I think the chance of Trump winning in 2020 has always been very unlikely, literally since the 2016 election results rolled in. However, the Republicans had a pretty solid death-grip on the...
I think the chance of Trump winning in 2020 has always been very unlikely, literally since the 2016 election results rolled in. However, the Republicans had a pretty solid death-grip on the Senate.
Until Covid. Trump's mishandling of the pandemic, along with the Repub "support him no matter what" strategy, is probably going to cost them the Senate.
I suppose, as consolation, they'll effectively maintain the Judicial branch for the next 20+ years.
If the democrats win back both the senate and the presidency, seats can be added to the SCOTUS with a simple majority vote, though I'm not sure if there's similar recourse for cleaning up Trump's...
I suppose, as consolation, they'll effectively maintain the Judicial branch for the next 20+ years.
If the democrats win back both the senate and the presidency, seats can be added to the SCOTUS with a simple majority vote, though I'm not sure if there's similar recourse for cleaning up Trump's disgusting number of lower court appointees. It sucks that it's down to that, and if we pull another 2010 it makes things pretty scary, but pretending the judicial branch is above partisan politics and letting the chips fall where they may is just a dead end strategy at this point.
If the dems do pack the SC, I think that’s basically game over for the legitimacy of the SC, though. At that point the SC will be seen as a political instrument. At least the Republicans will...
If the dems do pack the SC, I think that’s basically game over for the legitimacy of the SC, though. At that point the SC will be seen as a political instrument. At least the Republicans will surely see it that way. Why wouldn’t they? The whole point of the separation of powers is that the legislative branch is not supposed to have sway over the judicial and vice versa (except in the cases of Article II "advice and consent" and other explicit, Constitutional capacities). What I think is they should go after all the traitors in the Republican party, and impeach Kavanaugh (and whoever else Trump nominates in case they push someone else through before the election). Kavanaugh’s confirmation was already politicized as much as it possibly could be, so I don’t think it would damage the SC more than it already was to go after him.
To be fair, SC justices are human and I think it’s ok for them to have political leanings. The problem arises when the court is seen not as an independent adjudicator, but as a rubber stamp. That...
To be fair, SC justices are human and I think it’s ok for them to have political leanings. The problem arises when the court is seen not as an independent adjudicator, but as a rubber stamp. That is, the problem is not political justices per se, it’s political, activist judges that the opposition doesn’t believe are acting in good faith. Having a diverse set of opinions on the SC I see as a good and healthy situation.
I think this boils down to the (legal) arguments you can come up with vs the legal arguments you accept as valid. It's perfectly OK to only come up with arguments to further your beliefs. But if a...
I think this boils down to the (legal) arguments you can come up with vs the legal arguments you accept as valid. It's perfectly OK to only come up with arguments to further your beliefs. But if a perfectly valid argument that flies in the face of your beliefs is rejected out of hand, you're not acting according to the standards of a constitutional judge. You should still be able to accept the correct solution or the correct interpretation of the law as correct, even if you don't like it.
How to select those judges though, damn if I know.
Packing the court definitely has the potential to tarnish the legitimacy of the SC, but it is not a sure thing and the public might go either way on it. Marquette university released a poll...
Exemplary
Packing the court definitely has the potential to tarnish the legitimacy of the SC, but it is not a sure thing and the public might go either way on it. Marquette university released a poll (completed before RBG's death) that had some interesting statistics on this point. The first result I think is relevant is that the GOP is already largely on thin ice when it comes to conduct regarding the Supreme Court. A majority of the country already thinks that holding the Scalia vacancy open was the wrong thing to do (even a majority of Republicans)
Was decision not to hold hearings on nomination of Merrick Garland the right or wrong thing to do, by party identification
Party
Right thing to do
Wrong thing to do
Republican
45
54
Independent
20
78
Democrat
15
84
Coupled with this point is that the cross-tabs on increasing the number of justices is not as bad as you may think, although there is a substantial partisan split.
Party
Strongly favor
Favor
Oppose
Strongly Oppose
Republican
7
27
44
21
Independent
7
34
42
16
Democrat
15
46
32
7
There is must be an overlap (substantial, even) between people who already think the Republicans have done the wrong thing regarding the courts, and those who currently oppose increasing the number of justices. If the issue comes to the forefront, I think there is a real opportunity for Democrats to make the case that the only way to restore legitimacy and balance to the court is by adding 2 justices. This would retain a conservative 6-5 majority, but make things less lopsided, and would probably be seen as less overtly political by independents than if the Democrats try to add 4 justices and take the majority.
Just as a final point, we do have separation of powers, but we also have checks and balances which are designed to allow one branch to exert control over another. Controlling the number of justices is one such check that the legislative has over the judiciary, and this wouldn't be the first time the number was increased (we started out with 5, mind you). If the Democrats don't over reach I think it is entirely possible to make the case to the public that the number should be expanded while still maintaining the court's legitimacy.
EDIT:
Adding this because some new polls were released after I started writing this. A majority of Americans, including a majority of Republicans, say to wait until after the election to fill this seat.. 63% say the seat should be filled by the winner of the next election, 23% disagree, and the rest are unsure. That is a pretty amazing -40 approval of the course the Republicans are taking. Now, I don't expect this to stop them, but what it does mean is that the Democrats have even more grounds for claiming that they are respecting the will of the people by expanding the courts.
My 2 cents is that most people probably want a somewhat balanced court regardless, and doubly so if the imbalance is perceived as being the result of partisan politics. The SC has regularly enjoyed high popularity and perceived neutrality (even now it is something like 60%, and by comparison Congress is in the teens somewhere), and I think in general people feel it does a good job of fairly adjudicating cases. If Democrats move to maintain that balance I think they would be supported. If they overreach I think the response will be similar to what we see in response to the current GOP overreach.
If this is the path that is taken, who makes that case, and how it’s made will be very important for future history. I haven’t heard anyone senior in the Democratic party seriously talking about...
If the Democrats don't over reach I think it is entirely possible to make the case to the public that the number should be expanded while still maintaining the court's legitimacy.
If this is the path that is taken, who makes that case, and how it’s made will be very important for future history. I haven’t heard anyone senior in the Democratic party seriously talking about it (but maybe I’m just not paying attention to the right people).
There had been murmurs and rumblings among some party activists, but until now it had largely not been a focus. I fully expect that to change in the wake of RBG's death. We're already seeing the...
There had been murmurs and rumblings among some party activists, but until now it had largely not been a focus. I fully expect that to change in the wake of RBG's death. We're already seeing the start of op-eds making the case, albeit not from elected officials (examples one and two), and we even have some elected officials talking about it.
"Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table," Schumer told the Senate Democratic caucus, according to a source on the call.
And Chairman of the House Judiciary Committee, Jerry Nadler, said:
"Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start," Nadler added.
I expect this to become a central focus of Democrats in the campaign and beyond, so expect to hear more of it.
Thanks for the sources from Dem leadership pointing in this direction. US politics is nothing if not engrossing these days. It’ll be interesting to see if this is brought up in the presidential...
Thanks for the sources from Dem leadership pointing in this direction. US politics is nothing if not engrossing these days. It’ll be interesting to see if this is brought up in the presidential debates.
I'm not American so am not entirely up on the details but aren't the Republicans fairly blatantly using the SC (and lower courts) as a political instrument already? Obviously Republicans doing one...
I'm not American so am not entirely up on the details but aren't the Republicans fairly blatantly using the SC (and lower courts) as a political instrument already?
Obviously Republicans doing one thing while clutching their pearls and accusing the other side of doing the exact same thing appears to be entirely par for the course, but still.
Yes, they are. But, I’m arguing that the Democrats should not try to play the game the same way as the Republicans. They should try to bend the game back into something worth playing.
Yes, they are. But, I’m arguing that the Democrats should not try to play the game the same way as the Republicans. They should try to bend the game back into something worth playing.
What are their options? The Republican long game is to own the courts and make Congress so gridlocked that no matter who the president is, the tax free rivers run clean and true for their donors....
They should try to bend the game back into something worth playing.
What are their options? The Republican long game is to own the courts and make Congress so gridlocked that no matter who the president is, the tax free rivers run clean and true for their donors. Why on Earth would they allow the system to change now?
If the Dems can enact reforms that prevent them during a window in which they control the executive and legislature, the Republicans’ only recourse would be to try to fight it in the courts. And...
If the Dems can enact reforms that prevent them during a window in which they control the executive and legislature, the Republicans’ only recourse would be to try to fight it in the courts. And while the current SC is not great, I’m not sure if they’ll actually sell out the country if the needed reforms are implemented.
While I agree that an independent judiciary is necessary for a healthy democracy, the reality of the situation is that the SCOTUS was very poorly set up to fill this role in the constitution, and...
While I agree that an independent judiciary is necessary for a healthy democracy, the reality of the situation is that the SCOTUS was very poorly set up to fill this role in the constitution, and any past experiences with an independent judiciary have practically run on the honor system, which has long since broken down. The supreme court hasn't been a legitimate independent judiciary since at least their 5-4 decision to appoint George W. Bush to the presidency in 2000, let alone with all of the fuckery that's gone on since, and that rot is in large part to blame for the decay of our democracy. We can either pretend that the court remains sacrosanct or roll the political dice to try and fix it.
I think the chance of Trump winning in 2020 has always been very unlikely, literally since the 2016 election results rolled in. However, the Republicans had a pretty solid death-grip on the Senate.
Until Covid. Trump's mishandling of the pandemic, along with the Repub "support him no matter what" strategy, is probably going to cost them the Senate.
I suppose, as consolation, they'll effectively maintain the Judicial branch for the next 20+ years.
If the democrats win back both the senate and the presidency, seats can be added to the SCOTUS with a simple majority vote, though I'm not sure if there's similar recourse for cleaning up Trump's disgusting number of lower court appointees. It sucks that it's down to that, and if we pull another 2010 it makes things pretty scary, but pretending the judicial branch is above partisan politics and letting the chips fall where they may is just a dead end strategy at this point.
If the dems do pack the SC, I think that’s basically game over for the legitimacy of the SC, though. At that point the SC will be seen as a political instrument. At least the Republicans will surely see it that way. Why wouldn’t they? The whole point of the separation of powers is that the legislative branch is not supposed to have sway over the judicial and vice versa (except in the cases of Article II "advice and consent" and other explicit, Constitutional capacities). What I think is they should go after all the traitors in the Republican party, and impeach Kavanaugh (and whoever else Trump nominates in case they push someone else through before the election). Kavanaugh’s confirmation was already politicized as much as it possibly could be, so I don’t think it would damage the SC more than it already was to go after him.
To be fair, SC justices are human and I think it’s ok for them to have political leanings. The problem arises when the court is seen not as an independent adjudicator, but as a rubber stamp. That is, the problem is not political justices per se, it’s political, activist judges that the opposition doesn’t believe are acting in good faith. Having a diverse set of opinions on the SC I see as a good and healthy situation.
I think this boils down to the (legal) arguments you can come up with vs the legal arguments you accept as valid. It's perfectly OK to only come up with arguments to further your beliefs. But if a perfectly valid argument that flies in the face of your beliefs is rejected out of hand, you're not acting according to the standards of a constitutional judge. You should still be able to accept the correct solution or the correct interpretation of the law as correct, even if you don't like it.
How to select those judges though, damn if I know.
Packing the court definitely has the potential to tarnish the legitimacy of the SC, but it is not a sure thing and the public might go either way on it. Marquette university released a poll (completed before RBG's death) that had some interesting statistics on this point. The first result I think is relevant is that the GOP is already largely on thin ice when it comes to conduct regarding the Supreme Court. A majority of the country already thinks that holding the Scalia vacancy open was the wrong thing to do (even a majority of Republicans)
Was decision not to hold hearings on nomination of Merrick Garland the right or wrong thing to do, by party identification
Coupled with this point is that the cross-tabs on increasing the number of justices is not as bad as you may think, although there is a substantial partisan split.
There is must be an overlap (substantial, even) between people who already think the Republicans have done the wrong thing regarding the courts, and those who currently oppose increasing the number of justices. If the issue comes to the forefront, I think there is a real opportunity for Democrats to make the case that the only way to restore legitimacy and balance to the court is by adding 2 justices. This would retain a conservative 6-5 majority, but make things less lopsided, and would probably be seen as less overtly political by independents than if the Democrats try to add 4 justices and take the majority.
Just as a final point, we do have separation of powers, but we also have checks and balances which are designed to allow one branch to exert control over another. Controlling the number of justices is one such check that the legislative has over the judiciary, and this wouldn't be the first time the number was increased (we started out with 5, mind you). If the Democrats don't over reach I think it is entirely possible to make the case to the public that the number should be expanded while still maintaining the court's legitimacy.
EDIT:
Adding this because some new polls were released after I started writing this. A majority of Americans, including a majority of Republicans, say to wait until after the election to fill this seat.. 63% say the seat should be filled by the winner of the next election, 23% disagree, and the rest are unsure. That is a pretty amazing -40 approval of the course the Republicans are taking. Now, I don't expect this to stop them, but what it does mean is that the Democrats have even more grounds for claiming that they are respecting the will of the people by expanding the courts.
My 2 cents is that most people probably want a somewhat balanced court regardless, and doubly so if the imbalance is perceived as being the result of partisan politics. The SC has regularly enjoyed high popularity and perceived neutrality (even now it is something like 60%, and by comparison Congress is in the teens somewhere), and I think in general people feel it does a good job of fairly adjudicating cases. If Democrats move to maintain that balance I think they would be supported. If they overreach I think the response will be similar to what we see in response to the current GOP overreach.
If this is the path that is taken, who makes that case, and how it’s made will be very important for future history. I haven’t heard anyone senior in the Democratic party seriously talking about it (but maybe I’m just not paying attention to the right people).
There had been murmurs and rumblings among some party activists, but until now it had largely not been a focus. I fully expect that to change in the wake of RBG's death. We're already seeing the start of op-eds making the case, albeit not from elected officials (examples one and two), and we even have some elected officials talking about it.
Senator Ed Markey has been more explicit and said that Dems should pack the court if this nominee goes through.
Rep. Joe Kennedy III has said similarly.
Minority leader Chuck Schumer has said:
And Chairman of the House Judiciary Committee, Jerry Nadler, said:
I expect this to become a central focus of Democrats in the campaign and beyond, so expect to hear more of it.
Thanks for the sources from Dem leadership pointing in this direction. US politics is nothing if not engrossing these days. It’ll be interesting to see if this is brought up in the presidential debates.
I'm not American so am not entirely up on the details but aren't the Republicans fairly blatantly using the SC (and lower courts) as a political instrument already?
Obviously Republicans doing one thing while clutching their pearls and accusing the other side of doing the exact same thing appears to be entirely par for the course, but still.
Yes, they are. But, I’m arguing that the Democrats should not try to play the game the same way as the Republicans. They should try to bend the game back into something worth playing.
What are their options? The Republican long game is to own the courts and make Congress so gridlocked that no matter who the president is, the tax free rivers run clean and true for their donors. Why on Earth would they allow the system to change now?
If the Dems can enact reforms that prevent them during a window in which they control the executive and legislature, the Republicans’ only recourse would be to try to fight it in the courts. And while the current SC is not great, I’m not sure if they’ll actually sell out the country if the needed reforms are implemented.
While I agree that an independent judiciary is necessary for a healthy democracy, the reality of the situation is that the SCOTUS was very poorly set up to fill this role in the constitution, and any past experiences with an independent judiciary have practically run on the honor system, which has long since broken down. The supreme court hasn't been a legitimate independent judiciary since at least their 5-4 decision to appoint George W. Bush to the presidency in 2000, let alone with all of the fuckery that's gone on since, and that rot is in large part to blame for the decay of our democracy. We can either pretend that the court remains sacrosanct or roll the political dice to try and fix it.