I use the word pack is the best verb available realizing full well that it has a highly pejorative connotation. But it ought not to have such a kind of Tatian. When used in this context the second edition of Webster's unabridged dictionary, which happens to be the one I have in my study. Define the verb pack as to choose or arrange a jury committee Etc in such a way as to secure some advantage or the favor some particular side or interest. That's a president who sets out to pack the court seeks to appoint to the court people who are sympathetic to his political or philosophical principle. There's no reason in the world. Why a president should not do this one of the many marks of Genius which our constitution Bears is the fine balance struck in the establishment of the judicial branch avoiding on the one hand subservience to the supposedly more vigorous legislative and executive branches into the total institutional isolation from public opinion on the other hand. The performance of the judicial branch in United States government for a. Of nearly 200 years is shown it to be remarkably independent of the other coordinate branches of that government yet. The institution has been constructed in such a way that the public will in the person of the president the United States the one official who is elected by the entire nation have something has something to say about the membership of the court and therefore indirectly and remotely about the character of its decision. Surely we would not want it. Any other way. We want our federal courts particular the Supreme Court of the United States to be independent of popular opinion when deciding the particular controversies are cases before them the provision for tenure during good behavior in the prohibition against diminution of compensation, if proved more than adequate to secure that sort of Independence. The result is the judges are responsible to no electorate or constituency. And certainly we would not want this any other way, but the manifold provisions of the Constitution with which judges must deal are by no means crystal clear and their import and reasonable Minds May differ as to which interpretation is proper. When a vacancy occurs on the court, it is entirely appropriate that add bacon CB filled by the president responsible to a national constituency as advised by the Senate whose members are responsible to Regional constituencies. That's public opinion has some say in who she'll become judges of the Supreme Court. The answer to the first question. I posed have presidents in the past attempted to pack the court is easy. The presidents who have been sensible of the broad Powers, which they have possessed have been willing to end been willing to exercise those Powers have all but invariably tried to have some influence on the philosophy of the Court as a result of their appointments to that body. We should come as a surprise to no one. The answer to the second question, which I posed how successful have presidents been in their efforts to pack. The court is more problematical. I think history teaches us that those who have tried have been at least partially successful. But that a number of factors militate against a president having anything more than partial success, but these factors are I will try to illustrate with some examples from the history of the Court. Early very early in the courts history in September 1810 to be exact Justice William Cushing was described as a sturdy Federalist in follower of Marshall died. He was one of the associate justices his death reduce the seven-member court to 6 evenly divided between Federalists appointees and Republican appointees shortly after Cushing's death Thomas Jefferson two years out of office as president wrote his former Secretary of the Treasury Albert Gallatin in these unseemingly gleeful words. I observe old Cushing is dead. A blank then we have a chance of getting a republican majority in the Supreme Judiciary for 10 years as that Branch Brave the spirit and will of the nation the event is a fortunate one in so time does to be a godsend to me. Jefferson of course have been succeeded by James Madison who though perhaps less ardently than Jefferson. Also Champion Republican ideals Jefferson Road Madison that it will be difficult to find a character of firmness enough to preserve its independence on the same bench with Marshall. When he heard that Madison was considering Joseph story and Ezekiel Bacon been chairman of the Ways and Means Committee of the house. He admonished Madison that story in bacon or exactly The Men Who deserted us on the Embargo Act the former unquestionably Atari and both are too young. So you can see the Thomas Jefferson's early. One of our great president was not thinking of any Loft the ideas of judicial impartiality or where do we find the law? He was just figuring that this is another governmental institution and the Republicans are much better at handling governmental institutions than the Federalist. But present Madison seems to have been snake bit in his effort to fill the Cushing vacancy. He first nominated his attorney general Levi Lincoln who from the first insisted that he did not want the job and even after the Senate confirmed him. He still refused to serve. Which gives you some feeling for the general esteem in which the Supreme card was held in those days? Madison then nominated a complete Dark Horse one Alexander woollcott, not the humerus but a political hack from Connecticut. The Senate controlled by his own party rejected Walcott by the mortifying votive 24 to 9. Finally in the midst of a cabinet prices, which occupied a good deal of his time Madison nominated Joseph story for the Cushing vacancy in the Senate confirmed them as a matter of routine three days later story, of course full fill. Jefferson's worst expectations about it. He became chief justice Marshall's principal Ally in the great legal issues of the day in the Supreme Court repeatedly casting his vote in favor of National Power and against the restrictive interpretation of the Constitution urge by Jefferson and his states rights school and Joseph story served on the Supreme Court for 34 years one of the longest 10 years of record. Presidents who wished to pack the Supreme Court like murder suspect in a detective novel must have both motive and opportunity. Your Madison had both & Yeti fail. It was probably a considerably less partisan chief executive than was Jefferson. And so is motivation was perhaps not strong enough after having bought several opportunities. You finally prefer to nominate someone who would not precipitate another crisis in his relations with the Senate rather than insisting on a nominee who had the right philosophical credentials the lesson I suppose one draws from this. Is that wild for court Watchers the president's use of his appointment power to nominate people for vacancies on the Supreme Court is the most important use he makes up the executive Authority. For the president himself The Filling of Supreme Court vacancies is just one of many acts going on under the big top of his administration. Abraham Lincoln had invade against the Supreme Court's 1857 decision in the Dred Scott case during his famous debates with Stephen A Douglas when both were seeking the, Illinois Senator ship in 1858. Lincoln lost that election but his successful presidential campaign 2 years later was likewise marked by a restrain but none the less forceful attack on the decision and by implication on the courts apparent institutional bias in favor of slaveholders. within two months of his inauguration by reason of the death of one Justice and the resignation of two others Lincoln was given three vacancies to the Supreme Court to fill To fill Lincoln shows film Lincoln shows. No swaying of Ohio David Davis of Illinois Samuel Miller of Iowa all we're Republicans who had rendered some help in getting Lincoln elected president in 1860 indeed Davis have been one of Lincoln's principal managers at the Chicago Convention of the Republican party in that year. In 1863 the Congress expanded the membership of the court and Lincoln was able to enough innominate still another Justice Stephen J field of California award Democrat who have been Chief Justice of California. Then in 1864 after 28 years of service is Chief Justice Rodger b Tawny finally died at the age of 88 and Lincoln had an opportunity to choose a new chief justice. There was a prominent Republican senator from Ohio in those days by the name of Ben Wade a man who would have little formal education but was having extremely Keen mine in a rather biting sense of humor and he had some comments to make about some of the people on the public stage at that time what he had to say about chief justice Tani Wade was a radical republican whom he thoroughly disliked was this he said the thinking of Tony's advancing age of during Lincoln's Administration wall because people where he'd been in ill-health for a long time people expecting to die momentarily. He said no man prayed harder than I did that Rodger Tony without live the administration of James Buchanan, but now I'm afraid I've overdone it. At this time in the fall of 1864 the so-called Greenback legislation, which the government had used to finance. The Civil War was headed for a court test and Lincoln was very much aware of this fact. He decided to appoint his Secretary of the Treasury salmon P. Chase was in many respects the architect of the Greenback legislation saying to a confident that we wish for a chief justice will sustain what has been done in regard to emancipation and illegal tenders. We cannot ask a man what he will do and if we should and he should answer us we should despise him for it. Therefore we must take a man whose opinions are known. So he nominated salmon P Chase who is confirmed as chief justice now been way it had something to say about salmon P Chase to who although a very able man was nonetheless a sanctimonious hypocrite. Ben Wade said of Chase his politics are fine. But his theology is wrong. He thinks there's a fourth person in the trinity. In all them Lincoln had 5 appointments how successful was Lincoln at packing the court with these appointments. The answer I think is has to be he was very successful at first. The most important case to come before the court during affecting the prosecution of the war was a case called the prize cases, which I suspect is largely a footnote in constitutional law case books nowadays was a very important case so far as the union was concerned in the prosecution of the Civil War determining the extent to which the blockade which Lincoln had proclaimed could be enforced in an this all important case the three Lincoln appointees all around already on the court Swain Miller and Dave has joined with justices Wayne in Greer of the old cart to make up a 524 majority in favor of the government while chief justice Tani Justice is Nelson Katherine and Clifford off in the old Court to send it. It seems quite obvious that this case would have been decided on a different way had the same Courts at which sat in the Dred Scott and the Dred Scott case. But immediately after the war host of new issues arose which could not readily have been foreseen at the time that Lincoln made his appointments to the Supreme Court the extent to which military tribunals might display civil courts during times of War Anderson Insurrection was decided by the Supreme Court in 1866 in the landmark case of ex parte Milligan, which is certainly a great deal more than just a footnote in constitutional law casebook Sivan today. The court was unanimous in one aspect of the case that divided 5 to 4 on an equally important question of whether Congress could provide for trial by military commissions during times of insurrection, even though the present alone could not in on this point the Lincoln appointees split completely from one. Another Justice is filled and Davis Lincoln appointees. Join three justices of the old Court to hold it. Neither Congress or the president might do this while chief justice Chase and Justice is Miller and Swain all appointed by Linkin joined with one hold over Justice from the old Court to say that even Congress could not do it. Then during the war of course coming to final Victory Inn in the Reconstruction. Three new amendments. The so-called War amendments of the Constitution were adopted. These had to be construed by the Supreme Court the Lincoln appointees split Every Witch Way in important cases construing the war amendments. But the ultimate irony in Lincoln's effort to pack the court was the Court's first decision in the so-called legal tender cases a case called Hepburn against Griswold in 1870 the Court held that the legal tender Acts were unconstitutional in the opinion of the car was written by none other than salmon P Chase. Chief justice chases vote in the legal tender cases seems to me a textbook example of the proposition that one may look at a legal question differently as a judge than one did is a member of the executive branch. There's no reason to believe that chase thought he was acting unconstitutionally. When is Secretary of the Treasury, he helped draft and Shepard through Congress the Greenback legislation and it may be well it may be true that if Lincoln had actually posed the question to him before I was nominated as chief justice you would have agreed that the measures were constitutional but administrators in charge of a program, even if they're lawyers simply do not Ponder these questions in the dep the judges do and chases boat in the legal tender cases as proof of this fact. In assessing Lincoln success in his effort to pack the court. It seems that with regard to the problems. He foresaw at the time of his appointments the difficulties that the Supreme Court might put in the way of successfully Prosecuting the Civil War Lincoln was pre-eminently successful in his efforts, but with respect to the issues that arose after the war after he was dead but his appointees served long after he was dead the use of military cards the constitutionality of the Greenback legislation in the construction of the Fourteenth Amendment his appointees disagreed with one another regularly. You can't foresee at the time you're appointed as a Justice or if you're a president appointing or a Senate voting and Senator voting to confirm what the issues are going to be before the court in 15 or 20 years from now. Perhaps the most obvious Laboratory test for success and packing the card is the experience of President Franklin D Roosevelt with his judicial appointments Franklin Roosevelt had both motive and opportunity in abundance. He was elected president in 1932. His first term in office was notable for the enactment of many important social and economic regulatory measures. But it seemed during this first term that no sooner were these New Deal measures signed into law by the president when they were invalidated by the Supreme Court. That Court referred to in those days when they were nothing but male justices as the nine old men had on it justice is appointed by President Taft Wilson Harding Coolidge and Hoover outcomes were closed many significant New Deal Acts were declared unconstitutional during Franklin Roosevelt's first term. In November 1936 Roosevelt won a landslide re-election Victory is Republican opponent carried only the States of Maine and Vermont. Frustrated by his first in his first term by the lack of any vacancies on the Supreme Court Roosevelt took the bull by the horns. He disdain to wait for vacancies in in February 1937. He sought Authority from Congress to enlarge the membership of the court to as many as 15 justices first. It was broached on the idea that the court was behind and it's working the judges were too old. They couldn't keep up with things. Well, that was pretty well shot down in the testimony before the Senate Judiciary Committee. And so then it was frankly switch to the idea. We need to court and tune with the times. But popular is Franklin Roosevelt was and in the Senate which the Democrats controlled by a margin of other 18 Republican Senators out of 96 which gives you some idea about the Democratic margin in the senate in 1937. Nonetheless, the Senate after periods of Stormy debate and many interesting incidents happening finally killed the court-packing measure which gives you some idea perhaps of the institutional strength that the Supreme Court has when it when it is attacked is Roosevelt's court-packing measure obviously was an attack on the court and people rally to its defense who had very little use for the judicial doctrine that was being pronounce by a majority of the Court. So President Roosevelt when he did get vacancies and he got them a plenty in his second term was very keenly aware of the importance of Judicial philosophy. And so he within 4 years of the defeat of the court-packing legislation seven of the nine members of the Court had been appointed by Roosevelt. In the short-term change in the car was entirely predictable the old car that struck down economic and social legislation on the basis of what's called substitute due process Notions and the new cart dominated by Roosevelt appointees in the late thirties early forties, simply wiped out these doctrines and the states and the federal government were both given great latitude to regulate in the economic and Regulatory area is pretty much as they chose not subject to the constraints placed on them by the old Court. And as Chief Justice Stone took office in 1941 newspapers and magazines said that you know, everybody on the court except Stone now a stone at Wrigley been appointed by coolidge's Associates Arts is a Roosevelt a pointy. There's going to be virtual unanimity on that trip tribunal from now on and you know, it's just sounded like dullsville, but those are the way they described it. But as in so many other instances no one can foresee exactly what's down the road. And pretty soon issues other than the validity of Social and economic legislation began percolating up through the judicial coffee pot the second world war which occupy the United States from 1941 to 1945 produced numerous lawsuits about civil liberties. And as soon as those cases began coming to the Supreme Court after the war the Roosevelt appointees divided from one another just the way the Lincoln appointees had after the Civil War. They had all agreed about the validity of economic legislation, but they disagreed strongly from one another as to the validity and the way the Constitution should be construed in civil rights cases. Then in 1949 two out of two events that had nothing to do with Judicial philosophy with the Judicial philosophy directly, but had a dramatic impact on the court occur. Within a couple of months of each other two justices of the Supreme Court died Frank Murphy at the age of 59 would serve down the court 10 years and Wiley Rutledge at the age of 55 after having served on the card for 6 years. Both of these terms of service were far less than average remembers the court. Both of the ages of death are certainly untimely and the one of the reasons why the death had so much effect on the Supreme Court, was it Murphy in Rockledge were the two most liberal? If one they use that term in deciding civil rights cases and their appointees chosen by President. Harry Truman worth Justice is Tom Clark and Sherman Minton who had considerably different view than Murphy and Rockledge had about the reach of various constitutional guarantees to the individual. So here was an element of blind chance which Best rated at least in part the unanimity that had been predicted for the so-called Roosevelt Court. Reminds one of President Taft's comment after he left office, although he served as president for only 4 years. He was unable to he was able to appoint 6 justices to the Supreme Court and he said he regarded that is probably the most important thing. He had done during the presidency and said to reporters after he left office that he give told these judges if any of you die. I'll disown you. Another factor which broke up the unanimity or not unanimity, but the what might have been more Harmony among the Roosevelt car was rather sharp personal animosities which developed among several several of the members of Justice Jackson and Justice Frankfurter on the one hand and Justice black and Justice Douglas on the other hand came to have personal feelings about one. Another than word props in the best interest of Court Harmony, and I think those those personality problems also contributed something to the fragmentation of the Court a large number of whose members have been appointed by Franklin Roosevelt. That's history teachers is I think that even a strong president determined to leave his mark on the court a president such as Lincoln or Franklin Roosevelt is apt to be only partially successful neither the president nor his appointees can foresee what issues will come before the court during the tenure of the endpoint appointees. And it may be that none have thought very much about these issues. Even though I they agree is to the proper resolution of current cases. They may well disagree as to Future cases involving other questions, when is judges they study briefs and hear arguments longevity of the appointees are untimely death such as those of Justice Murphy and Justice Rutledge may also frustrated presents expectations and soulmate personal antagonism switch I've mentioned all of these factors are subsumed to a greater or lesser extent by observing that the Supreme Court is an institution far more dominated by centrifugal forces pushing towards individuality and Independence, then it is by centripetal forces pushing for hierarchical or during an Institutional Unity the well-known checks and balances provided by the framers of the Constitution have supplied the necessary centrifugal force to make the Supreme Court independent of Congress and the president The degree to which a new Justice should change his way of looking at things when he puts on the road is emphasized by the fact that Supreme Court appointments almost invariably come one at the time. Each new appointee goes alone to take his place with eight colleagues were already there unlike his freshman counterpart in the House of Representatives worth. There's been a strong political tide running at the time of a particular election. There may be as many as 40 or 50 new members who can form a block and cooperate with one another the new judicial appointee brings no cohorts. A second series of centrifugal forces is at work within the cord itself pushing each member of the court to be thoroughly independent of colleagues. The chief justice has some Authority that the associate justices do not have but this is relatively insignificant compared to the extraordinary independence of each justice has from every other Justice 10 years a shirt no matter how one votes in any given case one is independent not only of public opinion of the president and of Congress but a onesie colleagues as well and I should say so I really wouldn't want to be quoted on it. That one is largely independent even of the Chief Justice. When one puts on the Rogue one enters a world of public scrutiny and professional criticism, which sets great store by individual performance and much less store on the virtue of being a team player. James Madison in his pre presidential days when he was offering political Triax authored many parts of a very famous one called the Federalist. And in Federalist number 51, he explained what he thought was the framers approach to checks and balances and that sort of a thing. He said but the great security against a gradual concentration of the several powers in the same Department consist in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others the provision for defense must in this as in all other cases be made commensurate to the danger of attack ambition must be made to counteract ambition the interest of the man must be connected with the constitutional rights of the place. Madison of course was talking about the principles necessary to secure independence of one branch of the government from another but he might equally well I've been talkin about principals at least in the case of the Supreme Court of the United States designed to weaken and diffuse the outside Lyle teas have any new appointee and the gradually cause that appointee do identify his interest in the broadest sense. Not merely with the institution through which he is appointed but to his own particular place within the institution Here again this rather remarkable group of 50 some men who met in Philadelphia in the summer of 1787 created the separate branches of the federal government with can Summit skill. The Supreme Court is to be independent of the legislative and executive branch of the government yet by reason of vacancies occurring in that Court. It is to be subjected to indirect infusions of the popular will in terms of the president's use of his appointment power. But the institution is so structure that a brand new presidential appointee. Perhaps feeling himself strongly loyal to the president who appointed him and looking for colleagues of a similar mind on the court is immediately beset with the institutional pressures, which I just described the identifies more and more strongly with the new institution, which is become a member and learns how much store is set by his behaving independently on occasion of his colleagues and independently of all outside sources. I think it is these institutional offense as much as anything which have prevented even strong presidents from being any more than partially successful when they sought to pack the Supreme Court. Thank you very much.