Isabel wilkerson entered. Washington journal continues. Host we are back with richard , who is here to discuss with us the history of president s Court Roosevelt packing attempt. Good morning. Lets start with information for our cspan viewers. What does the constitution say about the size of the Supreme Court . Guest nothing, really, except that there shall be a Supreme Court and achieve justice. The number of justices is left of congress to prescribe. Host the only people who can decide on how many justices sit on the Supreme Court is the congress of the United States . Guest thats right. By ordinary legislation subject of course to the president s veto. Host what size did the Supreme Court start at . The constitution requires a chief justice. How many were there . Guest six at the beginning. It was an even number. In those days the nation was divided into judicial circuits. In those days the Supreme Court justices had real duties in each circuit. With respect to any given circuit. Congress thought six seemed to be about the right number and there were six justices. The even number did not last very long. Host that was going to be my next question. It went from six to how many . Adams andefly, john the federalists were on the way out he tried to reduce it to five to deny the incoming republicans a nomination. No andjefferson said bumped it back to six, and three years later to seven, and in 1837 went to nine. That is where it stood, except for a few years around the civil war. Then it was supposed to go down to seven, then back to nine. Host why has it stabilized at nine . What is the magic number that we have come to nine and we have stopped . Nine is an, i think odd number, which is good. Number. Pretty good it means there is a court large enough. There is some diversity. I think it is also, over time as sense that it really shouldnt be monkeyed around with. It is a norm of sorts, even though it is not constitutionally set that congress ought not to go around. Of course roosevelt tried and fell on his ear. Lets talk specifically about roosevelt. Most people know the term Court Packing from the roosevelt years. What was his rationale for trying to add seeds to the Supreme Court, and what happened . Guest the rationale he gave at the beginning was one that he knew wasnt real. He said we need to bring in younger people. It was presented as part of a Reform Movement for all the judiciaries. Younger justices. The way he proposed it was that retire by 70nt years and six months there can on thew judge appointed Supreme Court. Everyone recognized right away that roosevelt was frustrated by a conservative Supreme Court that rejected some new deal legislation, and he was trying to pack the court with appointees of his own, who would render more favorable decisions wil. The Court Packing began with roosevelt in an extraordinarily strong position, just winning the greatest landslide in over 100 years, the greatest ever to that point in our modern party system. He had an enormous majority in both houses. , the opposition mounted, including among , and various things happened including the retirement of one of the conservative justices. The Judiciary Committee issued a said theg report that likes of this proposal should never again be presented by the free representative of the free people of america. Which words that might still ring in their ears. It looked like roosevelt might be able to ge a couple of justices, but the majority leader was popular and hoped to get the first nomination. Evaporatored and the bill was tabled. Nothing affecting the Supreme Court was passed. Then because roosevelt had a thency, he filled it with liberal senator hugo black. Other vacancies occurred within three years. Roosevelt had appointed all but one member of the court. He got the liberal court he was looking for. Host has there been a serious attempt by any president since roosevelt to change the composition of the Supreme Court . Guest it has never been on the table until now. There really wasnt any serious attempt before roosevelt, since 1869. Host that brings us to today. What do you make of the current calls by some of the left to pack the court. Guest you can understand the. Rustration there was the 2016 vacancy which the senate said we arent going to act on that with a democratic president and democratic nominee. Mcconnell said the voice of the people should be heard. Now we have a vacancy in 2020 later in the year and mcconnell says, we have a president and a senate, we should fill that seat. Democrats are, of course, very frustrated by. Frustrated by it. If you are going to draw a line between february when Justice Scalia died and september when Justice Ginsburg died you think it would be the other way. That february was early enough and september is perhaps too late. Democrats are understandably and say if youre going to do that, we should use the power we will have, assuming biden is elected and a democratic senate. I am a democrat, but i have a strong feeling that if it had played out the other way democrats would have done something very similar. If it had been Justice Ginsburg, if she had died in february 2008, i dont think there is any chance with george w. Bush in the white house and a democratic senate, i dont think theres any chance they would have been willing to confirm a push nominee. Overrule roered to v. Wade. Democraticith a and democratic senate, my guess is they would be a rush to confirm. For all of the taco principles, we are really talking about power politics for all the talk of principles, we are really talking about power politics. Host we will open the regular lines. Republicans, 202 7488001. Democrats, 202 7488000. Independents, 202 7488002. You can text us at 202 7488003. Richard, we have a question from one of our social media followers. They want to know why is Court Packing synonymous with adding judges . Guest that is interesting. Addidea of packing means to. Im not sure if the question goes to the possibility of what v packing, and that has happened twice. I mentioned the early federalists tried to do it, and 1866it happened as well in when the republicans didnt want Andrew Johnson to get a nomination. They said the next couple of vacancies wont be filled. Packing means adding, because that is the easiest thing to do if you want to get control of the court. What i have called depacking would prevent a president from getting a nomination. I am hoping that i am addressing the question. Host i suspect the motivations for the question are we sometimes seem to have a negative connotation to the word Court Packing. You could call it court but what happened with roosevelt it seems like the term Court Packing has a negative connotation. Guest thats right. You could just talk about adding. I dont think roosevelt ever used the term packing. I think the negative connotation is because its understood to be. One for political purposes in the environment today, thats whatin the earlier days when the 1837, i dont in aipacit was so much i in that sense with that negative connotation, lets get control of the court. Of course, it did give the democrats in power extra nominations. That they needed to expand the court because of an expanding country and they wanted more circuits. That is right. You could just add justices. If iterybody would know were done for political purposes now. Host lets, let our viewers take part in this conversation starting with michael calling from wilmington, North Carolina on the democratic line. Caller i want to thank you for accepting my call. I have two questions. Harris was speaking about Abraham Lincoln on the stage when she spoke about when he packing not Court Packing, but late vacancies. As far as, he did not feel that he was right that it was right for the president at the time during the election not to pick another Court Justice until after the election. That is my first question, why did she mention that. My second question is, Kamala Harris mentioned during the debate that there were 50 people chosen to be picked from the list. Why out of all 50 on the list was there not a black African American . I want to understand why that was not mentioned, why that is being host go ahead. Guest i am not sure what you are talking about. I do not remember that part of the debate. Host you can answer his first question. Wny diedhief justice ta in october 12 of 1864 and lincoln did not make a nomination until after the election. Very doubtful as whether he would be reelected. , we dont have a lot of precedence for vacancies this late. That is the only vacancy, the only other vacancy that occurred or that close to an election. On the other hand, there have been vacancies. In 1916, for example, a vacancy trails in june went was nominated for the presidency and left the court to run against wilson. Get theas able to nomination to go through. To the extent that we are looking for president. June is early enough. October is very late. September is awfully close to october. But i dont know that tied in thes really senate these days in matters like this. Host our next color is calling from new york on the republican line. Dan, good morning our next caller. Caller good morning. My main concern is that the Supreme Court now needs more expertise in various technocratic and specialty areas which are very much lacking now. I am for Court Expansion because it is not the whole court that makes all the decisions every time. The Supreme Court judges that you can count on for some understanding in highly technical fields that they can adjudicate on without understanding the intrinsic problems, the physical problems that we have no control over. For example, environment and fracking. You would need a lot of expertise in there rather than some opposition to anyone idea of presenting facts. Ves selected you need someone who takes the things. Study those like in health, you need someone with a medical background. So the Supreme Court should be expanded with deference among the judges to the expertise of this one in that area, that one in that area. And we could make more rational than just some vague notion of the law which is very imprecise. Guest daniel, you raise some very interesting points. It is true that we have what we call a generalist court and we depend on that court to make decisions across the legal landscape. I think you are also right that in many areas, people who are knowalists say they dont what is going on, they dont have the expertise, and it can be frustrating. But the entire court does make decisions. It may be that in a given area, some of the justice will differ somewhat to a particular justice who has expertise, say if it is a justice in border law or indian law, that justices opinion may carry more weight. But they all seem to consider all the cases. There is no guarantee that if we or fouro justices justices or however many, that there would be any more Technical Expertise in patents or tax, or indian law or water law, or whatever. These days, justices have gone to elite law schools and most of them have some experience judging. I really dont think there is any guarantee of that sort. There are other ways to address the problem. Is,is that, what we do now in any case where there are technical issues, the court has the benefit of friend of the court briefs from various disciplines. Is a specialized handlese court that specialist issues like tax matters, patent matters. It would be possible to create certain courts of that sort. There have been proposals about sort for quite some time. I just dont have any confidence that adding justices would provide the projections the are mentioning. Host this whole conversation about Court Packing or Court Expansion, or adding georges, whichever term you want adding judges, whatever term you want to use, is going around the confirmation hearing of judge Amy Coney Barrett, Supreme Court nominee. Those confirmation hearings will on monday at 9 00 a. M. Eastern, and you can watch it here on cspan, on cspan. Org, or on the free cspan radio app. This is going on a few weeks before the election. Republicans say that history is on their side. Where do you come down with doing a Supreme Court nomination as close to a president ial election . Guest i think it is pretty close. I think if there were any norms that guidemal rules behavior, i would say that sometime august 1 should be the latest, august 1 or september 1, somewhere around there. After labor day, is pretty really. Wenderstand the view that are elected for all four years and all six years, but i think given that this is an appointment that is going to go future, i in the think it would be better to get the benefits of the next election. That, democrats would likely do the same thing. Once the event of mine is a democrat and he said, if it were reversed and the democratic if lincoln had said i would not make a nomination, the students said, i would be furious. So it is a matter of norms. But norms have been very much weakened. Host you another question from social media that says do you consider what the republicans have done with the lower courts Court Packing, and will do please explain why justices and other judges are appointed for life . Guest ok. Packing asnk court such. They have not been adding justices. I think the president came in vacancies to fill because the senate had made it difficult for president obama to fill them. And they have taken full advantage of the opportunities that they were given to them. It is hardball politics. Goes. I am sorry, the second question was why are justices appointed for life, it is a good question. Technically, they are appointed during good behavior, but no justices have been removed. Is, and thereea is some validity to the idea,hat it provides independence because it justice is appointed and presumably will have no higher ambition for any other office. It would be possible i think to achieve much of the same if we had say 18 year terms, which has been suggested. Host House Democrats are planning to introduce a bill that would limit justices to just 18 years, at which would allow every president to nominate two justices for fouryear term. What do you think about that plan . Guest it is an interesting proposal. The first reaction i had was that, it cant because additional because the constitution says judges are appointed during good behavior, which gives them essentially life tenure. But the proposals are interesting. They basically say, you are still on the court after 18 years, but you are a senior justice, Something Like that, and only the active justices sit. There is a possibility that that would work, though that would be upheld. The romantic in me likes the idea of life tenure because there have been many justices that have done good service well after 18 years. On the other hand, he has some very old justices will hang around in some cases for too long. It had some appeal, the idea that every president ial election, there are going to be two justices nominated. We know it is for a set term and we wouldnt have quite the same politicking when it justice leaves the court when a justice leaves the court in an Election Year like we do now. Calling froms south dakota on the democratic line. Good morning. Caller good morning, thank you for accepting my call. Is,first question i have you think the republican senators violated their oath of office when they failed to even consider it merrick garland, it seems to me that they are required to advise and consent and they didnt do either one with merrick garland. Secondly, i would like to ask what you think about the fact that every senator said that during an election, the people, the electorate should expresident , that should be the people that decide to the next Supreme Court pick is. Republicans, almost every republican said that should be y refusedwhen the to look at garland. And made the decision not to look into obamas pick. Thank you. So, i dont think they violated their oath of office. It says the President Shall nominate with the advice and consent of the senate. That means if the president gives the advice on the consent, the senate doesnt have to give advice and consent. The senate should be considering it. I think everybody would think there is some moment at which the senate can say, too late. Say in the lameduck session if the president has been voted out , many senators would say, no, i will not consider it. I think it is a matter of, when is too late . So, as i said, it is a matter of power politics. They said, we think we can hold doing doing this without too much damage to the court, so it will have eight members for a while but i can get by for that it can getout by for that time and without suffering political loss. It turned out to have been a good calculation on their part. Suggest i realize it is hypothetical, but there is always hypocrisy on both sides when it concerns matters of Supreme Court nominations. Think democrats would have done essentially the same thing if the situation had been reversed. For your second question, was it hypocritical . Sure, it is hypocritical. On,cconnell had said right as a democratic president , and we are a republican senate, we think we can hold off on this, there is only a year and we will , had, the court will do ok he not moved on this, he would have been hypocritical. Now it is republican senate, republican president , of course, we will take the opportunity. That is the reality of it. They just tried to dress it up in principle. I dont think there is any principle except the we have the vote except that we have the vote. Host our next caller is calling from florida on the republican line. Nelson, good morning. Caller good morning. Thank you for taking my call. Mr. Friedman, thank you for your complete and total honesty regarding all of this. In 1992, the Democratcontrolled Senate did not go forward with the nomination from george h. W. Bush. Its biggest offender at the time was joe biden. That eventually led to, as you know, the nomination and election of Ruth Bader Ginsburg to the Supreme Court after bill clinton became president. 2016, the republicans reminded everyone that that took place and they referred to it as the biden will. Of the biden rule. Of course, all of this has to do with politics. You are absolutely correct area i was just wondering perhaps if you could comment a little bit on the 1992 refusal on the part of the democrats to go forward with the nomination. It so happens that i do believe that mr. Garland should have received a fair hearing, but when i found out about the biden rule, i understand what has taken place. Guest there was no vacancy on areaupreme court in 1992 biden did make a statement to the effect that once a president ial election is on, that in nomination should not be made. So he has been consistent throughout. What theyam not sure made inthat was respect to, it may have been a vacancy on the lower court. There is no vacancy that occurred in 1992. Inre was one in 1991 then 1993. Justices have realized in recent years that they should not retire in Election Years. Thatt was just bad fortune two justices recently have died in Election Years to create this situation. Callingts talk to lynn from texas on the democratic line. Good morning. Caller good morning. , the thing i when the question Electoral College took effect in was1980s, 1985 when reagan this give me that the gov. Lamont votes the president won. If you best the total a of votet the president won. If you could look at that for me , the total amount of votes when that took effect. Guest i am not sure i understand the question. Host i think that was a little offtopic. He was wanting to know the total amounts of votes for reagan and carter. I dont think either one of us has the answer to the question immediately. Let me go to a question asked by one of our social media followers. We are talking a lot about Court Expansion. Congress could also reduce the Supreme Court. Our social media followers wants to know, if scotus seats were reduced to seven from nine, how would that be decided . 70m age of justice, already opposition held, last in first out . Sydney rt of position held seniority of position held . Last in first out . Way withe only historical precedent would be attrition. Saying that have two vacancies would not be filled. It was because edition in the it would because constitutionally dicey. You could say that we are going to make senior members of the court and they wouldnt vote unless there is a vacancy, but i dont know that that would fly. Attrition is the normal way to do it. I didnt want to make a point of oft, i am not an enthusiast Court Packing, adding justices. I think it is good if we have a Supreme Court and we want that court acts like a court where it is and not just sit around for medical purposes. Having said that, this is a little bit different from roosevelt in 1937 in that roosevelt was upset with what the court had done. Here, if congress were to pack upseturt, it wouldnt be with what the court has done, it would be upset with what the senate has done. I dont think that is enough to make a difference. One thing that occurred to me that if congress were to pack, if they could do, it could pack epack at the same time. It could say, we are adding to seats now but the next two vacancies will not be filled. Essentially saying, because of what the republicans were able to do, we think that was dirty, so we are counterbalancing that with two seats now, or even possibly want. Possibly one. We dont mean to alter the historic way of keeping justices at nine. It would be like you started it, we ended it. It sends a signal that we are not trying to just grab next to nominations. It would mean that doing the following four years, if another vacancy occurred, the president would not get to pick it. That is, if the court is going to be packed, i think that would be a somewhat better way to do it. Host i want to ask this again. Does the Supreme Court have any say in any of this . Just political moves being made by the senate and the president in the house . Does the court have any say in this at all . Guest the court has no formal site if Congress Wants to expand it took 15 or 70 or whatever. Be number would constitutional. Attempt were made to have byectively term limits, making some justices senior justices who dont sit on the court, ultimately that would be presented to the court as was constituted and would have a say. The court could have an informal say in Court Packing. Hughes, chief justice wrote a letter that said, hey, we dont need this for efficiency purposes. That was thought to have some political impact. So the court was word from batted in have a formal role the court was heard from but it world. Have a formal host eva is calling from georgia on the republican line. Good morning. Caller i think that voters generally know little about the court. Little evidence exists that the public cares about this for a this about this fight, even though polling routinely puts in Supreme Court is an issue the election since Justice Ginsburgs death. Is still remains clear that it is health care and the economy surveys. I looked at the 2018 cspan survey and i found that 62 of americans couldnt even name a single one of the nine justices. Even as overwhelming likely voters said they believe the court plays a major role in shaping their lives. The survey released that Court Packing term, that if you happen to come upon a political flashpoint. Woman. Suburban and i am voting for the bidenharris ticket. Not because of the court, but because of health care, because of our children needing a future, because of my 90yearold mom who is needing to have the safety and security of being in an assisted living facility that we have not been able to visit. Because we have lost many and we have not been able to bury our loved ones. More importantly, cspan, who i really appreciate, we have an electorate that is informed, educated and understands that we no longer can be a party, we have to be an American Country now that creates a future for our lives and our children. Host go ahead and answer that, richard. Guest thank you very much. I agree that sometimes the role of the court is over inflated, and obviously there are many more issues that are pressing and significant to the lives of ordinary americans, as you are suggesting. I agree with that. I believe the court has played such a large role in political discourse over the years mainly because of one issue, and that is abortion. I actually think that has worked to the disadvantage of democrats. I have a long theory that not only would democrats be helped ,f roe v. Wade were overruled but relatively soon, Abortion Access might actually be improved because it is not very good now. Political landscape would for the democrats if it were just fought over in legislative elections. That there is a lot going on that is going to affect our lives more immediately on a daily basis. Host what does all of this conversation around the court and confirmations of justices, what does it have to do with the opinion of the court in american eyes . For example, we have aa 10 u. S. Rt that 7 in adults said they have a favorable view of the court, that includes two thirds of democrats and democraticit leaning independents. What is this doing for the repetition of the court . Guest anything that makes the court appear to be a more Political Institution is not helpful. We dont need a Political Institution. We have the elected presidency and the elected congress. To the extent that the court seems to be a result of the elections, and we expect it to , it becomes will like any other sedition and ines some of its value American Public life and loses some regard of the american people. I think it is unfortunate. If nominations and confirmations seemed to be less political, it would be a good thing. I think if abortion were not so much a flashpoint, i think ultimately those numbers might even go higher. Host we would like to thank Richard FriedmanSupreme Court historian and university of Michigan Law School professor for being with us and taking us through the law and history of Court Packing expansion. Thank you so much for your time this morning. Guest i enjoyed live coverage on cspan and cspan. Org. Be sure to visit cspan. Org to review a playlists of Amy Coney Barrett political views