Court-packing: Obama to succeed where FDR failed

Court-packing: Obama to succeed where FDR failed

Still crazy after all these years.
Still crazy after all these years.

It’s sitting there as plain as the nose on your face.  The purpose of filleting the filibuster, Harry Reid’s latest contribution to the advance of mob rule, is to allow Barack Obama to pack the federal courts with ideologically sympathetic judges.

This is not a Tea Party allegation; it’s the conclusion of Mark 1-Mod 0 liberal-leaning staff writers at the major news organizations.  You’ve probably heard it yourself in the hours since Reid pushed the “nuclear” button yesterday:  “filibuster mumble mumble judiciary/justices/court mumble mumble” goes the standard media patter on the topic.  Outside of the industry-insider media in Washington, however, there is little emphasis on the specifics and meaning of the court-packing plan.

And other than on talk radio, there aren’t a lot of pundits clarifying what will be involved.  The average person’s imagination probably goes to the occasional nomination of a Supreme Court justice and the sometimes vicious fights over them in the Senate.  But where Obama will make his mark is on the federal district courts, for which justices are always being nominated and vetted.  And he will do it through the power of numbers and procedural rules: rules of a kind most Americans aren’t even aware of.  More on that in a moment.

FDR’s mistake, in 1937, was to attempt a reform of the judiciary through explicit frontal assault.  Obama isn’t proposing a wholesale reform, at least not right now.  His focus, for the moment, is on packing the D.C. Circuit Court, which hears an outsize share of federal-policy cases because of its location and purview.  FDR, by contrast, was encouraged by his landslide electoral victory in 1936 to simply go for broke in his quest to throttle the judicial branch, which had spent much of his first term striking down portions of the New Deal.

FDR’s court-packing plan has been described by numerous historians.  I quote here from Thomas Fleming’s 2001 book The New Dealers’ War, in which the telling is succinct and lively*:

Two weeks after FDR took his second oath of office and declared he had defeated the Depression but paradoxically still saw a third of the nation “ill housed, ill clothed, ill nourished,” he announced to his startled cabinet and the White House press corps his intention to reform the federal judiciary with a law that would permit him to appoint fifty new judges, including seven additional justices of the Supreme Court.  On the same day the bill was sent to Congress with blithe confidence in its immediate approval.

In 1937, FDR had a huge Democratic majority in both houses of Congress.  It wasn’t unreasonable for him to expect quick passage of whatever bill he might propose – even one described by Fleming thus:

Drawn in total secrecy by a handful of New Deal insiders, the bill was quintessential Roosevelt-the-trickster, full of bogus statistics about the Supreme Court justices and other federal judges being overworked and needing a WPA-like infusion of helping hands.

But FDR had misjudged his moment in more ways than one:

The Democratic majority that Roosevelt had created…was a strange hybrid, with drastically different views of political reality.  The yellow-dog Democrats of the South…were conservatives with no desire to change the established order… In the North new industrial unions were often led by radicals if not by outright Communists who viewed the southerners with barely disguised loathing.  Somewhere on the right of the middle were millions of northern ethnic voters…who suspected ideologues and disliked reformers almost as much as the southerners did.

The court-packing bill, as it was soon called, also collided with an almost mystic reverence for the Supreme Court that was deeply embedded in the psyche of the American people. … The mail to Congress was soon running ten to one against the president’s bill.

That was only the beginning of FDR’s woes.  Senator Burton K. Wheeler of Montana [a Democrat]…announced his unalterable opposition to the bill.  Wheeler was a bona fide liberal who had a long record of defending the rights of the people against the power of property, in particular the politicians who spoke for Montana’s giant copper companies.  He quickly drew other western liberals into his camp.  Southern Democrats, already unnerved by Roosevelt’s liberal rhetoric, defected virtually in a body. …

[T]he Democratic Party tore itself into chaotic shreds over the court-packing bill.  In spite of Roosevelt’s landslide and the seemingly unassailable support of two-thirds of the American electorate, a majority of the Democrats in Congress declared their distrust of Roosevelt’s charisma, his unpredictability, his arrogance.  They declined to give him the new power he was demanding. …

The Senate soon buried the plan, 70-20.

From one perspective, this is a study in contrasting approaches.  Where FDR mounted the battering ram and proposed to overtly transform the judiciary – forcing Congress to go along – Obama is relying on Reid to pave the way for a smaller, more insidious change, through a collateral action: a modification to Senate procedure.  The Obama-Reid approach is, at least in appearance, coordinated.  It’s indirect.

The two court-packing plans are also a study in contrasting circumstances.  FDR in 1937 had a supermajority in both houses of Congress – the last such majority any president has had.  (He lost it with big Republican gains in the 1938 election, and saw it steadily eroded thereafter.)  His landslide in 1936 had been of truly epic proportions: FDR defeated Alf Landon by 27,752,648 votes to 16,681,862, and 523 to 8 in the Electoral College.  Obama, on the other hand, comes off a much narrower popular-vote victory in 2012, and has a divided Congress in which Republicans made huge gains in 2010, gains they substantially retained in 2012.

Some other circumstances are different today.  One is the character of the Democratic Party.  It has no such meaningful divisions in it in 2013 as it had in 1937.  It has no such political breadth.  Divisions and breadth, in fact, are much more of a Republican Party issue today.  It’s on the Republican side that there is dissent, energy, a discussion of principle versus perceived electoral necessity.

Another different circumstance is the attitudes and expectations of the political environment.  Americans are more accustomed now to having changes in government presented to them as faits accomplis.  There is less of an outcry when the lash of regulation falls on the people; less interest from the media, less soaring, principled rhetoric from politicians of either party.  There may be a Ted Cruz on the Republican side (and he is lambasted by the leaders of his own party), but there is certainly no Burton K. Wheeler among the Democrats.

There are hundreds of thousands of policy items percolating through Washington every year, items that materially affect the people in their daily lives.  But the notice this parade receives is in inverse proportion to its impact.  In 2013, national government only rarely occurs as scheduled, show-up-and-take-your-seat dramatic performance, on an Aristotelian five-act model with a beginning and an end.  It has declined instead into a sort of perpetual street-theater, motley and rat-tailed: blocks and blocks of it on gray, teeming sidewalks, and it doesn’t even take a month off in the summer.

Today’s glazed-eyed political environment is especially conducive to the Obama-Reid approach.  FDR thought he could make genuinely grand imperial gestures; Obama proposes only to make small ones.   But the small ones matter.  Brad Plumer points out at Washington Post’s Wonk Blog that one key agenda Obama will advance through packing the D.C. Circuit Court is his environmental agenda.

Why do the “numbers” matter?  For an arcane reason relating to the work practices of the court.  (Shades of that FDR-era argument from bogus statistics about overworked courts.)  Here’s Plumer:

The court currently has eight full-time judges out of 11 possible seats. Half of those judges were appointed by Democratic presidents, half appointed by Republican presidents. There’s a twist though — any overflow in caseloads tends to get handled by six “senior” judges who work part-time. And five of those senior judges were appointed by Republicans.

That’s about to change. Obama has made one nomination so far — Sri Srinivasan, who was confirmed earlier this year. Now the president is expected to get three more nominees confirmed, which could sway the ideological make-up of the court. (Cases before the appeals court are often heard by three-judge panels.)

It’s classic Obama: bury the mechanism that matters under multiple layers of tangential, incremental procedural shifts.  You think Obama, the Democrats, and a cohort of Soros-funded “public interest” groups can arrange to create an overflow in caseload for the D.C. Circuit Court?  Yeah, me too.  But how many typical American voters have even followed me this far in understanding where the Harry Reid Filibuster Filet will lead?  It’s an intricate path.  Do you want to be the conservative pundit trying to explain to people how public-interest groups and their activist lawyers are overloading the D.C. Circuit Court so that Obama’s judges will be on the job when there are EPA-related cases?

It was so much easier to see what FDR was trying to do, back in 1937.  That was partly because of FDR’s hubris.  But it was also because there was so much less government woodwork to fade into back then.  Obama and Reid have learned their lesson well.  Time will tell whether they have picked their moment so.


* Thomas Fleming, The New Dealers’ War.  (New York: Basic Books. 2001), pp. 59-62

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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