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Old 11-23-2019, 07:39 PM
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If RBG leaves the bench and rewards the GOP with another justice, then I want court packing -- I demand it. I will accept nothing less as a Dem voter. The nation has had the court system stolen from them, and it will require unusual action to restore the balance of power.
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Old 11-23-2019, 07:59 PM
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If RBG leaves the bench and rewards the GOP with another justice, then I want court packing -- I demand it. I will accept nothing less as a Dem voter. The nation has had the court system stolen from them, and it will require unusual action to restore the balance of power.
Why, in your opinion, has the GOP not started in with court packing?
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Old 11-23-2019, 07:59 PM
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That would be the end of the Supreme Court as an independent institution. If dems pack the court, the GOP will do it when they're in power.
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Old 11-23-2019, 08:42 PM
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Why, in your opinion, has the GOP not started in with court packing?
I'm surprised that they haven't. I wouldn't rule it out.
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Old 11-23-2019, 08:42 PM
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SCOTUS is already just another political arm. This is a shame, but pretending it's still an independent, non political branch of the government is just putting our heads in the sand and handing it over to the bad guys (who already own it). Reforming it with terms or age limits would be best, but since that would probably require the near impossibility of a constitutional amendment, we should try to win the politics of the court when we have a chance.
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Old 11-23-2019, 08:43 PM
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I'm surprised that they haven't. I wouldn't rule it out.
They haven't yet because they've already won. They've owned the court for years.
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Old 11-23-2019, 08:44 PM
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That would be the end of the Supreme Court as an independent institution. If dems pack the court, the GOP will do it when they're in power.
What Mitch McConnell and the GOP have done is certainly damaging to the Court as an institution. Don't for a moment pretend that the GOP care about institutions.

The Democrats need to either a) impeach Kavanaugh and Thomas, or b) pack the Court.
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Old 11-23-2019, 08:45 PM
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SCOTUS is already just another political arm. This is a shame, but pretending it's still an independent, non political branch of the government is just putting our heads in the sand and handing it over to the bad guys (who already own it). Reforming it with terms or age limits would be best, but since that would probably require the near impossibility of a constitutional amendment, we should try to win the politics of the court when we have a chance.
Yes, this, exactly.
  #209  
Old 11-23-2019, 10:09 PM
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Reforming it with terms or age limits would be best, but since that would probably require the near impossibility of a constitutional amendment, we should try to win the politics of the court when we have a chance.
A law can be passed establishing a non-partisan commission* to send, say, two nomination possibilities to the president for each vacancy.

Would this violate anything in the US Constitution?

Not that I can see.

Could the President be punished for nominating someone else? Not in the short run. But in two decades or so, the tradition would be ingrained to the point where ignoring the commission would be politically damaging.

As for term limits, I'm not sure what problem that would solve. You would just have the same sort of political appointees we have now switching off.

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  #210  
Old 11-24-2019, 12:00 AM
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AFL/CIO is not non-partisan, for starters. Secondly, why would any president feel beholden to nominate the commissions' picks? It would only ever become damaging to ignore them if it catches on at some point, and I don't think it ever would.
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Old 11-24-2019, 10:56 AM
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If RBG leaves the bench and rewards the GOP with another justice, then I want court packing -- I demand it. I will accept nothing less as a Dem voter. The nation has had the court system stolen from them, and it will require unusual action to restore the balance of power.
LOL. You liberals have been whining about things being "stolen" ever since since Bush won the 2000 election fair and square.

Face it--you're just a bunch of sore losers.
  #212  
Old 11-24-2019, 11:27 AM
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LOL. You liberals have been whining about things being "stolen" ever since since Bush won the 2000 election fair and square.

Face it--you're just a bunch of sore losers.
Damn right I'm a sore loser. I don't like watching kleptocrats steal the country from the people.
  #213  
Old 11-24-2019, 12:29 PM
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If RBG leaves the bench and rewards the GOP with another justice, then I want court packing -- I demand it. I will accept nothing less as a Dem voter. The nation has had the court system stolen from them, and it will require unusual action to restore the balance of power.
Court packing attempt won’t end well.
  #214  
Old 11-24-2019, 12:34 PM
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Court packing attempt won’t end well.
The status quo won't end well.
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Old 11-24-2019, 12:59 PM
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You're both right, octopus and Andy. I don't think it ends well, regardless of what happens.

Cocaine Mitch's deliberate attempt to undermine Obama was a decision to hyperpoliticize the court. I will concede that Obama's appointments were also quite political - there's no denying that. I think both parties have done a fantastic job of exposing a glaring flaw in the court appointments process. If Dems somehow regain control of congress and the WH, I wouldn't necessarily be opposed to congressionally imposed reforms that aim at a fairer process, but in the end, whoever is in power has to respect the norms of the system and the Constitution. This generation of conservatives clearly don't, and that's the problem.
  #216  
Old 11-24-2019, 05:36 PM
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If RBG leaves the bench and rewards the GOP with another justice, then I want court packing -- I demand it. I will accept nothing less as a Dem voter. The nation has had the court system stolen from them, and it will require unusual action to restore the balance of power.
In the two years or so that this idea has been thrown about, not a single Democrat or liberal has satisfactorily answered the question, "If D's do this, what prevents R's from packing on a much bigger scale when it's their turn down the road?"

The only response I've ever read that came close was, (Reddit): "D's should pack the courts to such an extent that they become an unstoppable tyranny, then squash the R's so they need never worry about R's again!" Which, although perhaps technically logical, would be morally problematic.
  #217  
Old 11-24-2019, 05:43 PM
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Damn right I'm a sore loser. I don't like watching kleptocrats steal the country from the people.
Damn those thieves! I'm going to steal everything they gots, the crooks!
  #218  
Old 11-24-2019, 06:22 PM
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In the two years or so that this idea has been thrown about, not a single Democrat or liberal has satisfactorily answered the question, "If D's do this, what prevents R's from packing on a much bigger scale when it's their turn down the road?"

The only response I've ever read that came close was, (Reddit): "D's should pack the courts to such an extent that they become an unstoppable tyranny, then squash the R's so they need never worry about R's again!" Which, although perhaps technically logical, would be morally problematic.
There is no good answer to this without a Constitutional amendment. The SCOTUS is just another political branch, not the independent judiciary it ought to be. So the Democrats should treat it as such, and try to get any advantage they can get away with (as the GOP already does).

So for your first question, there is no answer to the question. The GOP already owns the SCOTUS. The Democrats lose nothing by trying to get an advantage for their side. The alternative is letting the GOP continue to own the SCOTUS with no attempt to change it.
  #219  
Old 11-24-2019, 07:48 PM
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AFL/CIO is not non-partisan, for starters. Secondly, why would any president feel beholden to nominate the commissions' picks? It would only ever become damaging to ignore them if it catches on at some point, and I don't think it ever would.
You are saying that having highly politicized courts is inevitable in the U.S. system. It isn't. In the 1980's, three justices were confirmed by unanimous votes, erven though one of them, Scalia, should not have been due to being too political. Then Souter, the model of a qualified non-political appointee, had 9 Senators against, and we were off the the partisan races.

Democratic norms, once in place, are hard to overturn. To prevent a Trump Jr. from actually succeeding in areas where DJT's threats are, so far, empty, we should try creating a few more -- such as establishing, by law, a judicial nominating commission. If the new norms don't stick, my country wasn't destined to remain free regardless.

Last edited by PhillyGuy; 11-24-2019 at 07:50 PM.
  #220  
Old 11-25-2019, 10:06 AM
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That would be the end of the Supreme Court as an independent institution. If dems pack the court, the GOP will do it when they're in power.
Quit it with this. SCOTUS is so clearly, obviously not an independent institution but rather an extension of the Republican Party that maintaining that it's this apolitical body is downright insulting and grade-A gaslighting. Seriously, the entire reason why Merrick Garland is not a SCOTUS Justice is because the GOP is quite aware that SCOTUS is part of its political arm.

So cut it out.
  #221  
Old 11-25-2019, 06:21 PM
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... the entire reason why Merrick Garland is not a SCOTUS Justice is because the GOP is quite aware that SCOTUS is part of its political arm...
The reason Merrick Garland is not a SCOTUS Justice is that the Senate is a political body with power over the confirmation process. There is a significant difference.
  #222  
Old 11-25-2019, 07:55 PM
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If anyone has politicized the Supreme Court it's the Democrats. Democratic appointees have voted in lockstep with each other and with the Democratic Party's preferred policies far more than have the Republican appointees.

Liberal Supreme Court justices vote in lockstep, not the conservative justices

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There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the “expected” ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.

That dynamic isn’t something that sprang up in the Trump era or with the court’s newest personnel. In the 2014-15 term, with Kennedy at the height of his “swing vote” power —the last full term before Justice Antonin Scalia’s death and resulting year-long vacancy — the four liberals stuck together in 55 of 66 cases, while the four conservatives (not counting Kennedy) voted as a unit in 39.
Not really surprising, since the Republicans tend to appoint judges who promise to be strict constitutionalists, while the Democrats have appointed judges based on other qualities such as picking someone for a 'Latina' perspective, and always picking people who pass litmus tests for specific Democrat policies.

When you choose strict constitutionalists, then you advocate for things that aren't constitutional as Republicans sometimes do, you shouldn't be surprised when the judges disagree with you, even if they are on the same political side. But if you choose judges based on their positions on specific issues of the day rather than adherence to the constitution, they are much more likely to vote your way and to vote together.
  #223  
Old 11-25-2019, 08:32 PM
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If anyone has politicized the Supreme Court it's the Democrats. Democratic appointees have voted in lockstep with each other and with the Democratic Party's preferred policies far more than have the Republican appointees.



Liberal Supreme Court justices vote in lockstep, not the conservative justices







Not really surprising, since the Republicans tend to appoint judges who promise to be strict constitutionalists, while the Democrats have appointed judges based on other qualities such as picking someone for a 'Latina' perspective, and always picking people who pass litmus tests for specific Democrat policies.



When you choose strict constitutionalists, then you advocate for things that aren't constitutional as Republicans sometimes do, you shouldn't be surprised when the judges disagree with you, even if they are on the same political side. But if you choose judges based on their positions on specific issues of the day rather than adherence to the constitution, they are much more likely to vote your way and to vote together.
It's not the fault of Democrats that Republicans are bad at picking judges. And it's a joke that the Republican judges are "strict constitutionalists". That's a convenient fiction, but they still just find ways to rationalize voting for their preferred outcome. We see it again and again. And we'll continue to see it as long as SCOTUS is just another political branch.
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Old 11-25-2019, 11:19 PM
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How about this for a solution. Expand SCOTUS to 18 seats, provisioned as 6 left, 6 right, and 6 moderate/independent.

Each case is then heard by a random selection of 9 that isn't determined until the case is submitted for certification.

That way no one can count on the current balance to work for or against them.
  #225  
Old 11-25-2019, 11:29 PM
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How about this for a solution. Expand SCOTUS to 18 seats, provisioned as 6 left, 6 right, and 6 moderate/independent.

Each case is then heard by a random selection of 9 that isn't determined until the case is submitted for certification.

That way no one can count on the current balance to work for or against them.
This is true, but if we agree to this we're agreeing that occasionally cases will be argued by a fully ideologically stacked court. I don't find that acceptable, I don't think anybody who thinks about it for long would find it acceptable.

I would favor packing out the court to mitigate Mitch McConnell's treachery, and then term-limit justices to something like 18 years, and make it a law that the Senate must confirm in the same year that a Justice is nominated.
  #226  
Old 11-26-2019, 11:17 PM
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SCOTUS is already just another political arm. This is a shame, but pretending it's still an independent, non political branch of the government is just putting our heads in the sand and handing it over to the bad guys (who already own it).
Like when they overturned Obamacare
Or Roe v. Wade?
The court is more conservative now but it is not a political arm.
Ruth Bader Ginsburg would agree that SCOTUS is not a partisan institution.

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Reforming it with terms or age limits would be best, but since that would probably require the near impossibility of a constitutional amendment, we should try to win the politics of the court when we have a chance.
What we need to do is start winning more elections.
  #227  
Old 11-26-2019, 11:19 PM
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What Mitch McConnell and the GOP have done is certainly damaging to the Court as an institution. Don't for a moment pretend that the GOP care about institutions.

The Democrats need to either a) impeach Kavanaugh and Thomas, or b) pack the Court.
Impeaching sitting justices for no good reason is probably going to lose you elections and even more seats on the court.

Packing the court will probably do the same.

You should look up what happened when FDR tried to pack the court.
  #228  
Old 11-26-2019, 11:20 PM
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A law can be passed establishing a non-partisan commission* to send, say, two nomination possibilities to the president for each vacancy.

Would this violate anything in the US Constitution?

Not that I can see.

Could the President be punished for nominating someone else? Not in the short run. But in two decades or so, the tradition would be ingrained to the point where ignoring the commission would be politically damaging.

As for term limits, I'm not sure what problem that would solve. You would just have the same sort of political appointees we have now switching off.

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No President would ever pick either of those names even if that was the person they would have nominated in the first place. The branches of government jealously guard their prerogatives.
  #229  
Old 11-26-2019, 11:23 PM
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Quit it with this. SCOTUS is so clearly, obviously not an independent institution but rather an extension of the Republican Party that maintaining that it's this apolitical body is downright insulting and grade-A gaslighting. Seriously, the entire reason why Merrick Garland is not a SCOTUS Justice is because the GOP is quite aware that SCOTUS is part of its political arm.

So cut it out.
The Republicans used to say something similar when the court was mostly liberal.
  #230  
Old 11-26-2019, 11:32 PM
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This is true, but if we agree to this we're agreeing that occasionally cases will be argued by a fully ideologically stacked court. I don't find that acceptable, I don't think anybody who thinks about it for long would find it acceptable.

I would favor packing out the court to mitigate Mitch McConnell's treachery, and then term-limit justices to something like 18 years, and make it a law that the Senate must confirm in the same year that a Justice is nominated.
If you get enough justices on the supreme court every president will get a nomination every year or two and each nomination will stop being such a political bloodsport. This would make the chief justice a lot more powerful but it would also make the confirmation process a lot easier.

Some people have suggested 27 justices. https://time.com/5338689/supreme-court-packing/
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Old 11-27-2019, 02:00 AM
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You should look up what happened when FDR tried to pack the court.
You're right, the Court began to uphold Roosevelt's agenda.

High school teachers like to say that Court-packing was a bridge too far for Roosevelt to cross, but the bottom line is that it was successful in cowing the SCOTUS of Roosevelt's day.

The credible threat of Court-packing could also be used to subdue Roberts et al and prevent them from doing anything stupid.
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Old 11-27-2019, 07:54 AM
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The status quo won't end well.
It could, but it would take several things to line up correctly, the most important and obvious being that RBG lives until noon of 1/20/21 and that a Democrat wins the POTUS race next year.

Next up would be for the senate to flip blue next year or in 2022 at the latest. Once those are all in place both RBG and Breyer should retire upon confirmation of their replacements. After that would be hoping for a vacancy due to a conservative justice leaving the court, presumably Thomas. Also on the list is hoping that Roberts continues to care more about the good of the country as a whole rather than the good of the Republican party.
  #233  
Old 11-27-2019, 07:54 AM
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Like when they overturned Obamacare

Or Roe v. Wade?

The court is more conservative now but it is not a political arm.

Ruth Bader Ginsburg would agree that SCOTUS is not a partisan institution.







What we need to do is start winning more elections.
The Republican courtB(or at least one of the GOP justices) may well have recognized that overturning either of those probably would be giving the Democrats their greatest election issue in decades.
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Old 11-27-2019, 11:49 AM
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The Republican courtB(or at least one of the GOP justices) may well have recognized that overturning either of those probably would be giving the Democrats their greatest election issue in decades.
So Roberts upheld Obamacare in 2012 because he thought that it would tip the election to the Democrats even more?

If he's going to follow the winds of populism then he's not a very good partisan.

No doubt the court is more conservative than it has been in a long time.

So was the court partisan when it was mostly liberal?

Just focus on winning more elections. That's how power is allocated in a democracy.
  #235  
Old 11-27-2019, 11:55 AM
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The Republican courtB(or at least one of the GOP justices) may well have recognized that overturning either of those probably would be giving the Democrats their greatest election issue in decades.
I think there are a couple things the SCOTUS has that Congress does not- they can't just do stuff because they want to- cases have to filter all the way up to them through the legal system before they can rule on them. This means that the law, both statutory and precedent has to be ambiguous enough about the case to require a decision.

Second, they publish their rationale(s) for and against any given decision.

This means that in general, the SCOTUS is more constrained in a lot of ways than the other branches of government.

So they're not able to just overturn a court decision willy-nilly; a case has to make it to them that couldn't be decided in the lower courts, which usually means there's a particularly sticky legal issue involved, and when they do make a decision, they have to (or customarily do) publish their reasoning in the decision, as well as a dissent telling why the disagreeing justices disagreed.

To me, this would be to powerfully confounding factors against the SCOTUS being a political body- it's not like the President or McConnell can demand they overturn something and actually realistically expect compliance.
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