Fixing the Supreme Court without packing it

Jennifer Rubin has an interesting column in WaPo today: How to fix the Supreme Court without packing it. She gives a couple of proposals:

So: have a new SC nomination every two years; and have a hard reset on the rules.

The first one is pretty appealing to me, I think. The second one is appealing, but I’m not sure how to keep things from going, very quickly, back to where they are now.

But I’m not a hard-core courtwatcher like some of y’all, and I’d love to hear your thoughts.

It seems more than a little convenient that now that the Dems are in the minority and facing the prospects of having a SCOTUS justice they don’t like pushed through, suddenly they want to return to the practice of 60-vote super-majorities on nominees. Harry Reid let the genie out of the bottle. I don’t think there’s any realistic hope of putting it back in.

Harry left the 60 vote standard for Supreme Court nominees. It was Turtle Man who killed it for Supreme Court nominees.

Yeah, I’d rather not get this into finger-pointing and blame, tempting though it may be to dispute your characterization of events. (and note that the proposal is for these reforms to kick in in 2020, not immediately).

If that’s all your interest in these proposals, consider that interest noted. Meanwhile, if anyone wants to address the merits of the proposals, I’d love to hear that.

Would you accept pushing the enactment of this proposal back to 2025 instead of 2021?

It is undeniable that Harry Reid fired the first shot in this particular battle.

However, Republicans are no longer to be trusted with such a system. They screwed Garland. They would just screw any Democratic President out of two nominees.

For the purposes of not making this descend into more penny-ante partisan bullshit, absolutely. I mean, sooner is better, but sure, let’s say these reforms were to go into effect in 2025. What do you think about them then?

An amendment could fix this possible problem, with the equivalent of a pocket veto: say that the Senate must hold a vote on a nominee within, say, thirty days of nomination, or else the nominee is automatically seated.

I know you’re just quoting a the article, but I think Rubin lied when she called it “the nonpartisan Protect Democracy”. I don’t believe that they’re non-partisan. Here’s what their website says:

And where did the “United to Protect Democracy” organization get it’s start?

source: Politico - Obama lawyers form ‘worst-case scenario’ group to tackle Trump

ETA: I’ll try to write up a response focused on the proposal, regardless of what I think is the obvious partisan lean of those advocating for it.

What happens if the Senate just votes down the nominees? Imagining a scenario where a President is from one party and the Senate is controlled by the other, I guess we would have changed the Constitution to force them to vote, but what happens if the Senate just keeps voting “no” on everyone the President nominates, effectively holding that seat open until their party wins back the Presidency in the next election, or even the one after that?

Or if say one party decided not to hold a vote at all on a nominee because the president wasn’t from their party?

Sure glad no political party ever did that.

I’d refer you to this post by the OP:

Meh. If you bring up a parallel so close to what has actually happened as a possible negative consequence, it cannot help but be pointed out. The situation you describe already exists, it has already happened, in effect.

The OP did this…then you went on to your next objection without noting that request was granted. Why did you ask for this concession in the first place?

No, actually it’s because we have a fanatical, uncompromising conservative ideology ruling all three branches of government, and the precious system of checks and balances that was created to prevent a complete government takeover by any one ideological entity no longer exists. This nation is closer to a fascist takeover than it has ever been.

This is in no way worse than our current state of affairs. If the senate is to be a check on the president’s power of SC appointment, then they must be able to actually check it.

Your scenario can go in at least two directions:

  1. The president keeps nominating extremist people. Let’s say that she declares openly that she’ll only nominate judges who agree to vote in favor of all her executive actions. In that case, the senate might vote no in every case. When election season comes around, the president is gonna suffer for it.
  2. The president nominates reasonable people, and the opposition party just flat-out refuses to vote in favor of them for transparently partisan aims. In this case, the court will go down to 8 members, and then there’ll be an election for 33(34) senators. Those who refused to approve reasonable nominees and who forced a smaller court will pay a price at the polls. If they manage to hold on to power and to repeat their shenanigans, the court will go down to 7 members, and then there’ll be another election.

In reality, of course, the opposition party will claim that it’s #1, and the president will claim it’s #2. The voters will have to decide.

But I think this system removes some of the uncertainty from the process and some of the unintended consequences (e.g., presidents have a vested interest in nominating someone young, given the lifetime appointment status). The political pressures it’ll put on both senators and presidents will be more predictable, and it’ll be a little harder to come up with parliamentarian games.

Hey, folks, all the partisan sniping? You know I love joining in a partisan slap fight and will be happy to do so elsewhere–but is it possible to discuss these proposals on their own merits instead of all the slapping? Pretty please?

So the deal is that they confirm whoever Trump nominates this time, and in return, make their vote count less next time.

I can see how that benefits the minority party, but I don’t see why any Republicans would go for it. It would make more sense to offer the same deal to marginal Democrats.


I quoted the thrust of each proposal, but the article has more details. In particular, the idea is that this proposal would go into effect after the 2020 elections, to put it far enough in the future that neither party can play games with it.

I’m not sure that people will be any less willing to fight scorched-earth-style for a SCOTUS justice that they know will serve for the next 18 years than they are today for justices that they know will serve for some unknown period of time in the range of two or three decades.

I asked a question and then he answered it. I was not aware that I was required to note that the request was granted. I’d be less opposed to the proposal if it were to go into effect in 2025 than 2021. Is that enough of a note for you?