No this is a statement of someone who understands that the constitution governs how supreme court seats are filled (I can poinit to democratic hypocrisy when it comes to supreme court appointments if you like, the stake are simply too high to let something like accusations of hypocrisy stop you). If you want democratic appointments, then you have to have a democratic president and you need the votes in the senate. Of course the republicans are being hypocritical but there is no constitutional prohibition against hypocrisy. I condemn their hypocrisy but that condemnation is about as useful as a democratic vote in california.
My response is a plan that might make this issue go away. If we pack the court in 2021 with 4 liberal justices, what is to keep the republicans from packing the court with 12 more conservative justices when they have the senate and the white house? Do you think democrats have the advantage in either the electoral college or the senate? Because if you are going to push for tidal shifts in the supreme court every time one party controls the senate and the white house, do you think that works in favor of the democrats or the republicans?
This proposal is about trying to preserve the independence of the judiciary.
I don’t disagree with the spirit of what you’re saying and for the record, I think packing the bench should be an option that’s on the table, but just because the option’s on the table doesn’t absolutely mean that it has to be used or at least not to the fullest extent.
I’m envisioning some sort of compromise in which, assuming Dems win, they rewrite the law so that they can add two justices to compensate for the loss of Garland and Ginsburg’s replacement. And then they say to the GOP, we could add more, and we might but we’re willing to work out some sort of legislative compromise going forward because we recognize that this isn’t a good road to go down into perpetuity - because it isn’t.
If the aim of the OP is some sort of bipartisan or nonpartisan-appearing expanded court, then I don’t really like the proposal of the OP. What would be better, and would meet his appearance of bipartisanship, or nonpartisanship, and is in my understanding within the possibility of the legislature, is to put no particular size on the court, but mandate by law that the President shall (or can) nominate one SCOTUS justice per calendar, unless that candidate is rejected by the Senate, in which they can nominate another (and so on), but only one SUCCESSFUL nomination per calendar year. Forever. So for a while, the court would be growing, but then eventually it would get to a point in which roughly one justice retires per year (and there would be much, much less pressure for them to stick around into extreme old age). So every President gets 4 justices per term, period. I think that would take a lot of the pressure off. It would also encourage Presidents to nominate justices with a good chance of being accepted by the Senate.
The problem with some sort of “we’ll add two and then we all agree that the court packing stops here” deal — even if such a deal could be struck — is that it’s completely unenforceable. Absent a Constitutional amendment, there is no way that the current Congress can bind a future Congress from again expanding the court. And the sort of trust that may have existed in the past that a deal agreed to will be adhered to has evaporated.
I am not opposed to taking an extra seat but I don’t understand the rationale there is for taking 2 seats. What rule, evenly applied, would result in Obama appointing scalia’s successor but trump not appointing rbg’s successor? ISTM that anything more than one seat would simply be a version of court packing.
And you would still feel this way if trump won re-election with a republican senate? I really doubt it.
The first party in power to operate under these rules would have a clear advantage. You need a rule that the opposition party would be willing to voluntarily adhere to. If biden wins the election and you implement this rule, the republicans would increase the frequency to once a month or once a day.
If all you are looking for is a scotus advantage then just pack the court and deal with the consequences but noone is going to be fooled by your scheme.
I think my proposal might yield the good faith that is required for the senate to return to normalcy but it wouldn’t yield the scotus advantage thatpeople seem to think they are entitled to. Liberals praised the court when we had a 7-2 advantage but now it’s just another partisan branch of government. Preserving the institution is worth more than preserving roe v wade.
Because it is in the interest of all americans and especially democrats to have an independent functioning judiciary. You frequently point out the inherent advantage that republicans have in the electoral college and the senate. So how does it make sense to promote a winner take all atmosphere about scotus appointments? Which party do you think is more likely to hold the senate and the white house?
I don’t see how taking more than one set back is going to be seen as anything other than a power grab.
The only way to have even the slightest chance of reachieving this is to completely crush the present incarnation of the GOP, which is hostile to this. That will require a SC that’s not in their pocket.
This assumes that enough Democrats will go along with such a court-packing plan to pass it (a number of red-state or centrist D’s will probably vote against it, sinking the plan). Republicans will probably call that bluff.
If that’s the case, then Biden and a Democrat-controlled Senate have the absolute constitutional right to install a couple dozen hard-left 20-year-old college students for a lifetime appointment. He should do it because he can, and there’s nothing stopping him, and Mitch McConnell can die mad about it.
Constitutions aren’t 100% enforceable anyway; they’re ultimately ‘enforced’ by people who care enough to enforce them. The US political system has many more problems with its democracy than the judicial rigging that Mitch McConnell has implemented these last several years.
The idea behind ‘packing lite’ is that you show the opposition that two can play the game, but that you’d rather not play that game and let’s see if we can find a way to work out a compromise. Democrats won’t win at protecting democracy by being even less democratic than Republicans. If we want to protect the institution of the judiciary, we have to find a way to use our power on one hand but also offering a way out of this political arms race on the other.
But as I’ve tried to point out these last few years, it’s really up to the American people to decide what they want to tolerate. We have to find some way to engage ordinary voters, many of whom aren’t that informed, about ways to protect their democracy. I suspect that to that end, Democrats will be best served by delivering the goods, which means that, in the short run, yes, we might have to use a court packing scheme, kill the filibuster, and do some gerrymandering of our own. But where possible, we’d be wise to pull some of our punches.
Of course they will. I don’t think it will be a bluff - the ACA, and every progressive priority is at risk. A 6-3 Trump court really is an existential threat to progressivism.
Don’t just look at Merrick Garland’s example; look at the entire manner in which the GOP Senate has used (misused) the filibuster. McConnell weaponized the filibuster between 2009 and 2014 before weaponizing the removal of it once Trump won the White House. McConnell has done serious damage to the judiciary not just because he succeeded in adding a few Republicans to the bench but because he has jeopardized the perception of partiality and objectivity of the entire branch. The Democrats have an obligation to provide their own unique remedy.
I guess I’m taking a middle ground between you and some of the other posters. You believe we should only make up for Garland’s nomination; other posters believe we should use court packing to completely load up the judiciary. I’m somewhere in between.
It’s much worse than that. McConnell and his Republican cadre refused to even hold a vote on a very reasonable, moderate, even (arguably) conservative-leaning nominee because “it was an election year”. But this is not just an election year, it’s an election year nearing its final weeks, the nominee has not even been named, and there is the distinct possibility that the actual confirmation will occur after the election, in a lame-duck presidential administration and a lame-duck Senate. The hypocrisy around “the American people should be making this choice” is really breathtaking. Republicans in general and McConnell in particular have absolutely no shame. This is about as undemocratic as you can get short of an all-out dictatorship, which they would also support provided they were the dictators.
That’s the politically sound position right now, from his perspective. If he wins, it’s very likely his position will change (if the Republicans do, in fact, force through this confirmation in the lame duck or before the election).
If you’re not joking here, it’s exceedingly obvious that Thomas, Alito, Kavanaugh, and Gorsuch are at least 95% in the GOP’s pocket. Roberts may only be about 75%.
Are you kidding? Because the Democrats are a serious party, and the Republicans are not. Obviously. And obviously they’ll feel differently… but they’re wrong.