The Orwell Hearing: Dems Warp Meaning of ‘Court Packing’

By David Harsanyi

Monday, October 12, 2020

 

The Democratic Party’s presidential nominee Joe Biden, a man who vows to bring normalcy back to a battered nation, is unable to tell voters whether he supports a plan to destroy the American judicial system.

 

Of course, if Biden promises he won’t pack the courts in retaliation for the likely confirmation of Amy Coney Barrett to the Supreme Court, the sizable anti-constitutional wing of his party will be enraged. If he promises to do it, the brittle façade of “moderation” will be smashed.

 

Biden, who once argued that FDR’s court-packing scheme had been a great corruption of power, hasn’t been able to wave away the question. Last week, he told a local reporter that voters would find out his answer on court packing after the election. When asked whether he believed that voters “deserved” to know before they voted, he responded that, no, they did not. (These are the same Democrats, incidentally, who contend that confirmation hearings for Amy Coney Barrett should be postponed because Americans are already voting.)

 

All of this is an unexpected dilemma for Democrats, whose candidate seldom faces a challenging query from, well, just about anyone. Unable to wave away the controversy, liberals have decided to run with full-blown doublespeak, deliberately obfuscating, warping, and reversing the meaning of “court packing.” And most of the political media responded by asking, “Whose car are we taking?”

 

According to the Democrats’ new definition, “court packing” is no longer an unprecedented power grab and manipulation of a political branch meant to undermine the separation of powers. It now entails duly elected Republicans merely nominating and confirming judges for vacant seats, using the very same method that duly elected officials have been relying on to nominate and confirm justices since the beginning of the republic.

 

Biden unveiled this Orwellian framing on Saturday, saying, “The only court packing going on right now is going on with Republicans packing the court right now . . . ” By Sunday, the entire infrastructure of the Democratic Party — numerous reporters, columnists, and elected officials — had internalized the definition, and were off and running.

 

On Fox News, Senator Chris Coons noted that “over the past four years we’ve seen unprecedented court packing.” Senator Dick Durbin told Chuck Todd, with no push-back, that the court packing had become a “common question being asked because the American people have watched the Republicans packing the court over the last three and a half years. And they brag about it. They’ve taken every vacancy and filled it.”

 

Indeed, Republicans transparently promise to place originalist judges on the bench before elections. On occasion, they even release lists of judges they promise to elevate — before elections. Then, they get elected and fill those vacancies in the appropriate manner with the names that were on the list. This is, in other words, a kind of transparency that Democrats refuse to offer.

 

Recall, both Durbin and Coons also supported getting rid of the judicial filibuster when Harry Reid blew up decades of precedent — which allowed Trump to nominate and confirm his picks for lower-court vacancies. Then again, both attempted to use the filibuster to stop the confirmation of the eminently qualified Judge Neil Gorsuch, long before any alleged “court packing” by Republicans.

 

“Can we at least recognize that “Court Packing” at all levels of the judiciary has been the Republican playbook for decades? Asking for Merrick Garland,” said former newsman Dan Rather, in a missive that has now been re-tweeted and liked over 280,000 times as of this writing. In the Washington Post, Ruth Marcus simply invents a new standard, claiming that “Republicans have stocked the court with one and soon two justices whose seats they are not entitled to fill.”

 

Not entitled to fill? When Senate Republicans act as a co-equal branch of government and decide not to confirm a justice, as they did with Merrick Garland, it’s just as bad as court packing. And when they confirm justices to vacant seats it’s really “court packing.” So basically, according to liberals, the Senate Republicans sole duty is to do as they’re told by the president, if the president happens to be a Democrat.

 

This kind of manipulation of logic is already being normalized by alleged straight news outlets. The Associated Press noted that if Republicans went ahead and confirmed Barrett in the same way that every justice has been confirmed since 1789, the Democrats would be open to “depoliticizing” the process by “adding judges to the bench.” This would be a “practice,” says reporter Iris Samuels, that has been “dubbed packing the courts.”

 

The Democrats have been politicizing the Supreme Court confirmation process since Robert Bork’s nomination in 1987. The real problem is that they won’t be able to smear Barrett as a gang rapist or as an unqualified nominee, so they are preemptively attempting to delegitimize her hearings, and thus her seat, by offering an Orwellian definition for court packing and imaginary precedents.

 

By refusing to answer the question on court packing — the real kind — Biden is already threatening the constitutional order. To give in to that threat is to create a precedent in which Republicans can be blackmailed out of engaging in completely constitutional methods of governance simply because Democrats are unable to come to terms with losing an election.

 

I’m sorry, but not getting your way, however frustrating it may be, isn’t an attack on the legitimacy of the courts. And filling a vacancy isn’t in any legitimate way court packing.