Four Times the Left Peddled Fake News About 'Court-Packing,' and Why It Doesn't Mean What They Say It Does

Brittany M. Hughes | October 12, 2020
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Either Democrats are taking advantage of Americans' general lack of civics knowledge, or they're lacking that department themselves. But regardless of their reasons, when it comes to the issue of "court-packing" and the confirmation of SCOTUS nominee Amy Coney Barrett, the left is pulling out all the stops - including ignoring, rewriting or outright lying about history - to try and get what they want.

Here are four outright falsehoods Democrats have peddled about "court-packing," and why each one of them is dead wrong.


1. Sen. Dick Durbin accused Republicans of “packing the court for the past three and a half years.”

“The American people have watched the Republicans packing the court for the past three and a half years, and they brag about it,” Durbin said on NBC’s “Meet the Press.”

“We are dealing with people on the court, packing into the court, with little or no qualifications for a long time."

Rating: false, on the simple basis that this is not the definition of “court-packing.”

The term “court-packing” stems from a suggestion in 1937 by then-president FDR that the Supreme Court should be expanded, enabling the president and his same-party Senate to then fill those newly created seats with certain judges for political gain. Despite its albeit confusing moniker, the term “court-packing” does not mean simply filling already vacant seats, as allowed by the Constitution. 


2. Mazie Hirono echoes the false definition of “court-packing."

“I'm really concerned about the court packing with the ideologically driven nominees now sitting on the court, some 200 of them, that Trump has been putting on the court, aided and abetted, of course, by Mitch McConnell," Hirono said.

Rating: false. Again, that’s not what “court-packing” means. Regardless of whether you think certain judges are ideologically minded, or that they were appointed because of it, unless the court is expanded from its current size, it’s not court-packing.


3. Congressional Candidate Pam Keith accused Republicans of “hypocritical rule breaking court packing” by considering Amy Coney Barrett for the bench.

Rating: false, and not just because Keith, like Durbin and Hirono, doesn’t know what “court-packing” is. The Senate’s consideration of Barrett to the Supreme Court also doesn’t break any rules – official or unofficial. The Constitution includes no stipulation saying that a president cannot nominate SCOTUS replacements during an election year, nor does it bar the Senate from confirming them. In addition, not only is nominating a Supreme Court pick just before an election perfectly constitutional, it’s also not without precedent.

4. Former news anchor Dan Rather accused Republicans of “court-packing” when they rejected President Barack Obama’s SCOTUS nominee, Merrick Garland.

"Can we at least recognize that “Court Packing” at all levels of the judiciary has been the Republican playbook for decades? Asking for Merrick Garland," Rather wrote on Twitter.

Rating: false, and not just because rejecting a SCOTUS nominee – for any reason – isn’t the definition of “court-packing.” When Obama nominated Garland in 2016, the Republicans held the Senate, meaning they were in a perfectly constitutional position to block any SCOTUS nominee from the bench until after the election. Had the framers not intended the Senate to have such power, they would have written it into the Constitution that a president could simply appoint any justice he wanted without having to run it through any process whatsoever.

They didn’t.

Regardless of your stance on Amy Coney Barrett (to whom the American Bar Association just awarded their highest rating, by the way), one thing remains true: nominating and appointing someone to fill a currently vacant seat on a court is not "court-packing," no matter how many times you scream it or how many partisan games you try to play.