I’ll say this for Rep. Tom Cotton: he knows his audience. If there is a nonsensical argument to make against President Obama, Cotton will leap to the head of the line. This week’s entry is the hilariously titled “Stop Court Packing Act,” introduced by Cotton with no co-sponsors in response to Obama nominating three judges to the U.S. Court of Appeals for the D.C. Circuit. Cotton proposes to instead eliminate the three positions Obama is attempting to fill.
Here’s the source of the controversy: The president is constitutionally charged with nominating judges to fill vacancies on the federal bench, and there are three vacancies on the D.C. Circuit. But Senate Republicans have aggressively used the threat of a filibuster to block judicial nominees from ever getting to the Senate floor for a confirmation vote. So lots of seats remain vacant. It’s a big problem, as Supreme Court Justice John Roberts has pointed out to the Senate Judiciary committee (Roberts says the D.C. Circuit should have its full roster of 11 judges — these three seats have been vacant since Obama’s first term).
Because of its location, the D.C. Circuit has an outsized impact on policy. Republicans don’t want any Obama nominees to join the court, which is currently made up of a majority of Republican nominees. As Matthew Yglesias at Slate put it, “The controversy is over whether the judicial nominees of a duly elected president of the United States should receive confirmation votes on the floor of the U.S. Senate or if instead there should be a rule that vacancies can only be filled by Republican Party presidents.”
Ludicrously, Cotton and some Senate Republicans are saying that Obama is “packing” the court by attempting to fill vacancies (should we bother to note that Bush nominations were not considered court packing?). The term is a reference to FDR’s infamous attempt to add seats to the U.S. Supreme Court so that he could nominate judges that would support his agenda. Cotton said that Obama’s “nominations today to the D.C. Circuit are an obvious effort to pack a court that has frustrated his liberal, big-government ambitions.” Obama pointed out that, no, court packing “involved Franklin Delano Roosevelt trying to add additional seats to the Supreme Court in order to water down and get more support for his political agenda. We’re not adding seats here. We’re trying to fill seats that are already existing.”
In fact, changing the number of judges on a court in order to influence its ideological makeup — as Cotton proposes to do — is itself the kind of gross power grab that made FDR’s attempted stunt so shocking. Cotton is proposing court packing in reverse.
Of course, none of this matters. Red meat is best served half-baked, and Cotton isn’t really trying to advance a logical argument. Any fight he can pick with Obama is good for Cotton, who will be announcing his candidacy for Senate against Mark Pryor any day now. As University of Arkansas politics professor Janine Parry told Stephens Media, “This kind of thing is a way to earn the kind of stripes that guarantee a big investment in him by the Republican Party and its allies.”
p.s. Senate Democrats share the blame for this mess via their failure to reform the filibuster, and though Republicans have taken the practice to epic heights during the Obama administration, Dems have been guilty of filibuster shenanigans in the past. I propose “powardice” as a made-up word for Senate Democrats, whose fetish for institutional power and cowardly political instincts have protected the filibuster.