Another Perspective

The Raw Deal

Next to FDR's efforts to expand executive power and pack the courts, G.W. Bush is a piker.

By 2.7.06

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The Samuel Alito Supreme Court nomination hearings are now a part of history, but snippets of the Democratic Party's accusations and name-calling live on. Sen. Dick Durbin (D-Ill.) dramatically lamented that "a chill wind blows," presumably across the facade of the Supreme Court building. In actuality, the entire D.C. landscape was engulfed by great gusts of hot air emanating directly from the Judiciary Committee hearing room.

As is their custom, Senate Democrats revealed their disdain for or ignorance of the U.S. Constitution as written. Sen. Pat Leahy (D-Vt.) reminded us that President Bush promised to be a uniter not a divider and that there were many judges he could have nominated that would have united the country and been a unifying choice. Sweet-sounding though this sentiment may be, it is not the job of the Court to see to the nation's mood.

And though it had absolutely no relevance to the Alito nomination, some senators accused the president of an attempt at "packing" the Supreme Court. Some even referred to the courage of the Democratic Party in refusing to let President Franklin Roosevelt do likewise. It is interesting that they should bring up this particular example but probably not surprising, given their tin ear for American history.

In 1937, Roosevelt proposed legislation that called for all federal judges to retire at age 70. If they refused, the president would then have the power to appoint new judges who would serve in tandem with those over 70, enabling him to appoint six new Supreme Court justices. He was indeed opposed by prominent Democrats, including his own vice president, but the bill was doomed for sure when its biggest supporter, Majority Leader Joseph T. Robinson (D-Ark.), died during the Senate debate.

At the crux of the issue was the reason Roosevelt sought to pack the courts: a majority on the Supreme Court had ruled that many parts of his New Deal programs were unconstitutional. And even though his scheme didn't succeed, the threat convinced the Court eventually to approve of most of his agenda and change the way it interpreted the Constitution.

But no such friction over legislation exists between the Bush Administration and the Court. The relevant parallel is that while Roosevelt sought to impose an extra-constitutional age requirement on the courts to suit his purposes, it is modern-day Democrats who would act similarly in attempting to filibuster judicial nominations to suit theirs.

Another similarity is that Roosevelt exhibited the very same tendency that today's Democrats cite when they accuse Bush of trying to elevate the Executive branch of government above the other two. Many liberal lawmakers and those in their media wing have taken to calling President Bush "King George." Sadly for them, there exists no Adams or Jefferson equal to the task of taking him on. A few James Callenders, maybe.

If the loyal opposition really wants to talk about an American monarchy, they should begin by looking at the record of the king of the modern welfare state, particularly his use of Executive Orders. While George Bush has signed 196 EOs in five years for an average of around 40 per year, Franklin Roosevelt issued an incredible 3,466 in twelve years, or 288 per year. Of those 3,466 EOs, only 630 were issued during the World War II years, including one that provided for the internment of Japanese and German Americans.

In reaction to the Supreme Court's treatment of his policies and to explain his radical power-grab Roosevelt said, "During the past half-century the balance of power between the three great branches of the federal government has been tipped out of balance by the courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance."

Of course, in time Roosevelt did reshape the Court to his own liking, eventually naming an unprecedented nine justices, none of whom was threatened with a filibuster. And many of those nine succeeded in tipping the balance of power in favor of the judiciary toward liberal policy-making, far more than even Roosevelt himself could have hoped.

But the worm, as they say, is starting to turn and the days of deciding cases via shadowy penumbras and foreign law may be over. With the possibility of at least one more judicial vacancy under President Bush in the offing, the John Roberts Court very well might revert to the pre-Roosevelt approach of strict constructionism. And that would result in a new deal for an old Constitution.

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About the Author

Lisa Fabrizio is a columnist who hails from Connecticut (mailbox@lisafab.com).