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Adopting Trump campaign talking points, reporters are now regularly demanding Joe Biden reveal if he has any plans on "packing" the Supreme Court if he wins on Election Day — if he plans to expand the number of Justices as a way to offset what Democrats see as stolen seats taken during the Trump administration.
The topic has taken on urgency as Republicans open up Supreme Court confirmation hearings today for Amy Coney Barrett. In a stunning bout of hypocrisy, they're doing so just days before the election, as millions of Americans have already voted for the next president, and four years after Republicans proclaimed election-year confirmations were forbidden because voters needed to weigh in on such a pressing topic.
Over and over we’re hearing urgent media inquires and commentaries about “packing" the Courts:
• "Biden and Harris Need an Answer on Court Packing" (The Atlantic)
• "Ruth Bader Ginsburg’s Death Revives Talk of Court Packing" (New York Times)
• "How Democrats Could Pack the Supreme Court in 2021" (Politico)
• "Harris Dodges Questions on Support for Supreme Court Packing at Debate" (CBS News)
The "packing" term needs to be discarded because it carries a partisan, Republican connotation, suggesting that Democrats are radically altering an American institution simply to secure power. There's a reason Fox News uses the phrase "packing the courts" nearly ten times as often as CNN and MSNBC, according to TVeyes.com.
For conservatives, "packing the courts" is an attack line — Sen. Ted Cruz (R-TX) said it would "destroy one of the pillars" of the Constitution, while Sen. Ben Sasse (R-NE) compared it a "suicide bombing." And that's why the press shouldn't be using "packing" in news reports. "Expanding the courts" is a more accurate description of what might take place during the next Democratic administration.
The Associated Press recently got it right. Reporting on a campaign debate between incumbent Sen. Steve Daines (R-MT), and his Democratic opponent, Gov. Steve Bullock, the AP reported, "Bullock said that if Coney Barrett was confirmed, he would be open to measures including adding justices to the bench, a practice critics have dubbed packing the courts." [Emphasis added.]
This recent AP headline was also excellent and accurate: “Progressives Pledge to Keep Pushing Biden to Expand Court.”
For the record, Democrats consider the Court seat that was refused to President Barack Obama's nominee, Merrick Garland, in 2016, to have been stolen. But news outlets like the Times put stolen in quotes when reporting on the controversy (“Democrats want to correct that they feel was a “stolen” seat”), signaling to readers that the allegation is a loaded one. If that's the case, news outlets should put "packing" in quotes to signal the same thing.
Background: The phrase "packing the court" is most often associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have broadened the Supreme Court from nine to as many as 15 justices.
Now the idea is in play again. If the GOP top-heavy Court soon outlaws access to abortion and strikes down the Affordable Care Act, which are distinct possibilities once Barrett is seated, there's little question Democrats would move to expand the Court to dilute the power of the conservative justices and restore balance to the high court.
This is all about context. The reason Democrats might be forced to expand the Court is because Republicans are trying to do what's never been done before in American history — confirm a lifetime appointment to the Supreme Court to a bitterly contested nominee from a wildly unpopular incumbent president while millions of Americans have already voted in the White House contest.
They're doing it while the chairman of the Judiciary Committee, Sen. Lindsey Graham (R-S.C.) refuses to take a Covid-19 test even though two GOP members of the committee have tested positive. Graham's refusal to take the test could stem from the fact that if it comes back positive, he would be unable to oversee the in-person hearings. All of that represents the most brazen, bizarre set of confirmation circumstances in American history, which is why Democrats are contemplating a move to expand the Court.
But the press often glosses over what the extreme, unprecedented Barrett nomination process represents. In that report on Harris 'dodging' the Court question, CBS News made no mention of the fact that Republicans refused to hold hearings for Garland, while now ramming through the Barrett confirmation. Instead, CBS simply noted, "Mr. Trump and Pence argue the president has a constitutional duty to name a new Supreme Court justice, especially if election-related disputes end up before the court."
In other words, in its report on expanding the court, CBS left out the reason — the context — for why Democrats might do it.
Meanwhile, much of the "packing" coverage gets the history wrong, by repeating GOP claims that the Court "has had nine seats for 150 years," as Pence claimed at the debate, and that any attempt to alter that number would represent an unprecedented attempt to play politics with the highest court in the land.
For more than a year, between February 2016 and April 2017, the Supreme Court only had eight Justices because Republicans refused to hold hearings for Garland — Republicans effectively stripped the Court of one its seats. So it's completely inaccurate to suggest that Democrats wanting to change the number of seats on the Court would represent an unheard of development.
In terms of radical Supreme Court behavior, let's not forget that during the waning weeks of the 2016 campaign, when even the GOP thought Trump would lose, Senate Republicans began announcing they would refuse to confirm any nominee put forward by President Hillary Clinton.
Facing that kind of extremism, Democrats now ponder expanding the court, not “packing” it. The press ought to say so.
📺 GOOD STUFF:
For those interested in the issue of Trump and the press, Vice TV is airing what looks to be a fascinating new documentary Thursday night, at 7:30, “Enemies of the People: Trump and the Political Press”
☀️ FUN STUFF — BECAUSE WE ALL NEED A BREAK
Ziggy Marley (featuring Sheryl Crow) “Everywhere You Go”
Recording one of the cooler children’s albums in recent times, Marley’s latest, More Family Time, is a pure listening delight — and my kids are fully grown. The album is populated by musical friends, including Ben Harper, Tom Morello, Busta Rhymes, and Angelique Kidjo. Here, Marley teams with Crow for a predictably potent ray of sunshine.
You will always have love in your life
Remember the words, I'll be by your side
So walk without breaking stride
'Cause the path of the righteous is a radiant light
People in my house are tired of me ranting about how the republicans have, once again, framed the issue in a false, but compelling, way. "Packing" the court has instantly become the official media term for being forced to consider balancing the court's disposition as a means of saving ourselves. I especially liked your point, Eric, about having the 8-person court forced on us by republicans who, of course, do not bat an eye when they mire themselves in hypocrisy.
Mr. Boehlert, the answer lies with Biden. Each time he’s asked if he’ll “pack the Court”; he should answer that the Republicans have been “packing” Courts for years. When the Federalist Society has to approve nominations on political grounds. That’s packing. When McConnell refuses to even consider any appointment by President Obama; that’s packing.