If a Biden White House or a Democratic Senate explores changes to the judiciary, including the Supreme Court and federal bench, it would be an effort to reduce the influence of politics in the third branch of government designed by framers to provide checks and balance.
So, when we hear the press and Republicans accuse Democrats of plans to “pack the court,” it is laughable. Court packing is a Republican sport and a decades-long overreach of their power.
Recent history is important. Scholarly research shows the Supreme Court as largely centrist to slightly conservative for the past 80 years with the exception of about eight slightly progressive years during the 1960s.
Regarding Senate conduct, for the first 235 years of U.S. governance, there were 168 times when the Senate majority shut down the filibuster of the minority party to hold up a judicial, executive or cabinet nomination.
However, nearly half (82) of those instances came during President Obama’s terms. Republicans were making good on their well-reported 2008 Inauguration Day pact to obstruct the Obama presidency.
With dozens of court and executive nominations being held hostage and piling up by November 2013, then-Senate Majority Leader Harry Reid pushed a confirmation-rule change to a simple majority to apply only to federal court judges and executive branch appointees.
In 2016, Senate Republicans abdicated their constitutional duty to “advise and consent” on Merrick Garland, Obama’s February nomination to the Supreme Court court.
Keep in mind that Garland was nominated as a 63-year-old centrist judge to appeal to Republicans, in large part because they had previously indicated he was too conservative to be chosen by a Democrat president.
Then, in early 2017, when President Trump put up his own nominee, Senate Republicans were met with their first filibuster by Democrats on Neil Gorsuch.
As we all know, one filibuster by Democrats was more than Republicans could stomach. They invoked the Nuclear Option for Supreme Court nominees, something Reid was principled enough to exclude in his efforts to overcome obstruction.
In all, the Trump administration with Republican support has appointed more judges than Obama or most other recent presidents at the same point in their terms. And five of the nine justices were nominated by presidents who failed to win the nation’s popular vote — two by George W. Bush and now three by Donald Trump.
Let’s not be fooled by those who would mislabel a Biden White House that explores options for reducing political bias by the courts as the sort of court packing that Republicans have applied with force to the third branch of U.S. government.
John Bringenberg of Denver is a sustainable-energy financing executive and executive director of New Energy Colorado, a Golden-based nonprofit that provides information on energy issues.
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