“No president should be allowed to pack the courts, especially the Supreme Court. An overwhelmingly Democratic-controlled Senate stood up to the most popular Democrat ever elected president, Franklin Roosevelt, and we Democrats protected the independence of the Supreme Court by saying that even someone as popular as Franklin Roosevelt could not pack the Supreme Court.”

It seems to me that Senator Leahy has picked the wrong FDR analogy. Yes, Congress did block FDR’s plan to “pack” the Court by adding more seats. But President Bush is not doing that or proposing to do that.

In the years that followed rejection of the court-packing plan, FDR set out to deliberate change Supreme Court jurisprudence, particularly regarding the scope of federal power, through his appointments to fill naturally occurring vacancies. Between 1937 and 1941, FDR replaced all but one of the Justices. Justices Black, Frankfurter, Douglas, and Jackson were among the replacements. The Democrats did not stop him, and the Republicans did not filibuster. The change in the Court was dramatic. Federal power under the Commerce Clause was extended to the point of telling a farmer how much wheat he can grow for his own use.