Tom Cotton was on Fox News yesterday for an interview about the Supreme Court vacancy and other matters. Cotton reiterated that under no circumstances will the Senate consider any nominee from President Barack Obama, regardless of qualifications. He said that Republicans would not allow Obama to “create a new Supreme Court to rubber stamp the Obama agenda.” 

Cotton brought up his risible “court packing” argument, a bit of nonsense from a few years ago that I had forgotten all about. It’s actually relevant here, however: The gist of Cotton’s argument then was that judicial nominees of the duly elected president of the United States should only be allowed Senate confirmation votes if the president was a Republican. If the president was a Democrat, on the other hand, Cotton’s legal theory was that fulfillment of the president’s constitutional duty to nominate judges to fill vacancies — as has been done throughout the history of the United States of America — amounts to court packing. It’s quite a theory. 

The issue then was three vacancies on the D.C. Circuit. Ludicrously, Cotton said Obama was “packing” the court by attempting to fill those vacancies (Bush nominations were not considered court packing, of course; see Cotton’s legal theory described above). Cotton was so determined to stop this that he proposed eliminating the three vacant seats altogether.  The term “court packing” 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 proposed to do — was itself the kind of gross power grab that made FDR’s attempted stunt so shocking. Cotton was proposing court packing in reverse.

Which brings us to this year’s Supreme Court controversy, another attempted power grab by Republicans: Cotton proposes keeping the ninth Supreme Court seat vacant for a year and essentially refusing to fulfill his constitutional duty to “advise and consent” on the president’s nomination. Once again, Cotton deems it inappropriate for the Senate to consider the nominee of the president of the United States if that president is a Democrat. Perhaps Cotton thinks that Obama is trying to “pack the court” once again if he fulfills his constitutional duty. One open question is whether Cotton will continue to oppose any nominee from the next president, if that president is a Democrat. If his behavior regarding the D.C. Circuit is any indication, perhaps Cotton will aim to amend the constitution and just have eight seats on the Supreme Court.

Cotton was asked whether the GOP would pay a political price for their obstruction. He thinks not. 

Cotton also offered familiar demagogic talking points against criminal justice reform, and claimed that almost all federal prisoners are hardened criminals who should not be released, and that the “very rare cases where there’s a manifest injustice” should be handled by presidential pardon. Cotton also made his standard case for keeping the Guantanamo Bay detention facility open forever and ever.