Lankford Quotes then-Senator Biden’s Own Words to Oppose Packing the Supreme Court
CLICK HERE to watch Lankford’s remarks on YouTube.
WASHINGTON, DC – Senator James Lankford (R-OK) spoke on the Senate floor in opposition to Democrats’ persistent and increasing calls to pack the Supreme Court under President Joe Biden in order to help protect their progressive agenda from Supreme Court challenges for generations. This week, Lankford notably quoted remarks from the late Justice Ruth Bader Ginsburg and then-Senator Biden about the dangers of increasing the size of the court and the disastrous consequences of letting temporary ideological ebbs and flows impact our long-term government institutions.
Lankford joined Senator Steve Daines (R-MT) to introduce a resolution condemning a Democratic proposal to increase the number of Supreme Court Justices on the bench from nine to 13.
For most of the history of the United States, we’ve had nine Supreme Court Justices, nine. Now, we started out originally with six, and then it dropped for just a little while to five, and then it went right back to six again. When we added a seventh circuit court in 1807, it popped from six to seven. There was some discussion about whether it would just continue based on the number of circuit courts. And it was determined, no, it was a bad idea. So then it went to nine in 1837. Lincoln actually added one to ten, and then they determined that’s really too many and brought it back down to seven, actually. In 1869, we went back to nine again, where we were most of the time before that and where we have remained. Nine Supreme Court Justices. That’s not just a random number. It seems to be a pretty good number, nine, to be able to open up debate.
I don’t just think it’s a pretty good number. There’s a rather famous, and some would say notorious, Justice named Ruth Bader Ginsburg. She made this statement in 2019 when asked about Court packing and asked about increasing the size of the court. In 2019, Ruth Bader Ginsburg said, ‘Nine seems to be a good number. It’s been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court. If anything, you would make the court look partisan.’
That’s not just one Justice. Early in August of this year, Justice Breyer was speaking at the Harvard Law School, and he addressed this issue of Court packing. While this body is in the middle of a conversation about Court packing. Extremely rare for that to occur. Justice Breyer stated ‘I’m an optimist. The rule of law has weathered many threats, but it remains sturdy. I hope and expect the Court will retain its authority, an authority that my stories have shown were hard won, but that authority, like the rule of law, relies on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that matter of perception, further eroding that trust. There is no short cut. Trust in the courts without which our system cannot function requires knowledge, it requires understanding, it requires engagement. In a word, it requires work. Work on the part of all citizens, and we must undertake that work together. What I’m trying to do is to make those whose initial instincts may favor important structural change, or other similar institutional changes, such as court packing, think long and hard before they embody those changes in law.’
That was so well received by Justice Breyer that progressive activists started calling for him to take early retirement.
Court packing. It’s not new in a conversation in this body, but it’s not been well received in the past. Now, the Court has always ebbed and flowed in its liberal or conservative events. President Obama spoke openly when he was president about the court in the 1960s. That was a very progressive Court in the 1960s that drove conservatives crazy with some of the decisions they made. There was no packing of the Court to try to change the direction of the Court in the 1960s and 1970s. It was a frustration, but a realization, nine was the right number. And over time, the court, as it does, as it ebbs and flows over the decades, it’s flowed to be more conservative.
In the days ahead at some point, it will flow to be more liberal. It just will. But the rule of law is important. It’s not a new concept that’s being addressed, but it’s one this body should think long and hard about. Quite frankly, I agreed with Joe Biden on this concept. Not the President Joe Biden, the Senator Joe Biden. With this body’s permission, let me just read Joe Biden’s speeches when he was in the United States Senate, and he stood right over there and spoke on this floor, or spoke in committee hearings when he was in the Judiciary Committee, speaking often about this issue. Joe Biden once speaking made this statement.
He said, ‘President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court. It totally was within his rights to do that. He violated no law. He was legalistically, absolutely correct, but it was a bone-head idea’ Senator Biden said. ‘It was a terrible, terrible mistake to make it and to put it into question for an entire decade the independence of the most significant body, including the congress, in my view, the most significant body in this country, the Supreme Court of the United States of America. The president has the right to do that. He was totally within his power, and his objective was clearly seen.’ While the president clearly has the right to do what he is doing, in my view, but he also called it bone head.
Joe Biden as senator also continued with this statement. He was discussing this same issue. He said ‘The Senate again stood,’ by the way, this was two decades later after Joe Biden made that statement I just read. Two decades later, Joe Biden still has the same passion. He stated this. ‘The Senate again stood firm in the 1937 Court-packing plan by President Franklin Roosevelt. This particular example of Senate resolve is instructive for today’s debates, so let me describe it in some detail. It was the summer of 1937, and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a congress made up of some solid new dealers, but the old nine men of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress and from the state houses across the country. In this environment, President Roosevelt unveiled his Court-packing plan. He wanted to increase the number of Justices on the Court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt’s own party stood up against his institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism. In May, 1937, the Senate Judiciary Committee, a committee controlled by the Democrats and supporting those political ends, issued a stinging rebuke. They put out a report condemning Roosevelt’s plan, arguing it was an effort to punish the Justices that executive branch attempts to dominate the judiciary lead inevitably to an autocratic dominance, the very thing against which the American colonies revolted, and to prevent which the constitution was in every particular, framed. Our predecessors in the Senate showed courage that day and stood up to their president as a colloquial institution, and they did so not to thwart the agenda of the president which, in fact, many agreed with. They did it to preserve our system’s checks and balances. They did it to ensure the integrity of the system. When the founders created a different kind of legislative body in the Senate, they envisioned a bulwark against unilateral power. It worked back then, and I hope it works now’, said Joe Biden during that time.
‘The noted historian, Arthur Schlesinger, Jr.,’ this is Joe Biden continuing as Senator, ‘The noted historian Arthur Schlesinger Jr. has argued that in a parliamentary system, President Roosevelt’s efforts to pack the court would have succeeded. Schlesinger writes ‘the Court bill couldn’t have failed if we had a parliament system in 1937. A parliament legislature would have gone ahead with their president. That’s what they do. But the founders envisioned a different kind of legislature, an independent institution that would think for itself.’ In the end, Roosevelt’s plan failed because Democrats in Congress thought Court packing was dangerous, even if they would have supported the newly constituted Court’s rulings. The institution acted as an institution. In summary then, what do the Senate’s action of 1795, 1805, and 1937 share in common? I believe they are an example of this body acting at its finest, demonstrating its constitutional role as an independent check on the president, even popularly elected presidents of the same party,’ end quote, from Senator Joe Biden.
This challenge to this body to think long and hard before they destroyed an institution of our government was right there. It’s right now. And a final statement from Joe Biden. He spoke about the filibuster, often, actually, about the filibuster. Senator Biden stated this ‘the framers created the Senate as a unique legislative body designed to protect against the excesses of temporary majority. Including with respect to judicial nominations, and they left us all the responsibility of guaranteeing an independent federal judiciary, one price of which is that it sometimes reaches results senators don’t like. It’s up to us to preserve these precarious guarantees. Our history, our American sense of fair play, and our constitution demand it.’
Joe Biden continued as Senator. He said ‘I would ask my colleagues who are considering supporting the nuclear option, those who promised to jump off the precipice, whether they believe that history will judge them favorably. In so many instances throughout this esteemed body’s past, our forefathers came together and stepped back from the cliff. In each case, the actions of those statesmen preserved and strengthened the senate to the betterment of the health of our constitutional republic and to all of our advantage. Our careers in the Senate will one day end, as we are only Senators temporarily, but the Senate itself will go on.’ Will historians studying the actions taken in the spring of 2005, when Joe Biden stated this in the Senate, will they look upon the current members of the Senate as statesmen, who placed the institution of the United States Senate above party and politics, or will historians see us as politicians bending to the will of the executive and to political emergency?
‘I, for one, am comfortable with the role I will play in this upcoming historic moment,’ he stated. And then he stated this, from Senator Joe Biden ‘I hope my colleagues will feel the same.’ So do I. Listen, in the days ahead, history will look at the unwinding of the judiciary based on a season in the Supreme Court, as we have had seasons and cycles before. Don’t unwind the judiciary for a season.