A brouhaha has developed since the death of U.S. Supreme Court Justice Ruth Bader Ginsburg a week ago. President Donald Trump has stated that he will nominate a person in the next day or so to be considered for the post and go through the Senate confirmation process. He hopes to have the new justice seated in the next five weeks.
Democrats have, of course, objected vehemently to this decision arguing that any replacement should wait until after the November 3 election. That way, if Joe Biden wins the presidency, the Democrats could try to stall the process until Biden takes the oath of office and then he would be able to name Ginsburg’s successor.
A firestorm has developed with the Democrats threatening all kinds of retaliatory measures if Trump’s pick is confirmed before Nov. 3. Impeachment (again) if he wins re-election is one of them, but the more interesting threat is to pack the Supreme Court.
The idea of packing the court is this: If Trump’s nominee is confirmed but Biden wins the election, and the Democrats take control of the Senate while maintaining a majority in the House, legislation could be passed to increase the number of justices, which Biden would appoint, to the point that the liberals would dominate the decision-making.
The current makeup of the court is nine members with one of them being Chief Justice. Although the Constitution did not speak to the number, it did create the court with a Chief Justice, leaving it to Congress to decide how many jurists would serve. The Judiciary Act of 1789 provided for a Chief Justice and five associates. Although that number fluctuated for several years, legislation was passed in 1869, after the Civil War, setting the number at nine, and it has remained there ever since – more than 150 years.
Oddly enough, the current threat to pack the court is not the first time such a proposal has been made. President Franklin Roosevelt, a Democrat, did it in 1937. He had just been elected to his second term by a huge margin, and also enjoyed his party’s control of both the Senate and House by large majorities. No vacancies had been created on the Supreme Court during his first term, and with the country in the depths of the Great Depression, the conservative tribunal had declared unconstitutional several of his New Deal programs including the National Recovery Act (NRA) and the Agricultural Adjustment Administration (AAA).
He was so angered that he introduced a bill in Congress to pack the court. It provided that justices would be allowed to retire at age 70, but the president would be able to appoint another justice for each one who at 70 refused to retire. The maximum number of justices would be capped at 15.
The debate in Congress over the bill was bitter, and in the end it was defeated, not by Republicans, for they were by far in the minority, but by members of Roosevelt’s own party joining with the GOP. They felt the measure was way too radical.
We feel that leaders of today’s Democrat Party should take a lesson from what happened with a fellow Democrat and one of America’s most renowned presidents – don’t act in haste and anger.