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-   -   omnibus Supreme Court-packing thread (https://boards.straightdope.com/sdmb/showthread.php?t=873353)

Velocity 04-01-2019 01:10 PM

omnibus Supreme Court-packing thread
 
Court-packing of SCOTUS is an idea that's gaining more and more traction among Democrats, including Kamala, Beto, Ocasio-Cortez and Warren (links: here and here and here and here)

There are several ways in which this would be disastrous. 1) Republicans will just do the same thing on an even bigger scale when they get the chance years down the road, 2) it ruins the legitimacy of SCOTUS as the SCOTUS becomes perceived as nothing but a political arm, 3) it's simply flat-out partisan. Sure, McConnell blocking Garland was partisan, but that was wrong, too.

iiandyiiii 04-01-2019 01:15 PM

1) Obviously.
2) This has already occurred.
3) Obviously.

Until something major changes -- like amending the Constitution to make 9 or 18 year terms for SCOTUS, or a minimum age of ~70 or so -- SCOTUS is an overtly political institution, and will be treated as such. As long as this is the case, the Democrats should try to make sure they have just as much partisan influence on this political institution as the Republicans, IMO. And this may help push the country to the point that we'll actually come together and amend the Constitution.

The alternative may be that someone starts shooting SCOTUS justices, since that could gain one side a significant advantage. Then we'd be in big, big trouble.

HurricaneDitka 04-01-2019 01:20 PM

All their campaign rhetoric won't amount to anything if the Dems don't:

1) retake the Senate

2) exercise the nuclear option to destroy the legislative filibuster

Both of those things seem like rather dubious prospects, at least in 2020-2022.

Airbeck 04-01-2019 01:33 PM

About as dubious as building a wall across the entire southern border? More? Less?

enalzi 04-01-2019 01:39 PM

Quote:

Originally Posted by Velocity (Post 21568390)
Court-packing of SCOTUS is an idea that's gaining more and more traction among Democrats, including Kamala, Beto, Ocasio-Cortez and Warren (links: here and here and here and here)

Okay, I had to dig through all those cites to find some actual quotes. It doesn't look like anyone is actually campaigning on this issue. They're being asked about it and giving a generic answer that basically says "we'll look into it."

Velocity 04-01-2019 01:42 PM

Quote:

Originally Posted by enalzi (Post 21568459)
Okay, I had to dig through all those cites to find some actual quotes. It doesn't look like anyone is actually campaigning on this issue. They're being asked about it and giving a generic answer that basically says "we'll look into it."

But the very fact that they're giving it consideration is significantly different than in the past. In, say, 2000, if Gore had been asked about court-packing, he'd probably have said "uh....what? No."

iiandyiiii 04-01-2019 01:45 PM

Newsflash -- politicians are treating a political institution in a political fashion.

Dog bites man.

Velocity 04-01-2019 02:25 PM

Quote:

Originally Posted by iiandyiiii (Post 21568474)
Newsflash -- politicians are treating a political institution in a political fashion.

Dog bites man.

But it shouldn't be. The whole point of the 3 branches of government is that the first two (presidency and Congress) are for politics but the Supreme Court+judiciary is supposed to serve as referees.


Your comment is akin to, "Sports team tries to bribe referees, dog bites man."

Whack-a-Mole 04-01-2019 02:27 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568400)
2) exercise the nuclear option to destroy the legislative filibuster

Already likely done:

Quote:

McConnell sets stage for 'nuclear option' to change rules on judges

Senate Majority Leader Mitch McConnell (R-Ky.) filed a procedural motion Thursday to set up a rules change in the Senate next week that will speed up votes to confirm President Trump’s nominees to federal district courts and sub-Cabinet-level executive branch positions.

SOURCE: https://thehill.com/homenews/senate/...ules-on-judges
Also, I seem to recall McConnell rescinded some procedural hurdles to get Gorsuch through.

Why in the world would Dems want to play nice now?

iiandyiiii 04-01-2019 02:30 PM

Quote:

Originally Posted by Velocity (Post 21568573)
But it shouldn't be. The whole point of the 3 branches of government is that the first two (presidency and Congress) are for politics but the Supreme Court+judiciary is supposed to serve as referees.

Yes, but this has spectacularly failed. The SCOTUS is a political institution, whether we like it or not. I hope that this could be changed, but it would require a Constitutional amendment. Asking the Democrats to pretend that it's not a political institution just helps the Republicans, and I'm not particularly eager to do that.

HurricaneDitka 04-01-2019 02:34 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568579)
Already likely done:



Also, I seem to recall McConnell rescinded some procedural hurdles to get Gorsuch through.

Why in the world would Dems want to play nice now?

The adjective "legislative" was included for a reason. Do I need to explain the significance to you?

Whack-a-Mole 04-01-2019 02:44 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568598)
The adjective "legislative" was included for a reason. Do I need to explain the significance to you?

Yes.

HurricaneDitka 04-01-2019 02:54 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568626)
Yes.

I started to write out a lengthy post, but I think this bit of a Wikipedia article is sufficient:

Quote:

In November 2013, Senate Democrats led by Harry Reid used the nuclear option to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments, but not for the Supreme Court.[1] In April 2017, Senate Republicans led by Mitch McConnell extended the nuclear option to Supreme Court nominations in order to end debate on the nomination of Neil Gorsuch.[2][3][4]

As of March 2019, a three-fifths majority vote is still required to end debates on legislation.
from https://en.wikipedia.org/wiki/Nuclear_option

ETA: I'll note that increasing the size of the Supreme Court would require legislation

Whack-a-Mole 04-01-2019 02:57 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568647)
I started to write out a lengthy post, but I think this bit of a Wikipedia article is sufficient:

from https://en.wikipedia.org/wiki/Nuclear_option

ETA: I'll note that increasing the size of the Supreme Court would require legislation

What about all that makes what I wrote wrong?

And where does it say that court packing requires legislation? ISTM it only requires senate approval of a nominee.

HurricaneDitka 04-01-2019 03:05 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568657)
What about all that makes what I wrote wrong? ...

Not wrong, necessarily, just irrelevant to my point about the legislative filibuster.

Quote:

Originally Posted by Whack-a-Mole (Post 21568657)
And where does it say that court packing requires legislation? ISTM it only requires senate approval of a nominee.

"court packing" means expanding the size of the Court. The Court's size was set (at 9) by the Judiciary Act of 1869. If someone wanted to add a 10th or 11th (or additional) justices to the Supreme Court, they'll have to change the law with a piece of legislation. President Trump and the Senate Republicans can't just nominate ACB and confirm her and suddenly have a SCOTUS with 10 justices.

Chronos 04-01-2019 03:06 PM

There is a law setting the size of the Supreme Court at nine. It's only a law, not part of the Constitution, and so it could be changed by a mere act of Congress (as opposed to an amendment), but it would still need that act of Congress. Which would require nuclear retaliation in the form of eliminating the Republican filibuster. But that's pretty much a given, since the Democratic filibuster is already dead: Democrats would be insane, upon taking back the Senate, to leave the rules at "only Republicans are allowed to filibuster".

Airbeck 04-01-2019 03:11 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568675)
Not wrong, necessarily, just irrelevant to my point about the legislative filibuster.

McConnell and the GOP have not done away with the legislative filibuster. Do you think the reason for this is:

a) it isn't politically advantageous for their party
b) they care about traditions and norms in the Senate

Second question, if it was politically advantageous for them to nuke it don't you think it would already be gone?

HurricaneDitka 04-01-2019 03:18 PM

Quote:

Originally Posted by Chronos (Post 21568678)
There is a law setting the size of the Supreme Court at nine. It's only a law, not part of the Constitution, and so it could be changed by a mere act of Congress (as opposed to an amendment), but it would still need that act of Congress. Which would require nuclear retaliation in the form of eliminating the Republican filibuster. But that's pretty much a given, since the Democratic filibuster is already dead: Democrats would be insane, upon taking back the Senate, to leave the rules at "only Republicans are allowed to filibuster".

I think you're confused about which filibuster is dead. The filibuster for nominees (executive and judicial branches) is dead, but the legislative filibuster is still very much intact. There's not really any such thing as the "Democratic filibuster" or the "Republican filibuster"

ETA: the rules don't say "only Republicans are allowed to filibuster".

HurricaneDitka 04-01-2019 03:21 PM

Quote:

Originally Posted by Airbeck (Post 21568689)
McConnell and the GOP have not done away with the legislative filibuster. Do you think the reason for this is:

a) it isn't politically advantageous for their party
b) they care about traditions and norms in the Senate

Second question, if it was politically advantageous for them to nuke it don't you think it would already be gone?

It would undoubtedly have been advantageous, at least in the short term, to have nuked it in 2017. The Senate's legislative filibuster was the main obstacle to the Republicans enacting their agenda in 2017-2018.

Airbeck 04-01-2019 03:27 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568723)
It would undoubtedly have been advantageous, at least in the short term, to have nuked it in 2017. The Senate's legislative filibuster was the main obstacle to the Republicans enacting their agenda in 2017-2018.

And in the long term...?

What sort of calculus do you think McConnell used when deciding not to do that against the wishes of Trump who kept tweeting about getting rid of it to push his agenda through.

It's ok, you can answer. Everyone already knows why, so you can say it.

RTFirefly 04-01-2019 03:38 PM

Quote:

Originally Posted by Velocity (Post 21568573)
But it shouldn't be.

It's too fucking late.

The Dems can continue to treat things like the filibuster and monkeying with the court like they're playing bocce while the GOP is throwing hand grenades, or they can level the playing field with a Sherman tank. If they choose option 1, they'll wind up controlling nothing despite having won the popular vote everywhere besides the Deep South, Great Plains, and the northern Rockies.

What's going on is no joke, son. I'm all for the Dems playing fair if there's some way to ensure that the GOP does the same. But if the Dems let the GOP walk all over them, the losers are the American people, who will have an insultingly low minimum wage, no overtime pay, and no health care, and a future to look forward to where the planet turns into a hellscape.

HurricaneDitka 04-01-2019 03:41 PM

Look out everyone! The sky is falling!

HurricaneDitka 04-01-2019 03:42 PM

Quote:

Originally Posted by Airbeck (Post 21568741)
And in the long term...?

What sort of calculus do you think McConnell used when deciding not to do that against the wishes of Trump who kept tweeting about getting rid of it to push his agenda through.

It's ok, you can answer. Everyone already knows why, so you can say it.

I suspect his motivation was some combination of your a) and b). I suspect he's looking at not just the short-term benefit but also the long-term consequences. Do you think the Dems calling for court-packing now are doing that?

Sam Stone 04-01-2019 03:43 PM

Quote:

Originally Posted by Airbeck (Post 21568439)
About as dubious as building a wall across the entire southern border? More? Less?

Given that the wall is not being built, does it matter if it's just as dubious? Pointing to a failed project as a comparison doesn't seem like a wise choice.

HurricaneDitka 04-01-2019 03:44 PM

Whack-a-Mole, did we clear up your confusion about what the legislative filibuster is and why it would be relevant to any court-packing scheme?

RTFirefly 04-01-2019 03:45 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568723)
It would undoubtedly have been advantageous, at least in the short term, to have nuked it in 2017. The Senate's legislative filibuster was the main obstacle to the Republicans enacting their agenda in 2017-2018.

They didn't really care about much besides the tax cut and killing Obamacare. They used reconciliation on both, so the tax cut passed, but they couldn't even get a majority to kill Obamacare. It made more sense to Mitch to keep it because the Dems might not have the guts to kill it, and if so, he'd win a massive series of victories by doing essentially nothing.

That SOB is an SOB, but he knows what he's doing. The Dems need a Mitch of their own; instead, they've got Schumer.

Whack-a-Mole 04-01-2019 03:47 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568675)
"court packing" means expanding the size of the Court. The Court's size was set (at 9) by the Judiciary Act of 1869. If someone wanted to add a 10th or 11th (or additional) justices to the Supreme Court, they'll have to change the law with a piece of legislation. President Trump and the Senate Republicans can't just nominate ACB and confirm her and suddenly have a SCOTUS with 10 justices.

Since when can one arm of the government limit another arm of the government?

The law exists but can congress make the judiciary one or none people? The constitution does not give them this power.

ISTM the senate is the gate keeper and can allow/disallow whoever they want per the constitution. The constitution certainly does not allow congress to limit the court otherwise.

RTFirefly 04-01-2019 03:47 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568783)
Look out everyone! The sky is falling!

Unfortunately, the scientific backing for that assertion is pretty much overwhelming at this point.

Whack-a-Mole 04-01-2019 03:50 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568791)
Whack-a-Mole, did we clear up your confusion about what the legislative filibuster is and why it would be relevant to any court-packing scheme?

I was not confused. You were unclear.

HurricaneDitka 04-01-2019 03:55 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568803)
I was not confused. You were unclear.

When? When I used the term "legislative filibuster"? Or when you said:

Quote:

Originally Posted by Whack-a-Mole (Post 21568657)
... And where does it say that court packing requires legislation? ISTM it only requires senate approval of a nominee.


HurricaneDitka 04-01-2019 03:56 PM

Quote:

Originally Posted by RTFirefly (Post 21568799)
Unfortunately, the scientific backing for that assertion is pretty much overwhelming at this point.

How would you rate the scientific backing for "a future to look forward to where the planet turns into a hellscape"?

Chronos 04-01-2019 03:57 PM

The Republicans have, in fact, killed the legislative filibuster. Reconciliation can only be used to pass bills that decrease the deficit, and they used it to pass the tax cuts which increased the deficit. If the party in power just plain ignores the rules, then the rules effectively don't exist.

Whack-a-Mole 04-01-2019 04:00 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568816)
When? When I used the term "legislative filibuster"? Or when you said:

The senate refused to consider the nomination of Garland.

The Senate can do as it wills in this regard. Who can say otherwise? The law mandated nine justices but they let it continue with eight for over a year.

If the Senate can stall on eight justices why not seven or fewer? Who can stop them from making it 10 or more?

Can congress make the supreme court one or no justices? If they can set it at nine why not one or none?

I am not saying I like this arrangement but it seems to be where we are.

Sam Stone 04-01-2019 04:06 PM

Both sides need to consider the long-term effects of their actions.

Question: What happens if you end the legislative filibuster and pack the Supreme Court?

Simple Partisan Answer: Why, everything stays the same, except now we have control of the court and can pass any agenda we want! Win!

Complex Answer: You get your way for a year or two, at the cost of pissing off half the country and making yourselves look like you're engaging in a major power grab. So you lose the next election bigly, and your enemies get to use all the tools you ruined yourselves over.

A good example is Obamacare. Institutionally, there had always been a sort of unwritten rule that seriously major legislation that would make wholesale changes to the economy or the government must be passed in a bipartisan fashion. That gives it the legitimacy necessary to withstand the shrieking that will no doubt come from special interests and partisans. The Democrats did away with that and passed a major change to the country on a strict party-line vote. The result has been eight years of fighting, court cases, and ultimately the possible destruction of the entire law.

The notion that when your side gets 'control' it's time to clean house and use every trick in the book to pass everything you want, whether done by Republicans or Democrats, is a recipe for social breakdown, chaotic governance, and the transformation of a country from one with high trust in its institutions to a low-trust society, and all the damage that brings.

Specific to court-packing, that looks like such a blatant power grab that I predict that any governing party that tries to do it will face such a public backlash that they will get routed in the next election after.

Also, if you are going to pack the court you need a justification for doing so other than, "They keep using the constitution against our progressive ideas." FDR tried to claim that the court was overworked, but that was shot down by the court itself. The next idea was to force judges over 70 to retire, which would have disproportionally affected Republican judges and given FDR the ability to make multiple appointments in a short period of time. Unfortunately for the Democrats, if they tried to age-out the justices at 70, they would lose Ginsberg and Breyer, and the Republicans would only lose Thomas and I guess Alito if it's a couple of years from now. But 70 today isn't like it was in the 30's, and I doubt you could ever make a forced retirement at 70 stick. And if you did, the only justices that will hit 70 in the next term are Sotomayor and Roberts.

As a reminder, FDR's court-packing scheme did not succeed. In today's era, such an attempt would trigger massive civil unrest on the right, who would rightly see it as a massive power grab.

Velocity 04-01-2019 04:12 PM

Quote:

Originally Posted by Sam Stone (Post 21568837)
A good example is Obamacare. Institutionally, there had always been a sort of unwritten rule that seriously major legislation that would make wholesale changes to the economy or the government must be passed in a bipartisan fashion. That gives it the legitimacy necessary to withstand the shrieking that will no doubt come from special interests and partisans. The Democrats did away with that and passed a major change to the country on a strict party-line vote.

In fairness to the Democrats, there was just about no major healthcare reform that they could enact that would have passed with any significant amount of Republican support.


But what's being proposed with SCOTUS court-packing is very different. It's being proposed that the judiciary - which ought to be an impartial referee that holds the other, partisan branches of government in check - jump into the game and take one team's side. Like buying off the referee in a Super Bowl.

HurricaneDitka 04-01-2019 04:23 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568798)
Since when can one arm of the government limit another arm of the government?

At least since 1869. When FDR was considering packing the court, he wasn't going to just nominate some additional justices and have the Senate approve them. His proposal took the form of legislation: the Judicial Procedures Reform Bill of 1937

Whack-a-Mole 04-01-2019 04:26 PM

Quote:

Originally Posted by Velocity (Post 21568851)
In fairness to the Democrats, there was just about no major healthcare reform that they could enact that would have passed with any significant amount of Republican support.


But what's being proposed with SCOTUS court-packing is very different. It's being proposed that the judiciary - which ought to be an impartial referee that holds the other, partisan branches of government in check - jump into the game and take one team's side. Like buying off the referee in a Super Bowl.

The Supreme Court has become completely politicized. There is a reason McConnell didn't let Garland get a vote.

Republicans made it this way so democrats have a reason to push back.

Whack-a-Mole 04-01-2019 04:29 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568879)
At least since 1869. When FDR was considering packing the court, he wasn't going to just nominate some additional justices and have the Senate approve them. His proposal took the form of legislation: the Judicial Procedures Reform Bill of 1937

Sure.

You have not shown where it is allowed for one branch of government to limit another branch of government.

Nor have you shown why, when making a government with checks and balances, that this would even be a good idea.

Sam Stone 04-01-2019 04:29 PM

Velocity: I agree with both those points, but would add that the fact that the Democrats couldn't get ANY support from the representatives of approximately half the country was a good reason to not do it, not a justification for doing it.

I think Obamacare was one of the factors that has led to increasing polarization, and that in turn helped elect Donald Trump. Unintended consequences, and all that. So perhaps the choice back then was, "No sweeping health care reform", vs "Sweeping health care reform, coupled with an energizing of a populist right and the election of Donald Trump."

Was Obamacare worth Donald Trump being President and the Republicans holding a large majority in the Supreme Court? Because that may have been the price. It was unknowable at the time, except for the understanding that passing sweeping legislation against the wishes of half the country will likely lead to some bad outcomes. If Trump gets re-elected, he will get to appoint at least one more Supreme Court Justice, and more likely two or three. Breyer and Ginsberg are not spring chickens. That will give the conservative side of the court a comfortable majority for a generation, which is now leading to talk of further breakdowns of norms through court-packing schemes. That may be the real legacy of Obama, but it didn't have to be.

And in case you think I'm saying this as a partisan, I think the same thing applies to the Republicans. One of the reasons I oppose Trump and his methods is that I think they are directly responsible for further radicalizing the left, which may lead to an even worse President next time. Rinse and Repeat. Norms are there for a reason. Break them, and expect unintended consequences.

Thing Fish 04-01-2019 04:30 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568827)
The senate refused to consider the nomination of Garland.

The Senate can do as it wills in this regard. Who can say otherwise? The law mandated nine justices but they let it continue with eight for over a year.

If the Senate can stall on eight justices why not seven or fewer? Who can stop them from making it 10 or more?

Can congress make the supreme court one or no justices? If they can set it at nine why not one or none?

I am not saying I like this arrangement but it seems to be where we are.

Refusing to fill a particular vacancy at a particular time isn't the same things as changing the size of the Court. The law sets the size of the Court currently at 9. But if the Senate won't confirm anyone to fill a vacancy of course it will be smaller until the political gridlock resolves. Theoretically they could all die off and there would be no Justices at all. But the Senate can't add a 10th Justice (unless both Houses pass a law allowing them to do so). They can't remove Justices (other than through impeachment), either; if they were to pass a law reducing the size of the Court to five, none of the current Justices would have to leave. But the next four to die or resign wouldn't be replaced.

HurricaneDitka 04-01-2019 04:31 PM

Quote:

Originally Posted by Chronos (Post 21568820)
The Republicans have, in fact, killed the legislative filibuster. Reconciliation can only be used to pass bills that decrease the deficit, and they used it to pass the tax cuts which increased the deficit. If the party in power just plain ignores the rules, then the rules effectively don't exist.

That's not right. The legislative filibuster is alive and well. There's been an exception to that, reconciliation, that's been in place for years. That exception is still in place, as is the general requirement to have 60 votes for cloture for almost all legislation.

Thing Fish 04-01-2019 04:34 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568890)
Sure.

You have not shown where it is allowed for one branch of government to limit another branch of government.

Nor have you shown why, when making a government with checks and balances, that this would even be a good idea.

Well, how do YOU think it works? Do you think the Constitution just sets the number of Justices at 9 eternally? Then how do you explain the numerous times in history that Congress has changed the size of the Court? HD, Chronos, and others are correct in explaining how it actually works; proving that it is a "good idea" isn't their responsibility.

HurricaneDitka 04-01-2019 04:35 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568890)
Sure.

You have not shown where it is allowed for one branch of government to limit another branch of government.

Nor have you shown why, when making a government with checks and balances, that this would even be a good idea.

I guess I don't understand what you mean by "limit". A bunch of what most people would recognize as "checks and balances" are indeed one branch "limiting" another branch of government. At least, that's the word I'd use to describe it when SCOTUS declares one of Congress' laws unconstitutional, or Congress impeaches the President, or refuses to fund some executive branch department, or the President vetoes one of Congress' proposals. How are those NOT one branch of government limiting another branch of government?

Whack-a-Mole 04-01-2019 04:35 PM

Quote:

Originally Posted by Thing Fish (Post 21568895)
Refusing to fill a particular vacancy at a particular time isn't the same things as changing the size of the Court. The law sets the size of the Court currently at 9. But if the Senate won't confirm anyone to fill a vacancy of course it will be smaller until the political gridlock resolves. Theoretically they could all die off and there would be no Justices at all. But the Senate can't add a 10th Justice (unless both Houses pass a law allowing them to do so). They can't remove Justices (other than through impeachment), either; if they were to pass a law reducing the size of the Court to five, none of the current Justices would have to leave. But the next four to die or resign wouldn't be replaced.

Why can congress set the number of justices?

Seems a constitutional matter to me.

If they can set it at nine they can set it at one or none. If none they can abolish a branch of government. Which would seem crazy but if they can set any number then zero is a number.

My point being, congress does not have the right to limit another branch of government. The executive through the senate is the only prescribed means of getting people on the court per the constitution (which trumps congressional laws).

Whack-a-Mole 04-01-2019 04:37 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568902)
I guess I don't understand what you mean by "limit". A bunch of what most people would recognize as "checks and balances" are indeed one branch "limiting" another branch of government. At least, that's the word I'd use to describe it when SCOTUS declares one of Congress' laws unconstitutional, or Congress impeaches the President, or refuses to fund some executive branch department, or the President vetoes one of Congress' proposals. How are those NOT one branch of government limiting another branch of government?

"Limits" would be new laws or congress impeaching a sitting justice. All as set forth in the constitution.

HurricaneDitka 04-01-2019 04:42 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568903)
Why can congress set the number of justices?

Seems a constitutional matter to me.

If they can set it at nine they can set it at one or none. If none they can abolish a branch of government. Which would seem crazy but if they can set any number then zero is a number.

My point being, congress does not have the right to limit another branch of government. The executive through the senate is the only prescribed means of getting people on the court per the constitution (which trumps congressional laws).

Is your current operating theory that it would be perfectly lawful and kosher for President Trump to nominate Amy Coney Barrett to a 10th seat on the Supreme Court, Mitch McConnell and his Senate Republican pals could schedule the hearing, confirm ACB, and just like that the Court has been expanded to 10 justices?

You think that would be legal?

Whack-a-Mole 04-01-2019 04:47 PM

Quote:

Originally Posted by HurricaneDitka (Post 21568917)
Is your current operating theory that it would be perfectly lawful and kosher for President Trump to nominate Amy Coney Barrett to a 10th seat on the Supreme Court, Mitch McConnell and his Senate Republican pals could schedule the hearing, confirm ACB, and just like that the Court has been expanded to 10 justices?

You think that would be legal?

Yes.

Sam Stone 04-01-2019 04:50 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568903)
Why can congress set the number of justices?

Seems a constitutional matter to me.

If they can set it at nine they can set it at one or none. If none they can abolish a branch of government. Which would seem crazy but if they can set any number then zero is a number.

My point being, congress does not have the right to limit another branch of government.

This is just wrong at every level. The American government is set up so that all three branches can limit each other. The House has the power of the purse, and can refuse to fund things. Budgets cannot be passed unless both the House and the Senate agree. Both the House and Senate have separate investigatorial powers, including the ability to investigate wrongdoing in the other branches. The President has the power of the Veto and pardon power, and as head of the executive branch has the right to determine how and when to implement what Congress passes. If he goes too far with that, he can be impeached. Both the Executive and Legislative branches of government are answerable to the Constitution as determined by the Supreme Court.

This structure was put in place intentionally to keep the system stable and to ensure that sweeping changes could only be made with widespread agreement. Partisans on both sides have been whittling away at that for their own advantage since the founding of the country, but the ability for each branch to have oversight over the others, and the structure of those branches, has kept the American government relatively stable and relatively functional for a very long time.

Bone 04-01-2019 04:52 PM

Quote:

Originally Posted by Whack-a-Mole (Post 21568903)
Why can congress set the number of justices?

Seems a constitutional matter to me.

If they can set it at nine they can set it at one or none. If none they can abolish a branch of government. Which would seem crazy but if they can set any number then zero is a number.

My point being, congress does not have the right to limit another branch of government. The executive through the senate is the only prescribed means of getting people on the court per the constitution (which trumps congressional laws).

Have you read article 3 of the Constitution? It describes scenario where Congress can limit and affect SCOTUS. Article 1 establishes the chief justice so Congress cannot set the number to zero.

The court started with six seats as established by Congress, and has gone as high as 10 as established by Congress. Your understanding of the contours of the law in this matter are contain significant errors.

Whack-a-Mole 04-01-2019 04:54 PM

Quote:

Originally Posted by Sam Stone (Post 21568942)
This is just wrong at every level. The American government is set up so that all three branches can limit each other. The House has the power of the purse, and can refuse to fund things. Budgets cannot be passed unless both the House and the Senate agree. Both the House and Senate have separate investigatorial powers, including the ability to investigate wrongdoing in the other branches. The President has the power of the Veto and pardon power, and as head of the executive branch has the right to determine how and when to implement what Congress passes. If he goes too far with that, he can be impeached. Both the Executive and Legislative branches of government are answerable to the Constitution as determined by the Supreme Court.

This structure was put in place intentionally to keep the system stable and to ensure that sweeping changes could only be made with widespread agreement. Partisans on both sides have been whittling away at that for their own advantage since the founding of the country, but the ability for each branch to have oversight over the others, and the structure of those branches, has kept the American government relatively stable and relatively functional for a very long time.

This is wrong at every level.

Can the executive determine the number of seats in congress?

Why can congress determine the number of seats in the Supreme Court?

The checks and balances come in where congress can modify a law to comport with a judicial finding or they can impeach a sitting justice.


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