Opinion: Iowans deserve to know whether Cindy Axne supports court packing

At a bare minimum, we expect our elected officials to take positions on important questions of public policy. That’s how representative government works, after all. Yet, when it comes to court packing — perhaps the most consequential matter currently before the United States Congress — U.S. Rep. Cindy Axne from West Des Moines has chosen to remain silent. Iowans deserve to know whether their representatives in Washington plan to enact a radical proposal that would destroy any semblance of an independent federal judiciary. Axne’s calculated silence on this issue is simply unacceptable.

The Judiciary Act of 2021, proposed by Democrats last month, calls for the addition of four new seats to the Supreme Court — the first statutory change to the court’s size since 1869. If enacted, the bill would allow Democrats, who control the Senate, to confirm four progressive justices, thus securing a seven-to-six majority.

This unabashed power grab, while ill-advised, is not a new idea. In the 1930s, President Franklin D. Roosevelt had famously attempted to enact similar legislation after the Supreme Court blocked key pieces of his New Deal. Specifically, Roosevelt’s plan was to neuter the Court by stuffing it with jurists sympathetic to his agenda. Although the president had until then enjoyed strong support in Congress, his own party turned swiftly against him in response to the proposal, branding it “a needless, futile and utterly dangerous abandonment of constitutional principle … without precedent or justification.” Roosevelt wisely backed down, and no one in Washington has made any serious effort to expand the high court ever since — until now.

Like Roosevelt’s botched proposal before it, Democrats’ latest court-packing scheme is nothing more than a bald attempt to seize control of the federal judiciary. There is no legitimate justification for doing so. Claims that the Court is somehow overworked or that the number of justices ought to align with the number of courts of appeals crumble under even mild scrutiny. Sen. Ed Markey, one of the bill’s cosponsors in the Senate, argues that court packing is necessary because “too many Americans view our highest court in the land as a partisan, political institution.” But his proposal would guarantee that Americans would forever view the Court as a partisan body, designed specifically to clear a path for the implementation of radical progressive policies.

Indeed, the late Justice Ruth Bader Ginsburg — a Clinton appointee — made this very point against court packing when she argued that “if anything would make the court appear partisan it would be that. … One side saying when we’re in power we’re going to enlarge the number of judges so we’ll have more people who will vote the way we want them to.” Justice Stephen Breyer — another Clinton appointee — has echoed those sentiments, explaining that “structural alteration (to the court) motivated by the perception of political influence can only feed that latter perception, further eroding that trust.” That these two champions of the progressive movement — two of the last four Democrat appointees to the Supreme Court — make the highly unusual public denouncements of court packing should have given Democrats pause.

Almost as outrageous as the Democrats’ plan itself is the fact that some still refuse to reveal whether they support it. Throughout much of his 2020 campaign, President Biden declined to comment on the question of court packing, declaring that Americans “don’t deserve” to know his position on the issue. Vice President Kamala Harris similarly refused to answer when pressed on whether she supported expanding the size of the Court. Now in office, the president and vice president continue to dodge the question, choosing instead to farm the decision out to a commission for further review.

Apparently taking her cues from the Biden-Harris administration, Axne refuses to take a stand on whether Congress should restructure the court for the sole purpose of guaranteeing a progressive majority. Asked recently on MSNBC if she supported court packing, Axne replied that she planned to “defer” to President Joe Biden’s commission. Such equivocation is not only a dereliction of the duties of her office, it is a betrayal of the voters who sent her to Washington. The people of Iowa’s 3rd Congressional District elected Axne — not a group of academics selected by the president — to represent them. They are entitled to know her position on court packing.   

Even more egregious than punting to the Biden commission is Axne’s claim that the House of Representatives has no authority over the proposed legislation. Responding to a caller on Iowa Public Radio, Axne stated that “as a member of the House, too, I’d let folks know that we have no jurisdiction over this. This falls directly to the Senate, so I’m going to let them, you know, deal with this.” That canard — which is indisputably false — earned the congresswoman “four Pinocchios” from the Washington Post. As Axne surely knows, the House of Representatives has had authority to pass legislation altering the size of the Supreme Court since the founding of the Republic. Indeed, the Judiciary Act of 2021 — the very piece of legislation on which Axne refuses to opine — is pending in the House.

That Axne would rather mislead her constituents than provide a simple answer should concern all Iowans.

If Axne is uncomfortable sharing her views on such a consequential issue, she has no business serving as a member of Congress. Perhaps Axne is no longer interested in serving. Indeed, she indicated recently that she would prefer to be a senator — or governor (she hasn’t decided yet). Regardless of whether Axne believes her current office is beneath her, until she moves on to bigger and better things, she owes her constituents an answer. The Democrats’ radical court-packing plan — opposed publicly by the likes of liberal Justices Ginsburg and Breyer — must be met with categorical opposition from anyone who cares about the independence of our judiciary. Iowans deserve an answer from their elected officials; they should demand that Axne make her position known. Those too timid to take a stand against this country-destroying move ought to step aside and make room for others willing to lead.  

Mike Davis is the founder and president of the Article III Project (A3P), an advocacy organization. Davis previously served as the chief counsel for nominations for then-Senate Judiciary Chairman Chuck Grassley (R-IA), where he served as staff leader for the confirmation of Justice Brett Kavanaugh and a record number of federal circuit judges. Davis previously clerked for Justice Neil M. Gorsuch, both on the U.S. Supreme Court and the U.S. Court of Appeals for the 10th Circuit. He grew up in Des Moines and graduated from the University of Iowa and Iowa Law.