From FDR packing to 1960 resolution, SCOTUS justice controversies

Asso. Justice Scalia

Photo: US Supreme Court portrait of Asso. Justice Antonin Scalia, one of three who are fit to serve. The others are Asso. Justices Clarence Thomas and Samuel Alito.

Upon hearing the news Supreme Court Justice Antonin Scalia had passed, many of us who hold in high regard the US Constitution and Bill of Rights were shocked. Scalia wasn’t just a justice; he was an institution. His views on originalism—an approach to interpreting the Constitution—and the role of the court were well thought and more prudent than the majority of those who currently serve.

Even when I might not like an opinion Scalia rendered, and that was admittedly rare, I appreciated his reasoning and careful approach.

Now President Barack Obama and his party will do everything possible to get a replacement through before Obama’s final year ends.

Republicans have vowed to keep Obama from doing that.

Obama’s move and Republicans’ response were certainly to be expected by everyone, even casual observers of politics. Disagreements over Supreme Court appointments are nothing new for Dems or the GOP.


Democrats aimed to obstruct Republican presidents’ nominees. None other than Sen. Chuck Schumer (D-NY) led the pack in 2007 although the president he targeted had more than a year left in his final term:

“During a speech at a convention of the American Constitution Society in July 2007, Schumer said if any new Supreme Court vacancies opened up, Democrats should not allow Bush the chance to fill it ‘except in extraordinary circumstances.’

‘We should reverse the presumption of confirmation,’ Schumer said, according to Politico. ‘The Supreme Court is dangerously out of balance.’” [The Daily Caller, via Politico]

None should be surprised at Schumer’s double standard in the interest of politics. After all, it was Schumer, one of the most powerful men in Congress, whose infamous IndyMac letter sent the US financial house of cards scattering across the globe. CNBC, certainly no rightwing stronghold, explained Schumer’s dastardly deed in the 2008 article, How Chuck Schumer Caused the Second Largest Bank Failure in US History.

For politicos like Schumer, the policy will always be party over country. That is a given.

At times, opposition to nominees has been bipartisan, although Dems have fared better than Republicans in recent times. George W. Bush nominee Harriet Miers ended up being withdrawn from consideration, in part because many were concerned about her closeness to Bush.

In sharp contrast, current associate justice Elena Kagan had a long history of Democrat politics activism and was employed by Bill Clinton’s administration. She was confirmed by the Senate after Obama appointed her.


Schumer and his fellow Democrats appear to be suffering a memory lapse that predates 2007.

Back in the day when history was taught in US classrooms, many of us learned about Franklin D. Roosevelt’s attempts to pack the Supreme Court. His effort, launched because like the current president and some members on both sides of the aisle in Congress, FDR simply could not abide anyone bucking his big government expansion.

Dissatisfied with the refusal of Supreme Court justices to retire (or perhaps die), thereby preventing his ability to load the court with socialist enablers, FDR attempted to “pack” the court. There was nothing in the Constitution specifying the number of justices, so FDR saw this as a means to his ends. The New York Times featured a fairly balanced explanation of FDR’s plan to pack the Supreme Court:

“Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.”

FDR’s plan may have failed, but it sent a signal, and the Democrat president who served far longer than he should have ended up doing pretty much whatever he pleased. Historians may adore him for his leftist policies, but personally, I think he was one of the worst politicos to ever take the Oval Office.

People in some areas of the US came close to starving because of FDR’s policies. For more about the fiction historians have often woven about the Great Depression, see the excellent booklet Great Myths of the Great Depression.


George W. Bush wasn’t the only president in recent times to face Dems’ wrath over nominees. President Ronald Reagan also deal with rejection:

“But with the retirement of Lewis Powell in 1987, Reagan faced his biggest challenge with the Senate over Supreme Court nominations. His final candidates included [Robert] Bork and Senator Orrin Hatch. A constitutional provision about pay raises given by the Senate to Justices became a barrier to any Hatch nomination.

So on July 1, 1987, Reagan said he would nominate Bork to replace Justice Powell. A firestorm soon erupted as Senate Democrats, led by Ted Kennedy, attacked Bork’s position on legal matters they opposed. The Democrats also controlled the majority of the 100th Congress, and on October 23, 1987, Bork’s nomination was rejected by a 58-42 vote.

His nomination was one of only four rejected by a Senate vote in the 20th Century.

Reagan’s next nomination was a more moderate conservative, Douglas Ginsburg, but a controversy over Ginsburg’s marijuana use led to the judge withdrawing his name before he could be formally nominated.” [The Constitution Center]

Ironically since Reagan’s day we have had three presidents—two Democrats and one Republican—admit  to using various drugs in their past and none were penalized in any fashion.

Anyway, the obstruction of those two Reagan nominees is how we ended up with squishy justice Anthony Kennedy.


In a rare moment of objectivity, The Washington Post acknowledged just how far Democrats had, in the past, gone to protect their SCOTUS ambitions:

“ [I]n August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” 

Unfortunately, in recent years, party has once again risen above country and the Constitution with certain appointments resulting in the outrageous decision over the Patient Protection and Affordable Care [Tax] Act. That was a true instance of justices legislating from the bench, and the act is unconstitutional regardless of sophistic claims to the contrary.


Does a law actually mean what it says? Does the Constitution mean what it says, and the Bill of Rights? A leftist would say, no—the Constitution is flexible and interpretation should change with the times, but that makes no sense.

The amendment process is the legal means of changing the US Constitution.

I said when I learned of Scalia’s death that the US Constitution and the Bill of Rights had lost their most ardent defender. Scalia wrote a remarkable book, for those still willing to tackle a challenging read, Reading Law: The Interpretation of Legal Texts. There are many quotable passages, but one early on seems perfect for these times:

“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning. Nontextual interpretation, which makes ‘statesmen’ of judges, promotes the shifting of political blame from the political organs of government (the executive and the legislature) to the judiciary.” [pg. xxviii]

Perhaps with the PPACA (Obamacare) in mind, Scalia also wrote, “We seek to restore sound interpretive conventions…” and he explained that doing so would “discourage legislative free-riding, whereby legal drafters idly assume that judges will save them from their blunders.”

Scalia was the gatekeeper of reason and liberty on the Supreme Court. He cannot be replaced, but it is vital to keep a semblance of balance on the court and make sure Americans have someone who respects what the Constitution, Bill of Rights, and laws actually say instead of conjuring fairy tale versions of what a congressman may or may not have meant and failed miserably, perhaps intentionally, to convey.

Finally, it’s useful to remember that although the Constitution stipulates the president “shall nominate…judges of the Supreme Court,” there’s a stipulation that nomination is done “by and with the Advice and Consent of the Senate.”

The GOP should hammer this message, just as Democrats have when the shoe was on the donkey’s foot.

Additional Reading: “Supreme Court Nominations Not Confirmed, 1789-August 2010; report from Congressional Research Service” posted at The Federation of American Scientists.

(Commentary by Kay B. Day/Feb. 15, 2016)

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About Kay Day

Kay B. Day is a freelance writer who has published in national and international magazines and websites. The author of 3 books, her work is anthologized in textbooks and collections. She has won awards for poetry, nonfiction and fiction. Day is a member of the American Society of Journalists and Authors and the Authors Guild.
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