or, to be more accurate:  that terms you are cynically misusing doesn’t mean that, and you know it.

In regards to the Obama administration seeking to fill vacancies on the DC Circuit Court of Appeals, Senator Chuck Grassley (R-IA)accused the administration of attempting to “pack the court.”

See Wonkblog:  Sorry, Chuck Grassley. Obama isn’t ‘packing the court.

Of course, “packing the court” means an attempt to appoint judges to position that do not exist, as President Roosevelt attempted to do to the Supreme Court.  Such a move is considered to be a questionable, if not illegitimate,* power play by a president. It is amazingly cynical, not to mention blatantly dishonest, to associate filling existing vacancies with a practice of trying to add new seats to the bench, especially since “court packing” has a decidedly negative connotation in American politics.  This smacks of Frank Luntz-esque messaging.

Indeed, this seems to have become the new formulation, for example:

The WSJPacking the D.C. Circuit (subtitled:  “Obama prepares to flood an appellate court with judges it doesn’t need”).

CommentaryCan Obama Pack the Courts With Liberals?

More examples via HuffPo:**

“During floor remarks last week, Senate Minority Leader Mitch McConnell (R-Ky.) accused Democrats of plotting with the White House “to pack the D.C. Circuit with appointees,” and Sen. Mike Lee (R-Utah) worried aloud that Democrats may “decide to play politics and seek — without any legitimate justification — to pack the D.C. Circuit with unneeded judges simply in order to advance a partisan agenda.”

On the one hand, the notion that politicians and their allies would seek to use language to their advantage is just as shocking as finding gambling in Rick’s.  On the other, there is something especially brazen about being the party that has blocked the regular, constitutional business of holding votes on judicial nominees, and thereby causing irregular (and numerous) vacancies on those courts, and then turning around and stating an attempt to fill those vacancies is “packing” the court.

This is part of an ongoing attempt to upturn established institutions and reasonable electoral expectations, including the notion that a president has the constitutional right to make nominations to fill judicial vacancies and that it is wholly reasonable, if not endemic, to “advise and consent” that there be a floor vote on nominees.

Now the goal appears to be to simply cut those seats from the court.  This is, I will note, a fully constitutional move, although I have a hard time thinking it will go anywhere (and, indeed, it is, in my estimation, a cynical attempt to try and make it seem as if the obstructionism on the nominees was nothing more than trying to avoid filling unneeded seats, rather than a political power play).  Via NPR:  Senators Tussle Over Proposal To ‘Unpack’ Key D.C. Court

“The legislation is very straightforward,” Grassley said at a Senate Judiciary hearing last month. “It would add a seat to the 2nd and the 11th Circuit. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to eight.”

Speaking of political language, the bill is called the “Court Efficiency Act.”

h/t for video:  The Reaction.

*Although, technically, there is no constitutional reason that a president couldn’t try such a move, especially to the Supreme Court, since there is no set number of Justices, nor does Article III have any mechanism to determine that number.  Arguably, such a maneuver could not be attempted regarding a lower court, since Article III gives Congress the power to create and regulation those entities.

**Updated after original posting.

FILED UNDER: Congress, US Politics, , , , , , , , , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. LaMont says:

    There you have it. The GOP taking obstructionism to yet a new level! Fifty years from now, those on the left and right will look back at this time and agree that this represents one of the lowest moments in congressional history.

  2. To be accurate, the size of the Supreme Court is also something that is within Congressional purview, not something the President can do on his own. That’s why FDR needed to get his plan to increase the size of SCOTUS through the Court. When even his own party resisted the idea, he abandoned the plan.

  3. Sam Malone says:

    Chuck Grassley should join Michelle Bachmann in her ignominious fade from public life.
    This guy has been sucking on the Government teet since January of 1959.
    53 years of being a taker, and not maker.
    Go away, already you old fool.

  4. @Doug Mataconis: Indeed, yes, My point was simply that I can see no constitutional prohibition to stop a president from attempting additional appointments to SCOTUS. However, since Congress sets the numbers for all the other courts, that is a different issue.

  5. Caj says:

    God forbid President Obama should appoint left leaning judges! Of course that never happens under a Republican President where they appoint right leaning judges! Everything in a Republican world is fine when they can do, say, appoint who they like but it’s totally unjust and can’t be tolerated when a Democrat is in power! Not only are Republicans the party of no, they are the party of no sense!

  6. stonetools says:

    Finally! Obama is making a concerted attempt to appoint judges to the federal bench and maybe pick a fight over the filibuster, so the Republican are going into full wingnut conspiracy theory newspeak mode.

    Even Stevie Wonder, though, can see the difference between filling existing vacancies and expanding the number of seats on the Court. I pray the Democrats don’t screw up what should be a messaging slam dunk, but I’ve seen the Democrats do precisely that too many times, so I’m not hopeful….

  7. Rafer Janders says:

    “I don’t know what you mean by ‘glory,’ ” Alice said.

    Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”

    “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

  8. Robert Levine says:

    The last time the DC Circuit had vacancies, Grassley thought the court was just the right size and voted to confirm the nominees for those vacancies. Of course those had been nominated by a Republican president.

    What bothers me most about politicians (of all stripes) is their assumption that the public has the memory span of goldfish. What bothers me most about the public is that often the politicians are right.

  9. Mikey says:

    Blast from the past–December of 2002, to be exact:
    Do We Have to Worry About George W. Bush Packing the Courts?

    President George W. Bush plans to “pack” the federal courts with conservatives. Or so say a growing list of important people: Senators Charles Schumer and Patrick Leahy, Representatives Elijah Cummings and Anthony Weiner, Yale Law’s Bruce Ackerman, and legal commentators John Dean and Edward Lazarus.

  10. @Mikey: A fair point. It would be nice if people would use words properly, but they frequently do not.

  11. Moosebreath says:

    @Robert Levine:

    “The last time the DC Circuit had vacancies, Grassley thought the court was just the right size and voted to confirm the nominees for those vacancies.”

    The last time the DC Circuit had vacancies, Grassley thought the nuclear option was necessary to get them filled, which led to the confirmation of Janice Rogers Brown, Brett Kavanaugh and Thomas Griffith.

  12. Mikey says:

    @Steven L. Taylor: You should see what Jenos and Alessandra are trying to do with “pedophilia” over in the Kaitlyn Hunt thread.

    On the other hand, don’t go over there unless you have some eye bleach and a Brillo pad for your brain. It’s awful.

  13. Rick DeMent says:

    Less packing the court as it is “unpacking” from the last administration. Tell me again why Democrats should not have been vigorously opposing obvious ideologues for nomination to the court during the Bush administration when when they are now opposing anyone who is within spitting distance of the center.

  14. Andre Kenji says:

    In fact, Obama´s inability to nominate and then confirm good Liberal judges to the courts is one of his greatest political failures.

  15. Rick DeMent says:

    @Andre Kenji:

    Had Democrats been acting like the Republicans are now he wouldn’t have been able to nominate his picks either. This is less a failure of leadership as it is total obstruction by the GOP.

  16. Tyrell says:

    We could avoid all of this hassle by having these judges elected by the voters.

  17. @Tyrell: Oh great, another conservative that supports a position in direct contradiction with our founding fathers.

    I don’t have to start quoting Hamilton, do I?

  18. Andre Kenji says: