What Exactly Is "Court-Packing"?

High ranking Democrats have repeatedly threatened to "pack" the Supreme Court if they regain the White House and the Senate, and Joe Biden and Kamala Harris have repeatedly refused to say whether they'd go along with such a move if they were to take office in January.

Biden, feeling pressure to say something about his stance on this issue, recently mumbled that he's not a fan of court packing, which was about as tepid and non-committal an answer as one could imagine.

Democrats prefer to change the subject when the matter of court packing is brought up and one way they're doing this is by changing the meaning of the term.

The phrase "packing the court" refers to a gambit undertaken by Franklin Delano Roosevelt, when an uncooperative Supreme Court was stifling his presidential initiatives on the grounds that they were unconstitutional. Roosevelt threatened that he would appoint up to six more Justices to the Court (the Constitution doesn't specify the number of Justices) and that these would be Justices more amenable to the president's wishes.

By increasing the number of Justices, people who would serve for the rest of their lives, from nine to fifteen Roosevelt and the Democrats hoped to do an end run around the Constitution and the legislature and have their way politically for generations.

Roosevelt never carried out his threat, but now that President Trump is filling vacancies with Justices who esteem the Constitution and who believe that the proper role of courts is not to make law but to interpret it, the Democrats are in a panic and are pledging to do what FDR only threatened.

They realize, however, that it might look bad with the voters prior to the election to explicitly promise to destabilize the country in this fashion, so Biden and Harris are refusing to talk about it, offering instead the lame excuse that if they said what they'd do then that would become the issue, which, of course, it would and should.

Mr. Biden even declared that the voters "don't deserve" to know what he'd do before the election and that he'd deign tell us what he'll do after he's elected, a statement as full of arrogance and contempt for the American people as Speaker Pelosi's claim during the Obama administration that if Congress wanted to know what was in the Obamacare bill the House would have to pass it to find out.

A more brazen tactic emerging in recent days is to redefine what's meant by "court packing." Vice-Presidential candidate Kamala Harris led the way on this as Gerard Baker at the Wall Street Journal observes:

Sen. Kamala Harris rolled out the first try at a new defense last week when Vice President Mike Pence (rather than, say, the moderator) challenged her to justify the [court packing] proposal.

“Let’s talk about packing the court then,” she said, and an eager nation edged forward on its collective couch to hear, at last, the refined Democratic justification. But all we got, after a false story about Abraham Lincoln and a court vacancy in 1864, was an attempt to redefine the term “court packing” (delivered with trademark smiling condescension). She claimed it meant appointing insufficient numbers of nonwhite judges.

Well, claiming that court packing is having too many white people on the federal bench is a creative riposte, but it's not at all what the term means. Other Democrats quickly realized, however, that redefining the term was a fruitful way to neuter the issue, much like redefining what constitutes a criminal act is one way to reduce crime.

Baker continues:

Now a second redefinition has emerged. In a barrage of comments over the weekend, Democrats and their supporters have alleged that their plan for the court is no different than what Republicans have been doing for the past few years—“packing” the judiciary with Republican-appointed judges.

The message has been widely disseminated and is now being regurgitated at volume. Democratic politicians and Biden supporters in the media have been parroting it. Sen. Mazie Hirono, always a reliable vehicle of whatever Democrats have been instructed to say, told CNN: “I’m really concerned about the court packing with the ideologically driven nominees now sitting on the court.”

So, if the president appoints too few people of color or too many conservatives that's what we're supposed to think court-packing is. In other words, court packing occurs when Republicans follow their Constitutional mandate to nominate Justices that they believe will uphold the Constitution regardless of the race of the nominee.

If the Democrats actually do add more Justices to the Court then the next time the Republicans control both the White House and the Senate they'll do likewise producing an escalating judicial "arms race" until we eventually have a hundred Justices sitting on the Supreme Court. By that time the Constitution will have long since ceased to have any legal significance.

Once upon a time Joe Biden recognized the stupidity of doing what he refuses to disavow today. In 1983 he said this:

President Roosevelt clearly had the right to send to the United States Senate and Congress a proposal to pack the Court. It was totally within his right to do that. He violated no law. He was legalistically absolutely correct. But it was a bonehead idea. It was a terrible, terrible mistake to make. (emphasis mine)

That version of Joe Biden was wiser in 1983 than the version running for president today. Today's version has apparently sold out to the radical left-wingers in his party who are increasingly promoting that "bonehead idea."