Last week, a few hours before Justice Ruth Bader Ginsburg died, Senate Majority Leader Mitch McConnell said he would pledge a few things not to do, including “packing the courts.”
This left liberal reporters and commentators astounded and angry.
Not packing the courts??? https://t.co/96767DrR6d
— Eric Lipton (@EricLiptonNYT) September 18, 2020
“We’re not packing the courts.” Riiiiiight. https://t.co/PhiKyfB34b
— Steve Vladeck (@steve_vladeck) September 18, 2020
Now, this isn’t a matter of opinion. Democrats have, for months, proposed packing the courts if they get a majority, and Republicans have not proposed it. That is, if we use the term “packing the courts” according to its original and most common meaning over the past 80 years. These days — when Republicans want to fill a vacancy, Democrats want to change the law in order to gain an instant majority on the court, and journalists want to cast these two actions as equally audacious — it’s popular to create new, less clear meanings to the term.
“Court-packing” is generally a reference to President Franklin Roosevelt’s threat in 1937 to add six justices to the Supreme Court and create a majority on the court that would allow him and his congressional majority to do whatever they wanted without fear of it being struck down as unconstitutional.
FDR backed down from this threat after two conservative justices switched and voted to allow New Deal expansions of federal powers.
But for at least 20 years, the phrase has been abused by partisans and journalists, depending on who is in power. From 2002 through 2008, Democrats used the term the way journalists today understand it — meaning “nominating lots of conservative judges.”
During the Obama administration, Republicans copied the language of John Kerry, Patrick Leahy, and Chuck Schumer and called it “court-packing” when then-Sen. Harry Reid and Democrats abolished the filibuster and started rushing through nominees in an unprecedented fashion. Liberal journalists scolded this use of the term.
McConnell talks of Dems’ recent “gambit” to fill D.C. Circuit. Ah yes, that crazy court-packing scheme that involved filling vacancies.
— Taniel (@Taniel) November 21, 2013
Filling judicial vacancies is not “court-packing.” It’s an insult to actual court-packing to call it so.
— Matt O’Brien (@ObsoleteDogma) November 22, 2013
Politifact ruled it “false” to use the term “court-packing” to mean “rapidly filling vacancies.” Jonathan Chait at New York Magazine falsely said that before 2013, “nobody had ever described filling existing vacancies as ‘court-packing.’”
Now, much of the media is back to conflating “filling vacancies” with “adding more justices so that we instantly get a majority.” That’s good for Democrats because Republicans want to fill a vacancy and many Democrats want to add more justices in order to gain a majority.
Words have meanings, and this can be upsetting if what you want to do is blur the truth.
