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Memos & Media Guidance
Decoding the Radical Right: The Republican Party’s “Court Packing” Dodge
To: Interested Parties
From: NARAL Pro-Choice America Research
Date: October 16, 2020
AT A GLANCE: The GOP has made it clear they’re willing to do whatever it takes to capture the court and stack it with right-wing activist judges, eroding and undermining our democracy at every turn. They are trying to deflect from their own actions by pushing a theoretical conversation about what the Democrats might do if they gain power to rebalance the courts and restore legitimacy to the judicial branch.
Trump and his cronies are facing increasing scrutiny of their blatant attempts to stack the courts in their favor, voter suppression efforts, authoritarian tendencies, and catastrophically failed leadership. So they’re doing everything they can to create false equivalence between their documented and historic abuses of power and any efforts Vice President Joe Biden may take to fix it, should he win in November.
THE COURT STACKING IS COMING FROM INSIDE THE WHITE HOUSE
The Republican Party has been waging war on our judiciary for decades. As a shrinking minority that can’t win on the merits of their arguments, they’ve pinned their hopes on controlling the branch of the U.S. government least accountable to voters and yet wielding tremendous influence. They’re the ones who have been (and still are) packing and stacking the courts in their favor—in a desperate attempt to advance their unpopular ideological agenda.
- Republicans blocked 103 nominees during Obama’s presidency, ensuring those seats were open and ready to be packed by Trump. The Trump administration and Senate Republicans have confirmed 218 judges and counting—more than any previous Republican president. (Amy Barrett only became a circuit court judge because Republicans blocked Myra Selby, a Black woman, from being confirmed to the seat.)
- They also stole a Supreme Court seat, holding it open for nearly a year and ensuring Trump had one extra seat to stack.
- If Hillary Clinton had won the 2016 election, Republicans even had plans to hold open that seat indefinitely, effectively reducing the size of the Supreme Court from nine seats to eight to ensure conservatives controlled at least half of the bench.
- And as a recent study showed, the Republican Party is also engaging in aggressive court-packing efforts at the state level.
It’s worth noting that while they were clearing the way for Trump to stack the courts with far-right ideologues, Republicans used the same rhetorical trick: brazenly accusing Obama of “court packing” for trying to fill judicial vacancies through the normal process. We’ve come full circle.
REPUBLICANS DEFLECT BY ACCUSING OTHERS
Republicans keep trying to put words in Biden’s mouth, yelling about hypothetical plans to “pack the Supreme Court” because they are trying to turn attention away from the immediate damage they are doing to our nation’s election infrastructure, our courts, and ultimately our democracy.
It seems every Republican leader got the memo:
- Trump fear mongered about supposed Democratic plans to “permanently destroy the Court,”
- Pence claimed that Democrats “can’t win by the rules” so they want to “change the rules,”
- Senate Majority Leader Mitch McConnell imagined a “nakedly political scheme to pack the Supreme Court,”
- Senator Ted Cruz warned of a coming “partisan power grab” in the courts,
- and Republican National Committee Chair Ronna McDaniel stoked fears about “the biggest power grab in history.”
- There are many more examples.
We are, in fact witnessing a nakedly political, massive and partisan power grab—maybe the biggest in history—driven by a party that can’t win legitimately and is on the brink of permanently destroying the integrity of the Supreme Court. But Democrats aren’t the ones behind it.
DON’T LET THEM DISTRACT YOU — DEMOCRACY IS AT STAKE
The real story isn’t what hypothetical action Joe Biden might take to try and salvage what’s left of our democracy if it’s able to survive the next few weeks of Republican attacks. The story is that our democracy is under attack.
The modern Republican Party was built to enforce old systems of privilege despite a rapidly changing society, and these days, it’s hard to find a major issue on which the public actually sides with the Republican position. On reproductive freedom, racial justice, healthcare, LGBTQ equality, climate change, and so many other issues, Republicans are fighting against public opinion, and losing by large margins.
The reality is that they can’t win free and fair elections—so they’re not even trying:
- Trump said the quiet part out loud when he admitted that the Republican Party needed voter suppression efforts, otherwise “you’d never have a Republican elected in this country again.”
- Top Republican donors and activists staged a series of closed-door meetings where they discussed strategies to suppress Democratic votes.
- Outside groups have committed tens of millions of dollars to wide-ranging voter suppression and intimidation efforts.
- And Trump’s campaign individually targeted 3.5 million Black voters in 2016 in an effort to prevent them from voting.
All this while Trump and Pence both refuse to commit to a peaceful transfer of power—and their latest Supreme Court nominee (who Trump has said he wants seated in time to rule in his favor on any election-related cases) refuses to weigh in on whether they should.
At this point, there’s no doubt: Republicans are pursuing a blatantly partisan power grab that might just destroy our democracy. They’ll do everything they can to get us to look elsewhere. It’s our job to keep the focus on this very real threat to democracy, our rights, and our freedoms.