#3162 (10/8) 'Why Court-Packing Would Be Devastating to Our Republic'"

 'WHY COURT-PACKING WOULD BE DEVASTATING TO OUR REPUBLIC'" - GianCarlo Canaparo / @GCanaparo / Thomas Jipping / @TomJipping / October 05, 2020 / https://www.dailysignal.com/2020/10/05/why-court-packing-would-be-devastating-to-our-republic/ [AS I SEE IT: I confess that the following explanation of what "court-packing" is makes my head spin. There may be a simpler explanation but I haven't come across any. I present this mainly to present an explanation of the term since in has come up often in recent days, such as during last night's VP debate. I do hope you can understand what the term means. (: - Stan]

     To ensure that legislation to change the Supreme Court’s size is not only passed but signed into law, court-packers would have to control both houses of Congress and the executive branch. (Photo: Mike Kline/notkalvin/Getty Images)

     President Donald Trump nominated Judge Amy Coney Barrett on Sept. 26 to replace the late Justice Ruth Bader Ginsburg. “If Republicans confirm Judge Barrett,” tweeted Sen. Edward Markey, D-Mass., in response, “end the filibuster and expand the Supreme Court.” In other words, if at first you don’t succeed, rig the rules.

    Numerous other Democratic politicians have either explicitly expressed their support for this or said that “everything is on the table,” including Sens. Kamala Harris, Chuck Schumer, Elizabeth Warren, Richard Blumenthal, Sheldon Whitehouse, and Mazie Hirono, as well as Reps. Nancy Pelosi, Alexandria Ocasio-Cortez, Joe Kennedy, and many others. When asked during the Sept. 29 debate whether he supported packing the Supreme Court, presidential candidate Joe Biden said, “I’m not going to answer the question.” His running mate, Harris, has also avoided the question recently. 

   It’s important to understand both what “court packing” would require and how its impact would be felt. Keeping the judiciary separate from manipulation by the political branches was one of the reasons for American independence from Great Britain. Chief Justice William Rehnquist once described judicial independence as the “crown jewel of our system of government.” That jewel is easy to admire until its results don’t fit your politics. Court-packing refers to changing the structure of the judiciary to add judges deemed likely to render favorable decisions.

   While America’s Founders sought to separate the judiciary from politics, court-packing deliberately brings them together. We’ve been here before. After his landslide reelection in 1936, President Franklin Roosevelt proposed creating and filling additional judicial positions so that the Supreme Court would uphold, rather than strike down, his New Deal legislation. Even though Democrats enjoyed enormous Senate and House supermajorities in the 75th Congress (1937-38), they rejected Roosevelt’s court-packing plan. The Judiciary Committee report on the bill said such court-packing’s “ultimate effect would undermine the independence of the courts” and “expand political control over the judicial department.”

   The report’s arguments apply as much today as they did more than 80 years ago. Court-packing is simply “an attempt to change the course of judicial decision” by “neutralizing the views of some of the present members.” Disagreeing with some judicial decisions, however, does not justify destroying the judiciary itself. “It is far better,” they said, “that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members.”

   Once court-packing destroys judicial independence, it cannot be restored. Court-packing is no small project. Many people are surprised to learn that while the Constitution created the Supreme Court, Congress determines its size. With the exception of five years during the Civil War period, the court has had nine members since 1837. In a 2019 National Public Radio interview, Ginsburg said that nine “seems to be a good number” and opposed court-packing because it would undermine “the safeguards for judicial independence, [which] are as great or greater than anyplace else in the world.”

    To ensure that legislation to change the Supreme Court’s size is not only passed but signed into law, court-packers would have to control both houses of Congress and the executive branch. More than that, they would have to change the legislative process itself. The Senate and House of Representatives were designed to participate in the legislative process in different ways. The House is designed for action, with everything happening by majority vote. The Senate is designed for deliberation, with rules that allow the minority to have a significant voice. Rule 22, for example, requires 60 votes to invoke cloture, or end debate, on a bill. A group of senators lacking the votes to defeat final passage of a bill might still be able to get their way by preventing any final vote at all.

   Failure to end debate is a filibuster. The filibuster has been part of the Senate’s legislative process since the turn of the 19th century. In fact, the opportunity for extended debate has been called the single most distinctive feature of the Senate since it was established in 1789. Under the current rules, as long as 41 senators vote against ending debate on a court-packing bill, it could not pass the Senate and could not become law.

  This is why Markey, Harris, Schumer, Warren, and many others want to “end the filibuster.” They want to lower the number of votes needed to end debate from 60 to a simple majority, the same as necessary for passing a bill. While changing the actual words of Senate rules requires a supermajority, changing the “interpretation” of those words requires only a simple majority using the so-called nuclear option. Any party in control of the House, Senate, and the White House could thereby abolish the legislative filibuster and then simply pass a new law increasing the number of Supreme Court justices, and lower court judges to boot, if they wished, and presto, it would be done.

   As abolishing the filibuster would undermine the Senate’s role as a careful deliberating body, packing the court would undermine its independence, and together these tactics would change the nature of our constitutional government. With the court’s independence gone, it would take on an even larger role in deciding fraught political questions than it does now. The temptation for a successive president whose party enjoys majority control in the House and Senate to pack the court further would likely be irresistible.

   In a short time, the judiciary could largely supplant Congress as the chief legislative body. Legislative and constitutional questions would be decided, undecided, and re-decided with every swing of the electoral pendulum.No government so unstable could last.Packing the court will only ever yield short-term political victories at the cost of the long-term health of our republic.

     [The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation. Content created by the Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. For licensing opportunities of this original content, email licensing@dailycallernewsfoundation.org.]

[italics and colored emphasis mine]

GianCarlo Canaparo is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.

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PRAYER MATTERS:

"To clasp the hands in prayer is the beginning of an uprising against 
the disorder of the world. -  Karl Barth

"Prayer is inviting God into a seemingly impossible situation and trusting/resting in His love and grace to accomplish His perfect will in His perfect time and for His greatest glory. Intercession is  one of the great privileges AND responsibilities for EVERY believer."- Stan

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World-Wide Prayer Requests:

 PRAISE GOD for the continuing successes against ISIS!

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Praying Through the Open Doors World Watch List for persecuted believers:https://www.opendoorsusa.org/take-action/pray/monthly-prayer-calendar/

A mother’s secret prayers lead Muslim sisters to Jesus. The mother of Ethiopian sisters Fatuma*, 19, and Amina*, 16, never told her daughters she was a Christian. If her Muslim husband discovered she had renounced Islam, he would likely divorce her— or worse. So, for her safety and her children’s, she hid her faith but continued praying for her family in secret. Six months ago, the sisters came to Christ. They, too, tried to keep their faith from their father. But despite their best efforts, he found out, took all their belongings and kicked his children out of their home. Sadly, there are many secret Christian converts who hide their faith from their Muslim families and communities in World Watch List countries in Africa, Asia and the Middle East.

October 8 - Pray Fatuma and Amina grow strong in their love for Jesus and knowledge of His Word.

 *Representative name or photo used to protect identity.

STANDING STRONG THROUGH THE STORM - OpenDoorsUSA.org

 At my first defense, no one came to my support, but everyone deserted me. May it not be held against them.- 2 Tim. 4:16                                     

SPEAK ON BEHALF OF THOSE WHO SUFFER

The Apostle Paul knew exactly what it was like to be alone, to be deserted by all who called themselves “brothers” and “sisters.” A former colleague who has done considerable travel among the persecuted says, “It is hard to believe that Christians are the largest persecuted group in the world today. But it is even more difficult to believe that this is so seldom mentioned in our gatherings and church services. More Christians know the names of their favorite actors than their fellow believers who are in prison.”

He continues, “With every trip something in my heart breaks as I hear the echoes of suffering:

I remember the echoes of an Egyptian mother as she shared how her young boy was stuck in a haystack because she refused to deny Jesus.

I remember the sounds of weeping as fellow students in Indonesia shared how Sariman, their co-student, was hacked to death.

I remember the cries of anguish as we walked from church to church that was burned to the ground on the island of Lombok.

I remember the tears of Rebecca in Iran as she showed the picture of her father who was stabbed to death for sharing the gospel.

I remember the voice of Pastor Daniel in Vietnam as he shared how he was chained to the ground for six months.

I remember the fear of Grace from Sudan as she shared how her church was attacked and her friend was shot through the head.

Oh, I remember the cries of Caleb in Eritrea as he shared with tears how two dear friends were executed in front of him because of their faith.

And I remember the tears of Joy in the southern Philippines as she shared how her fiancé was shot to death in their church in Mindanao.

But, most all, I remember the deafening sounds of silence every time I return home.

RESPONSE

How can I be silent today? How can I not speak on behalf of those who suffer? How can I desert those that belong to the same body that I belong to and who desperately need the encouragement of my intervention?