Posted by: distributorcap | June 28, 2010

Packing Them In

Tomorrow, the US Senate gets to start the next chapter in their never-ending quest to make the Obama administration look hapless and take the entire country down with it. On Monday, President Obama’s nominee to replace John Paul Stevens on the Supreme Court – Elena Kagan – begins her turn dodging the idiotic and pea-brained questions from people like Orrin Hatch and Lindsey Graham. The Kagan hearings begin and expect a full-frontal assault. Also expect a lot of chiming in from likes of half-term, half-wit Sarah Palin and two-ton, too evil Rush Limbaugh.

Back on May 17th, Senator John Kyl, the Senate’s Republican whip (probably the same whip used by Larry Craig), said he doesn’t see the GOP employing a filibuster against Kagan. “The filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that,” said Kyl, a member of the Senate Judiciary Committee.

Fast forward to June 27th, and the Republicans smell oil in the water. Sensing Obama is probably weak due to the endless oil gusher and the McChrystal mess, another one of the Lollipop Gang, Jefferson Beauregard Sessions, told CBS’ Bob Scheiffer on Face the Nation that that “a filibuster of Kagan is not off the table.”

Gee, I bet that change of heart was a “total surprise” to anyone who follows the Keystone Kops known as the GOP.

Now might be a good time to take a look back at another battle for the soul of the Supreme Court – Franklin Roosevelt and his vision for the nation’s court.

By the time FDR was re-elected for his second term in 1936, the Supreme Court had already stuck down several of his programs that made up the New Deal. Roosevelt felt the justices, were pretty conservative and pretty old would continue to be a thorn in his side as he attempted to pull the country out of the Depression.

One idea that FDR put forward proved to be one of the most controversial proposals of his entire 12+ years in office. Roosevelt wanted to expand the size of the Court by appointing an additional justice for each justice over the age of 70 years 6 months. This would continue until there was a maximum of 15 justices. Roosevelt said this proposal was floated with the goal of lessening the burdens of the elderly judges. But it was obvious the President was attempting to pack the Court with allies who would support the New Deal.

There were five conservative justices (Butler, McReynolds, Roberts, Sutherland, and Van DeVanter) who made no secret of their disdain of the New Deal. Four were more supportive (Brandeis, Cardozo, Stone and Chief Justice Hughes). Most had been on the Court for over 10 years (before the beginning of the Depression), and none were appointed by FDR.

The Constitution does not stipulate how many justices the Court should have, only that Congress “shall fix the size.” The original court had six justices. By 1863, this number had increased to 10. The Judiciary Act of 1869 set the Court at nine justices – and that is where it has remained for 141 years.

Roosevelt’s other choices – laws passed by Congress, mandatory retirements, fixed terms – all were more complicated and could (or would) require a Constitutional amendment. Roosevelt and his advisors set on the course of Court-packing in complete secrecy – and this proved to be disastrous for the President.

It won’t take more than one guess to figure out who was the first (and most vocal) group enraged by Roosevelt’s plan – the Republicans and the right. But even liberal and progressive Democrats thought FDR’s idea was a poor one – and either gave him tepid support or outright (and publicly) criticized the President.

In the election of 1936 – both the House and Senate had began the 75th Congress with huge Democratic majorities. The Senate was 76 Dem, 16 Rep, and 4 Ind. The House had 388 Dem, 88 Rep and 13 Ind. Roosevelt felt this was his time to push through Court reform.

In March 1937, the President attempted to sell his plan to the American public with one of his fireside chats on the radio. The public’s support was lukewarm at best – never getting higher than 49% in any poll at that time. Letter writing campaigns (some organized by the right, some by progressives) tallied around 9-1 against the proposal. Traditionally, legislation of this nature first goes before the House. Since Roosevelt failed to consult Congressional leaders before announcing the bill, the House Judiciary Committee refused to endorse the bill. FDR’s own Vice President – John Nance Garner – gave a public thumbs down to the bill on the floor of the Senate

Congressional Republicans (with only 20% of the representation) remained silent, watching as the Democratic party split itself over this proposal. But even with party numbers unseen in generations, FDR lost support with his own allies. Most of the members of Congress realized quickly that this was not Court reform, but a political ploy. By July of 1937 – the proposal was dead. It was a humiliating defeat for Roosevelt.

Interestingly enough, during the battle and after the defeat of FDR’s proposal, the Court began to shift. Owen Roberts began to vote with the liberals. Then conservative Willis Van DeVanter retired, allowing FDR to appoint a more “friendly” jurist. And in 1937, Congress approved a bill that would give Court Justices their salaries after they retired. Several announced they would retire after hearing that. By 1941 only two of the original 9 justices from 1933 were left – Stone and Roberts. Two had died (Cardozo and Butler) and the other 5 had retired.

Roosevelt had lost the battle (at a great cost) but ended up winning the war. The court was in his control.



  1. I love these posts that you do that show me things back in time that I was never aware of.

  2. then i will do more of them!

  3. Here's to your post! And to FDR — and to Obama — and maybe Cheney'll drop dead soon while we're toasting. May Obama get to choose more justices, enough to tip the balance back to TMarshall country. Here's to hoping'

  4. Let's just hope that the next time Obama aims for someone who is actually liberal. There are good candidates out there. Pick them.

  5. The Roberts court can't wait to sink us deeper into a depression. The rich got richer in the last depression also. *sigh*

  6. Gosh, I wonder how the party of NO will vote???

  7. Perhaps some of the bad ones in the herd will be kind enough to die.

  8. i'm hoping scalia and thomas are caught by the national enquirer in a cheap motel with hookers and that roberts and alito are caught in the next room with each other.

  9. nonnie for shame….shame on me for not thinking of that first. lolNice History lesson here. I think FDR of course was the bomb.He didn't start out that way but he sure did grow into the job.

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