Packing the Courts

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The date was February 5, 1937. President Franklin Delano Roosevelt had just been reelected in a landslide, taking the Electoral College by a vote of 523 to 8 and winning the largest popular vote in history at the time. But FDR had a problem. There was a five-vote conservative majority on the Supreme Court. He was concerned they would do away with much of his sweeping New Deal legislation, like they did in A.L.A. Schechter Poultry Corp. v. United States, the “Sick Chicken” case, so called because the government claimed the company sold sick poultry as part of its effort to justify increased regulation.

The Court rejected the National Industrial Recovery Act (NIRA) in the case, holding that provisions that authorized the President to approve “codes of fair competition” for the poultry industry and other industries were unconstitutional. The law would have permitted the imposition of minimum wages, prices, maximum work hours, and collective bargaining. Congress delegated a great deal of authority to the president under the law. All good things from FDR’s point of view, but not from the Courts.

The federal government’s authority to pass laws in this area was based on the Commerce Clause, Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” But the Court construed the clause narrowly in Schechter Poultry and other cases involving New Deal legislation. By the time his second term began, FDR was concerned the Court would interfere with his plans. He’d already passed legislation to stabilize the financial sector, like the Securities Exchange Act of 1934, and measures to bring people back into the workforce, like the Civilian Conservation Corps and the Public Works Administration. Additionally, Social Security and the National Labor Relations Board had been created. But he was worried about the conservative faction on the Court.

So, using his massive victory as a mandate, President Roosevelt proposed a bill to expand the Supreme Court. His proposal was to add an additional Justice to the Court for each justice over the age of 70, up to a maximum of six new justices. In one of his fireside chats, Roosevelt told the country, “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government.” But there is plenty of evidence to suggest that what became known as the Court-packing plan was designed to change the balance on the Court.

Roosevelt’s legislation to pack the Court never came to fruition. But interestingly, after he made it public, the Court went on to affirm cases like National Labor Relations Board v. Jones & Laughlin Steel Corporation, which affirmed exercises of Commerce Clause powers similar to ones that it had previously disallowed. In NLRB v. Jones & Laughlin, the Court affirmed the government’s ability to regulate labor-management under the new National Labor Relations Act of 1935. This period on the Court is referred to as “the switch in time that saved nine,” because one of the sitting Justices had a seeming change in view, leaving the conservative majority to join with Justices who voted to sustain FDR’s New Deal legislation. Whatever his motive, “court packing” has come to be used more generically to refer to efforts by a president to reshape a court, and was offered as one of the key objections to Joe Biden’s Presidential Commission on the Supreme Court of the United States in 2021.

The only way to become a federal judge is by being initially nominated by a sitting president. That sets up one of the fundamental conundrums of the judiciary—a judge gets there by having sufficient political pull to be appointed, but is expected to leave it behind and be fair and objective once confirmed by the Senate. There is a push and pull between the merits of selecting judges via appointment versus through elections. Both have their pluses and minuses. The expectation in the federal system is that once appointed, judges have life tenure and need fear no reprisal based on how they rule; they are free to follow the law and the facts and exclude other considerations.

Presidents have appointed close friends to the bench, like Woodrow Wilson did with Louis Brandeis. But something unprecedented happens tomorrow when the Senate Judiciary Committee takes up the confirmation process for Donald Trump’s criminal defense lawyer, Emil Bove, to become a judge on the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

Trump touted the nomination, like he does virtually everything from missile strikes in Iran to his best golf games, on Truth Social. “Emil is SMART, TOUGH, and respected by everyone. He will end the Weaponization of Justice, restore the Rule of Law, and do anything else that is necessary to, MAKE AMERICA GREAT AGAIN.”

Not everyone agrees. It’s not just that Bove was Trump’s criminal defense counsel. As the Leadership Council for Civil Rights, a major civil rights group, put it in a letter they sent to members of the Senate, “Mr. Bove regularly demonstrates that his loyalty is not to the Constitution or the law, but to the president.” Bove is now the Principal Associate Deputy Attorney General at the Justice Department, one of Trump’s earliest confirmed leaders at DOJ. The PADAG is the number two person in the Deputy Attorney General’s Office, a high-ranking and powerful position at DOJ.

There were early concerns about Bove’s leadership. The New York Times reported in early February that Bove had “emerged as the Trump administration’s enforcer, demanding compliance and overseeing a series of personnel moves … Among them: the forced transfers of top nonpolitical officials seen as a bulwark against political interference, the firing of Capitol riot prosecutors in the U.S. attorney’s office in Washington and, perhaps most significantly, the effort to collect a list of F.B.I. agents assigned to Jan. 6 cases.” Bove signed the motion to dismiss the prosecution of Eric Adams, the New York City Mayor, who agreed to support Trump’s deportation plans in an unseemly sort of plea bargain that led the acting U.S. Attorney in Manhattan to resign, along with line prosecutors in both SDNY and main Justice. There were enough unsavory details in the unwinding of the case to give any other president pause about trying to convince the Senate to confirm the man responsible to the federal bench, but this is Donald Trump, and this is his compliant Senate majority.

On Monday, a video made by two of Bove’s former DOJ colleagues was released. They went on the record, saying they don’t trust him to be impartial if he’s confirmed, an unexpected public comment that underscores the seriousness of their concerns in an era when so many are afraid to take on this administration.

The bombshell came Tuesday morning. There was reporting in the New York Times that a whistleblower—former DOJ lawyer Erez Reuveni, who was fired after he conceded the truth in court, that Kilmar Abrego Garcia had been unlawfully deported—alleged Bove made statements about deliberately disobeying court orders when Trump invoked the Alien Enemies Act to justify deportations:

“Mr. Bove ‘stressed to all in attendance that the planes needed to take off no matter what,’ according to Mr. Reuveni’s account. Mr. Bove then broached ‘the possibility that a court order would enjoin those removals before they could be effectuated.’

‘Bove stated that D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order,’ according to the account. ‘Mr. Reuveni perceived that others in the room looked stunned, and he observed awkward, nervous glances among people in the room. Silence overtook the room.’”

Reuveni’s truthful statement in court ultimately got the 15-year veteran at DOJ fired. Republicans will undoubtedly characterize him as bitter because of that, and his allegations were denied by Bove's boss and former co-counsel, Todd Blanche, the Deputy Attorney General. But there were other people in the room as well. The reporting is likely to feature prominently in tomorrow’s Committee hearing.

Stacey Young, a former DOJ employee who is now the executive director and founder of Justice Connection, put it like this: “Erez Reuveni's allegations aren't unique - he is just brave enough to say publicly what many DOJ attorneys throughout the department have shared with us privately. They have been told by Department leadership that their primary duty isn't to enforce the law or uphold the Constitution, but to advance the President's political agenda. Emil Bove has been the enforcer - sidelining, demoting or firing employees of the highest integrity because they are perceived as disloyal. He should be nowhere near a federal bench.”

The Senate Judiciary Committee is chaired by Iowa Senator Chuck Grassley. The other Republicans on the committee are Lindsey Graham, John Cornyn, Mike Lee, Ted Cruz, Josh Hawley, Thom Tillis, John Kennedy, Marsha Blackburn, Eric Schmitt, Katie Britt, and Ashley Moody. If they belong to you, make sure you let them know how you feel about this nomination as soon as possible.

A vote for Bove, at this point, is a vote that says: It’s okay to f*** the courts; it’s acceptable to ignore decisions made by federal judges. The whistleblower reporting confirms much of what observers of this administration have increasingly suspected, given the way, for instance, in the D.V.D. case the Supreme Court ruled in last night, the government flouted a court order, paying lip service to it without complying in a transparent fashion, that everyone—except apparently the conservative majority on the Supreme Court—saw through. We may have a president who doesn’t believe in having courts that fulfill their constitutional role, but that’s no way to run a democracy. And it’s all the more reason to demand that senators reject Bove’s nomination.

Senators may think voters have short memories and the midterm elections are a long way off, but this is an electorate that marches carrying “due process” signs. We understand the courts matter.

FDR arguably wanted to pack the courts to help the American people recover from the devastating Great Depression. But he never succeeded in doing it. Putting Emil Bove on the Third Circuit would be a different sort of court packing, an extreme step in Trump’s efforts to place people on the courts who are loyal to him. Bove is one of his first nominees since the New York Times reported Trump is rejecting Federalist Society suggestions and asserting his own autonomy because he is angry at judges he has appointed who are unwilling to support his unconstitutional moves. It has always been about personal loyalty with Trump, from Jim Comey onward. That’s no way to select federal judges.

In the first Trump Administration, after Trump lost the election and was desperate to use his false claims of election fraud to overturn the will of the voters, he tried to install the head of the Environment and Natural Resources Division, Jeffrey Clark, as the Attorney General. As we learned during the January 6 Committee hearings, the reason was that Clark was willing to push Trump’s lies about election fraud, putting the weight of the Justice Department behind them. Now we are in Trump 2.0, and Trump has a new Clark, Emil Bove, who, if the whistleblower allegations are true, is willing to put his loyalty to the president ahead of his loyalty to the rule of law. These allegations will be tested in the Senate confirmation process, and if they hold up, he doesn’t belong on the bench.

Republicans hold the majority in the Senate with 53 seats, compared to the Democrats’ 47, including two independents who caucus with Democrats. Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska have sometimes joined Democrats on pivotal confirmation votes. Murkowski recently said she’d consider becoming an independent and caucusing with Democrats in certain situations. Pennsylvania Democrat John Fetterman is a question mark these days, something of a new Joe Manchin. It takes a simple majority, 51 votes, for confirmation.

Republicans are about to tell us if they still believe in the rule of law. Let’s make sure they know we’re waiting for the answer, and we will hold them accountable for it.

We’re in this together,

Joyce