GOP Court Packing Began In 1968

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The Warren Burger court in 1977. Nixon added four justices to the SCOTUS during his first term.

Republican court packing only became an issue in 2016 when Mitch McConnell and the Senate Republicans refused to grant a hearing and an up or down vote to Merrick Garland. McConnell disingenuously told us that there was a “norm” or “rule” that Supreme Court nominees weren’t confirmed during presidential election years. The seat was stolen by McConnell in 2017 when he abolished the Senate filibuster rule for Supreme Court nominees and Neil Gorsuch was confirmed to the high court.

Four years later, McConnell did a 180 on his phony “rule” from 2016 and moved aggressively to confirm Amy Coney Barrett to the Supreme Court a mere eight days before the 2020 elections. The replacement of Ruth Bader Ginsburg by Barrett is the second Supreme Court seat that was stolen by the GOP.

Republican theft of Supreme Court seats and court packing is nothing new. The right’s efforts to pack the federal courts with partisan, pro-big business activists began as early as 1968. On June 13, 1968, Chief Justice Earl Warren tendered his resignation to President Lyndon Johnson, effective upon the confirmation of a successor.

Johnson nominated Associate Justice Abe Fortas to succeed Warren as chief justice and federal appeals court judge Homer Thornberry to replace Fortas as associate justice. At the time of these nominations, the conventional wisdom was that both of Johnson’s picks would be swiftly confirmed — there hadn’t been a major confirmation battle since 1930.

A coalition of Republican senators and right wing southern Democratic senators were able to defeat the Fortas nomination by mounting a successful filibuster. It was the first (and so far) only filibuster of a U.S. Supreme Court nominee in history.

The conservative coalition that defeated the Fortas nomination argued that the next president should select the chief justice. Fortas’ opponents were of the belief that Richard Nixon would win the election and should pick the next chief justice.

Another unique aspect of the Fortas fight was that the conservative senators — for the first time — in American history judged a Supreme Court nominee on his ideological positions. The conservatives were critical of Fortas’ decisions on school desegregation, prayer in school, legislative reapportionment and pornography. Republicans like to tell you that Robert Bork was unfairly judged on his ideology for the first time in Senate history. Not true.

Abe Fortas’ opponents also manufactured a series of phony ethical scandals surrounding some of his sources of outside income. Fortas’ alleged ethical transgressions are pretty minor in comparison to the current “conservative” members of the Supreme Court. For example, Justice Antonin Scalia socialized with Dick Cheney while a case involving the then vice president was pending in front of the high court. Scalia and his fellow “conservatives” subsequently ruled for Cheney.

The successful filibuster of Abe Fortas allowed Richard Nixon to replace Warren as chief justice by Warren Burger. Nixon and the Republicans were able to use the phony ethics “scandal” to force Fortas’ resignation from the Supreme Court in 1970. John Mitchell had threatened a criminal investigation of Fortas if he didn’t resign.

Nixon’s first term was a big turning point for the Supreme Court. The 37th president was able to get four supreme court justices confirmed during his first term. Three liberals and one conservative were replaced by Nixon. The early 1970s marked the the end of the only progressive majority in the history of the U.S. Supreme Court.

Republican court packing of the Supreme Court has led to a series of rulings in favor of the GOP, big business, the Christian right and against labor and consumers. This has tilted the political and economic playing field in favor of the GOP and the top 1%.

A radicalized Supreme Court with a 6–3 “conservative” majority could act as a super legislature for the GOP and enact the most unpopular parts of the GOP agenda. As a starting point, the Affordable Care Act, the Voting Rights Act and Roe v. Wade most likely be overturned. In addition, the last few remaining campaign finance laws will probably be tossed out as well.

An extreme GOP majority could even go farther than that. Judge Amy Coney Barrett wouldn’t say whether or not Social Security or Medicare are constitutional. Quite frankly, it wouldn’t surprise me if a radical majority on the Supreme Court threw out the progressive reforms of the 20th century.

Under these circumstances, court reform is justified and necessary. Presidents Abraham Lincoln and Ulysses Grant added seats to the U.S. Supreme Court. Presidents John Adams and Jimmy Carter added seats to the lower federal courts. There is ample historical precedent for the reform of the federal courts.

Unfortunately, the current Supreme Court majority clearly favors big business, the top 1% and partisan and racist voter identification or suppression laws. They clearly are acting in a way contrary to our history and long time traditions. That’s why this country needs court reform in the event of a Democratic majority in 2021.

If we elect Joe Biden president along with a Democratic Congress, this country can live up to its high ideals and founding documents. We will get the change this country needs so badly. Now let’s get it done!

I’m a trial lawyer, a Democratic activist and a sports fan.

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