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