The “packing claim is ridiculous, and was rated “false,” according to Politifact.com.(4) Roosevelt’s plan entailed adding Supreme Court justices, up to a possible 15. Obama’s three nominees are for existing vacancies. As judicial scholar Russell Wheeler notes, “Appointing judges to existing vacancies is not court-packing. It’s simply the way the system works.” (5).
Following the dubious claim the D.C. Circuit is underworked, Sen. Charles Grassley, R-Ia., offered legislation, backed by other Senate Republicans, that would permanently shrink it to 8 judges, effective immediately (conveniently – to ensure Obama cannot make any nominations). (6)
After piously supporting then-president Bush’s filling vacancies on the exact same court, Senate Republicans now zealously crusade to prevent Obama from filling even one vacancy. Sen. Patrick Leahy, D-Vt., nailed it in saying, “You know this has nothing to do with caseload. It has everything to do (with) who is president.”
Historically, Democrats do bear some responsibility for escalating conflict over the direction of the federal judiciary. In 2005, Democrats, then the Senate minority, initially blocked some Bush appointees to the D.C. Circuit, and Republicans threatened to end filibusters by the Senate minority party on judicial nominations — exactly the Democrats’ November 2013 action.
Here again, Republicans rely on false equivalencies. First, the 2005 crisis was defused by the bipartisan “Gang of 14” compromise, allowing confirmation of most Bush appointees, but allowing the judicial filibuster under (undefined) “extraordinary circumstances.” (7)
In 2013, there was no compromise. Second, in 2005, Democratic blocking of Bush’s D.C. Circuit nominees was selective and for a stated reason: some nominees, they argued, were too far right. By contrast, in 2013, Republican blocking of Obama’s D.C. Circuit nominees was absolute and categorical, and Republicans never offered any ideological objections to individual nominees.
So: Democrats sought to selectively block only some of Bush’s D.C. Circuit nominees, and at least stating a reason particular to individual nominees. Republicans blocked all of Obama’s nominees, categorically, across the board, giving no reason whatsoever. Any thinking person can divine Senate Republicans’ position today: This president will get no nominations through for the D.C. Circuit, period, end of story.