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Old 04-01-2019, 04:54 PM
Thing Fish is offline
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Quote:
Originally Posted by Sam Stone View Post
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.
This analysis ignores the fact that this is not happening in a historical vacuum; the Republicans have already been ignoring established historical norms to pack the Court in their favor. First, they refused to seat a well-qualified, moderate jurist in Merrick Garland. Then, when their next nominee was credibly accused of rape, they didn't fully investigate the allegations, nor did they replace the nominee with someone else -- because doing either of those would have risked not getting a Republican confirmed before the Senate changed hands. So there are now two members of the Court whose legitimacy is highly dubious in terms of "norms" (obviously, I am not alleging that any actual laws were broken). If those Justices, in the future, thwart popular progressive legislation passed by Democrats, the Dems would be IMO foolish to not at least consider every legal method of working around the obstacle.
 

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