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This is the Rubicon. Cross it, and the damage to the American republic as we have known it is irreparable. We've had cries of wolf before about threats to judicial independence & the rule of law. This wolf comes as a wolf.
Democrats have, of course, been down this road before & lived to regret it
I've written on the judicial nomination wars before, for those interested in the history. But this would be a drastic new step of enormous danger to the foundations of our system.
nationalreview.com/2017/03/neil-g…
nationalreview.com/corner/it-does…
latimes.com/opinion/op-ed/…
nationalreview.com/2018/07/brett-…
nationalreview.com/2017/03/neil-g…
nationalreview.com/corner/it-does…
latimes.com/opinion/op-ed/…
nationalreview.com/2018/07/brett-…
This too
Also this
We had 4 rounds of ideological Court-packing between 1807 & 1869. Directly related to that, we had a Civil War triggered in good part by the Supreme Court's Dred Scott decision.
Let's not do that again.
Let's not do that again.
6. Let's review here the history of the expansions of the Court in that period, some of which were more ideologically loaded than others. The Supreme Court was originally 6 Justices (even number - not ideal!). For both practical & ideological reasons, it was expanded to 7 in 1807
7. Jefferson's effort to alter the trajectory of the Marshall Court was not notably successful. John Marshall was too good at winning new Justices over to his way of thinking. The Court stayed at 7 for 30 years.
8. Judicial confirmation fights restarted in earnest in 1828, when the Senate blocked outgoing POTUS John Quincy Adams from filling a seat, leaving it for Andrew Jackson, then in 1835 when the Senate tabled Jackson's nomination of his Attorney General, Roger Taney.
9. Later that year, Jackson got Taney through as Chief Justice - the role in which he would write Dred Scott. Democrats added two Justices so Jackson could make additional nominations on the way out the door to reshape the Court.
10. This was an explicitly ideological project (the pro-slavery element of Jacksonianism was not the forefront issue yet in 1837, but it was an element). Jackson filled 1 of the 2 slots with Justice Catron, who joined Taney in Dred Scott.
11. Jackson's effort to fill both seats - both were nominated & confirmed the last day of his term - was thwarted when South Carolina's William Smith declined to serve. Van Buren made a recess appointment (McKinley).
12. McKinley's successor, Justice John Campbell, was appointed by another Democrat, Franklin Pierce. Campbell also joined Dred Scott, later resigned the Court to join the Confederacy.
13. The Court-packing of 1837 did not lead directly to Dred Scott. But it was part of an ideological Jacksonian reshaping of the Court, the product of which was the Dred Scott decision. And Dred Scott was one of the major triggers for the Civil War: nationalreview.com/2017/11/john-k…
14. The subsequent rounds of expanding & contracting the Court (up to 10 in 1863, then seats eliminated so Andrew Johnson couldn't name any Justices, then back to 9 for good in 1869) were all part of the Civil War & Reconstruction, to wrest the Court away from the Dred Scott era.
15. Dred Scott was a calamity that convinced much of America that the democratic process had been foreclosed. The stability of the Court at 9 since 1869 has greatly rebuilt the prestige the Court lost in 1857.
16. Even FDR at the pinnacle of his power, having just won over 500 electoral votes and holding over 80% of the Senate, found that Court-packing was a step too far towards making the Court a flimsy tool of politicians for the American public to tolerate.
17. The Court has always been political in various ways, but life tenure, Justices long outlasting the people who appoint them - these things sustain the Court as a separate branch. Allowing them to just be swamped whenever POTUS wants new roles is banana republic stuff.
18. McElwee is reaching here (he can't point to any action ever taken by the R caucus) but even so, Senate obstruction can be fixed by the next Senate elections. Expanding the size of the Court is a permanent step. Not remotely comparable.
19. Bouie (does the NY Times styleguide require me to call him Bamelle Jouie?) ignores the ideological nature & context of Jackson's move by assuming I'm saying it was originally all about slavery. But rather ignores that Jackson appointed Taney.
20. Craig simply ignores both the history preceding the Garland fight, including prior D filibusters (I started this thread linking to my prior writeups rather than rehash them here) & the drastic difference in permanently changing the size of the Court.
21. Yes, we have had power struggles of increasing drama over what the Senate minority or majority can or will do with judicial nominees. But Americans rejected in 1937 the idea that the size of SCOTUS can be a politician's plaything. If we cross that, it's deeply dangerous.
22. Now, I agree with @jbouie that the expansions of the Court in 1807 & 1837 were not as openly & solely ideological as what Democrats are proposing today, and were partly practical in nature. That's not a point in their favor!
23. Again, I don't disagree with this thread-it covers history I've been over before & *undermines* the usefulness of the 1837 precedent for today's Dems. My main point: the ideological Jacksonian reshaping of the Court damaged it & the country.
24. Precisely! The Court as it has existed for 150 years, independent of political control, was made possible by stabilizing its size & resisting periodic efforts to break the independence Hamilton envisioned. This proposal would destroy that forever.
25. Direct political meddling was, of course, one of the causes of Dred Scott (Buchanan conspired behind the scenes with Taney), corrupting Alexander Hamilton's vision of judicial independence secured by knowing politicians couldn't just change the courts at will: 
