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Courts have been packed

Former Vice President Joe Biden is asked, over and over, whether he will pack the U.S. Supreme Court if he is elected president. The better question is why Senate Majority Leader Mitch McConnell, R-Ky., has been allowed to spend the last six years packing the lower courts.

With Republicans feeling no shame about the hypocrisy of filling a Supreme Court vacancy at warp speed in the middle of an election after righteously blocking even a vote on former President Barack Obama’s nominee for almost a year, fuming Democrats said they might increase the number of Supreme Court justices should they win the election. The idea was immediately labeled “court packing.”

Packing the Supreme Court is not even possible under today’s laws. No one person, not even the president, can change the makeup of the court. In 1937, a frustrated President Franklin Roosevelt introduced a proposal to increase the number of justices. Republican and Democratic senators voted “no.”

McConnell, on the other hand, has succeeded in packing lower courts. By blocking and slow-walking judicial nominees during the 2015-16 session, he required Obama to leave office with nearly 100 judicial vacancies unfilled.

According to the Brookings Institute, that Senate session saw fewer and slower confirmations than for any president, Democrat or Republican, for decades before. Since 2016, McConnell has sidelined nearly all other Senate business to push through 218 judges, including three Supreme Court justices. There are another 34 nominees on deck.

In a world-class example of gaslighting, President Trump blames Obama for not filling vacancies during his term. Nor was the confirmation circus in the Senate a comment on the competence or suitability of Amy Coney Barrett as an associate justice. This is about the functioning of the courts in America’s system of check and balances.

Judges fast-tracked into court openings created by the political maneuverings of one political party and one man in particular warp that system. The assumption of bias gets baked in even if future rulings aren’t assured.

Political parties can choose to name justices who reflect their political leanings, but lifetime appointments assume they will make decisions on the bench based on their role as the neutral arbiters they were intended to be. When both parties play fair by the spirit of the Constitution, the makeup of the judiciary should balance out over time.

Court packing can interrupt that balance or restore it. What’s important is the difference.

* Guest editorial from the Idaho Mountain Express in Ketchum, Idaho.

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