Sasse (and WaPo): Stacking, packing, Biden, and boneheads -- a "Civics 101" lesson

This might be the most worthwhile eleven minutes of the entire confirmation hearing for Amy Coney Barrett, and it’s not surprising that it came from Republican Ben Sasse. He’s been a gadfly at times, a more committed conservative than partisan actor, and perhaps the GOP member of the Senate Judiciary Committee with the most credibility to deliver this “Civics 101” spanking to his colleagues.


Sasse starts off with religious liberty, but that’s just a warm-up to his amiable yet pointed criticism of Democrats’ demands for Barrett’s views on policies and of the judicial activism which has distorted the constitutional balance in government:

Now a couple of terms that all of our eight-graders should know as things we should reject in common. And again, shared rejection, not Republican versus Democrat or Democrat versus Republican, but a shared American rejection. And the first is this: judicial activism. Judicial activism is the idea that judges get to advocate for or advance policies, even though they don’t have to stand for election before the voters and even though have lifetime tenure.

Judicial activism is the really bad idea that tries to convince the American people to view the judiciary as a block of progressive votes and conservative votes, Republican justices and Democratic justices. This is the confused idea that the Supreme Court is just another arena for politics. When politicians try to demand that judicial nominees, who are supposed to be fair and impartial, when politicians try to get judicial nominees to give their views on cases or to give their views on policies, to try to get them to pre-commit to certain outcomes in future court cases, we are politicizing the courts and that is wrong.

That is a violation of our oath to the constitution. Likewise, when politicians refuse to give answers to the pretty basic question of whether or not they want to try to change the number of justices in the court, which is what court packing actually is. When they want to try to change the outcomes of what courts do in the future by trying to change the size and composition of the court: that is a bad idea that politicizes the judiciary and reduces public trust.

On the other hand, depoliticizing the court looks a lot like letting courts and judges do their jobs and the Congress do our jobs. You don’t like the policies in America? Great, elect different people in the House and in the Senate and in the presidency. Fire the politicians at the next election, but voters don’t have the freedom to fire the judges; therefore, we should not view judges, and we should not encourage the judges or public to view them, as ultimately politicians who hide behind their robes. The antidote to judicial activism is originalism.

Originalism, also known as textualism, is basically the old idea from eighth grade civics that judges don’t get to make laws. Judges just apply them. An originalist comes to the court with a fundamental humility and modesty about what the job is that they are there to do. An originalist doesn’t think of herself as a super legislator whose opinions will be read by angels from stone tablets in heaven. Judicial activism, on the other hand, is the bad idea that judges’ black robes are just fake, and truthfully they are wearing red or blue partisan jerseys under there.

We should reject all such judges, and so today, when we have a nominee before us, we should be asking her questions that are not about trying to predetermine how certain cases will be judged.


Sasse then gets even more pointed about court packing. He rips Democrats for trying to cast it as “reform,” and for claiming that Republicans have engaged in court packing by filling existing open seats. That’s “playing people for fools,” Sasse scolds:

A final term that we should be clear about, I mentioned early but I think it’s worth underscoring, is we should underscore what is court packing.

Court packing is the idea that we should blow up our shared civics, that we should end the deliberative structure of the Senate by making it just another majoritarian body for the purposes of packing the Supreme Court. Court packing would depend on the destruction of the full debate here in the Senate, and it is a partisan suicide bombing that would end the deliberative structure of the United States Senate, and make this job less interesting for all 100 of us, not for 47 or 53, because it’s hard to get to a super majority that tries to protect the American people from 51-49, 49-51 swings all the time. What blowing up the filibuster would ultimately do is try to turn the Supreme Court into the ultimate super-legislature.

Court packing is not judicial reform, as some of you who wrote the memo over the weekend got the media to bite on.

Court packing destroying the system we have now. It is not reforming the system we have now, and anybody who uses the language that implies filling legitimate vacancies is just another form of court packing, that’s playing the American people for fools.

Interestingly, the Washington Post’s Aaron Blake largely concurs with Sasse on this point. Democrats are attempting to confuse people between “packing” — which has a specific meaning and at which neither party has succeeded — with “stacking,” something both parties have done when the opportunities arose:


Some Democrats are pushing their party to “pack” the court with more justices to retaliate against the GOP’s judicial gamesmanship, but Democratic presidential candidate Joe Biden continues to refuse to say whether he supports it. Liberals are apoplectic that Biden’s refusal to take a position has become such a story, arguing that it pales in comparison to what Republicans have done.

And liberals appear to have settled upon a new talking point: It’s the GOP that has packed the courts.

We can say a few things:

  1. Biden’s refusal to answer this question is a real story. This is an issue of huge importance to the country’s future come 2021, if Democrats control the Senate and the presidency and would have the power to pack the court. Biden’s defenders argue that his refusal to answer is smart politics; that may be true, but smart strategy is one thing, while transparency is quite another.
  2. The attempt to label what the GOP has done “court-packing” is too cute by half. Since President Franklin D. Roosevelt’s attempt to pack the court in the 1930s, court-packing has been understood to mean statutorily adding seats on the bench so you can tip its balance in one fell swoop; it has never meant more broadly doing controversial and/or brazen things to game the process and get more judges for your side.
  3. Republicans have unquestionably done the latter. At numerous points in recent years, Republicans have floated or done things with little or no precedent to help their party install a higher percentage of sitting judges. So while it may not be “court-packing,” you could sure call it something else. I’d humbly submit that a more apt term would be “court-stacking.”

Fair use limits what can be excerpted. Oddly, though, Blake blames Republicans for “arguably the most consequential judicial gamesmanship in modern political history” by a “blockade” Barack Obama’s attempts to stack the DC Circuit Court of Appeals, among other openings. Blake says this is what prompted Harry Reid’s nuclear option in 2013. Blake seems to forget that Democrats did the same thing to George W. Bush in 2002-5, only relenting a bit when the Gang of Fifteen came up with a compromise that forced Bush to withdraw several of his nominees. Republicans at that time had floated the nuclear option but backed down when Democrats organized a bipartisan push against it. When Democrats pushed the nuclear option, suddenly the previous Democratic members of the Gang of Fifteen happily supported the rule change by Reid … the one that also allowed Republicans to stack the courts over the last three years.

However, Blake’s correct about the difference between “stacking” and “packing,” and he’s also correct that Republicans confused the two terms often enough in 2013, which Allahpundit also recalled.  As for Biden, he knows the difference too, or at least did at one time. In a much-circulated clip from 1983 that’s gaining traction again today, Biden called court packing a “bonehead” move by FDR.

“President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court,” Biden said during the hearing. “It was totally within his right to do that—he violated no law, he was legalistically absolutely correct.”

“But it was a bonehead idea. It was a terrible, terrible mistake to make, and it put in question, for an entire decade, the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America.”


The big takeaway here is that there are more boneheads today than in 1983, when this was common wisdom. Hence the need for Sasse’s lecture.

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