On May 8 President Trump announced his nominees to fill 10 of the 120 vacancies on federal district and appellate courts. All 10 have conservative pedigrees. They were on a list supplied by the conservative Heritage Foundation (the same list from which Trump picked Neil Gorsuch). Or they were vetted by the conservative Federalist Society—or in the case of Notre Dame law professor Amy Coney Barrett, nominated by Trump for the 7th U.S. Circuit Court of Appeals—had clerked for the late conservative Justice Antonin Scalia.
Here’s the headline on the Associated Press story that was picked up by media across the country within minutes of Trump’s announcement:
And here’s the story’s lead sentence:
Pack? “Packing the court” has a specific meaning that anyone who has studied American history ought to know. It refers to Franklin D. Roosevelt’s efforts in 1937 to add more justices to the nine-member Supreme Court so as to dilute the then-conservative majority whose rulings had struck down several of Roosevelt’s New Deal laws as unconstitutional. Roosevelt proposed to expand the high court by up to six members by adding an additional, presumably liberal, justice for every sitting justice over the age of 70. Roosevelt’s proposal got nowhere, thanks to strong bipartisan opposition in Congress. Nor have historians, even liberal historians, been kind to Roosevelt’s blatant efforts to manipulate Supreme Court rulings in his favor.
But now, the phrase “pack the courts,” at least to perpetually Trump-outraged progressives, seems to be synonymous with the phrase “appoint conservative judges.” Hence this statement by Nan Aron, head of the ultra-liberal Alliance for Justice, to the New York Times the day before Trump’s announcement:
Since many in the mainstream media seem to pick up their vocabulary straight from the mouths of liberal ideologues such as Aron, “pack the courts” duly worked its way into the AP story.
Fortunately, saner and more history-aware heads seemed to prevail at the AP, which changed its headline to the more measured:
The AP also revised its lead:
But not before a number of news outlets had carried the AP account with its original loaded word “pack,” among them the New York Times, the Boston Globe, the Boston Herald, and the Pittsburgh Post-Gazette. The Times and the Herald switched to the new “pack”-free wording—but the Globe and the Post-Gazette did not. (You can trace the history of the revisions or lack thereof by googling the phrase “Trump packs courts” and by scrutinizing the HTML code on the links to the AP story itself and to the various news outlets that picked it up.)
Meanwhile, though, the phrase “pack the court” lives on as a synonym for “appoint conservative jurists, as in this U.S. News story about likely future Trump appointees to the Supreme Court:
Roosevelt’s scheme might have died, but its pejorative implications won’t die, at least for liberals in search of a talking point.
