When President Franklin Roosevelt faced a Supreme Court that questioned the constitutionality of some of his policies, he infamously sought authority to appoint additional justices to the Court.  The proposal was rightly derided as politically-motivated “court packing,” and in 1937 the Democrat-controlled Judiciary Committee dealt the Administration a serious blow when it rejected the plan by a 10-8 vote.  The Committee issued a scathing report on the bill saying, “It violates all precedents in the history of our Government and would in itself be a dangerous precedent,” motivated by a desire “to change the course of judicial decision.”  The Committee concluded that the bill constituted “an invasion of judicial power such as has never been attempted in this country.” (The full report is available here.)

Almost 75 years later, President Obama and his congressional allies have asserted ever broader claims for federal power, many of which will eventually come before the Supreme Court.  Naturally, Democrats may be apprehensive about how the Court would rule in some of those cases.  All the more so since the newest Justice, Elena Kagan, is, as today’s Wall Street Journal observes, “expected to recuse herself from some 25 cases that she was involved with as Solicitor General, which would mean one fewer vote for the court's liberal bloc.”

Judiciary Committee Chairman Patrick Leahy, who has joined fellow Democrats and the White House in baseless attacks on Supreme Court decisions not to their liking, has a proposal to get around this difficulty.  He would like Congress to pass legislation to authorize retired justices to sit in for any justice that might recuse him or herself.  The stable of retired justices currently includes two reliable liberals, and one centrist who has trended left (especially on some high profile matters).  Allowing them to participate in cases over the next two terms can reasonably be expected to tilt the Court further to the left.  This proposal isn’t quite as brazen as the “court packing” proposal rightly rejected in 1937, but similar concerns are raised that critics of the Court are seeking to tamper with its composition.  Some may ask whether such legislation amounts to politically motivated tampering with the composition of the Court to affect case outcomes.

This is not Chairman Leahy’s only proposal to tinker with the composition of the federal judiciary in a manner highly advantageous to Democrats.  He has also proposed to dramatically expand the number of judgeships in the lower courts.  Rather than supporting a bipartisan proposal that would authorize such judgeships to begin after the next presidential election (when the identity of the party controlling the White House is unknown), Chairman Leahy supports legislation that would create these judgeships immediately so that President Obama can fill them.  When Republicans held the White House, Chairman Leahy preferred legislation that would not become effective until after the next election.  Given some of the extreme nominees pushed by the Obama administration, including the five re-nominated last month, observers have every reason to be concerned about the current Leahy proposal.

The Rule of Law and the independence of the federal judiciary are hallmarks of our constitutional system.  While the Supreme Court, and other federal courts, should never be beyond criticism, nor should their very composition be tinkered with for perceived partisan gain.  The role of the Senate is to provide advice and consent on nominations to the judiciary, to judge those judges impeached by the House, and to make administrative provisions for the effective operation of the courts.  Any other changes to structure or procedure that could be perceived as an attempt to “change the course of judicial decision” must be resisted.