# Fixing the Supreme Court without packing it **URL:** \ **Category:** Great Debates\ **Created:** [July 5, 2018, 6:56pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338 "2018-07-05T18:56:51Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 6, 2018, 4:58pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/61 "2018-07-06T16:58:56Z")
> [@HurricaneDitka](#): > > I’m fine with that, I just don’t think it’s a sufficient deterrent. For my evidence, I point to how easily, almost casually, most of the Senate Dems voted against Gorsuch, and are already planning to vote against whoever President Trump selects next. They have not, and will not, suffer any political pain for doing so. Republicans are witnessing this and learning that there will be no harm to them in voting against future Sotomayors or Kagans in similar fashion. Dopers should ask themselves - would you vote against a Senator who announced that he or she will not vote for anyone Trump nominates? Regards, Shodan ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [July 6, 2018, 5:01pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/62 "2018-07-06T17:01:17Z")
> [@Ravenman](#): > > 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. Harry Reid didn’t really fire the first shot; he responded to the excessive use of political obstructionism by the same Senate leader who escalated the obstruction even more by refusing to take up Garland’s nomination. ---
**Author:** ![Profound\_Gibberish](https://avatars.discourse-cdn.com/v4/letter/p/65b543/32.png) [@Profound\_Gibberish](https://boards.straightdope.com/u/Profound_Gibberish)\ **Post date:** [July 6, 2018, 5:04pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/63 "2018-07-06T17:04:26Z")
30 year term limits for all SC Justices. Retirement income is based on percentage of years served up to 30. 20 year term limits for Senate and Congress. Retirement income is based on percentage of years served up to 20. Served 4 years? You get 1/5 of full retirement benefits. Public funding of all national elections. Funding is based on citizens contributing via tax returns to a single pool, to be distributed evenly amongst all candidates that have obtained X# of signatures to be on the ballot. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 6, 2018, 5:05pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/64 "2018-07-06T17:05:53Z")
> [@Shodan](#): > > Dopers should ask themselves - would you vote against a Senator who announced that he or she will not vote for anyone Trump nominates? > > Regards, > Shodan Why should we ask ourselves that? Everything Trump does should be opposed. If Trump nominated me for Supreme Court I would hope my senators would oppose it. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [July 6, 2018, 5:24pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/65 "2018-07-06T17:24:31Z")
> [@Shodan](#): > > Dopers should ask themselves - would you vote against a Senator who announced that he or she will not vote for anyone Trump nominates? > > Regards, > Shodan Well, I’m not a single-issue voter (or an American, but let’s pretend!), but I am one who has changed parties based on the accumulation of wrong-headedness on the part of the party I used to vote for, so such a position would certainly be a contributing factor in my decision on how to vote. This would be particularly true if Trump, against all expectations, actually made a decent nomination, and the idiot senator stuck to their guns, and refused to vote for them. ---
**Author:** ![Corry\_El](https://avatars.discourse-cdn.com/v4/letter/c/ecae2f/32.png) [@Corry\_El](https://boards.straightdope.com/u/Corry_El)\ **Post date:** [July 6, 2018, 5:26pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/66 "2018-07-06T17:26:37Z")
> [@John\_Mace](#): > > Poland is in a crisis because the change is retroactive and a good chunk of the judiciary is being ousted immediately. If we put in mandatory retirement ages, we’d phase it in or make it a requirement only for new justices. We needn’t purge the court as it exists right now, which is what Poland is doing. Just like I said, you can Google it up and point out differences. But it’s still the legislative and executive getting together to legislate and sign an increase in their power. Which is why it might take a constitutional amendment. Which, given that in reality it’s obviously inspired to prevent Trump, if he lasts two terms, from appointing as many as 4+ people (including Gorsuch and current one) for life, it wouldn’t happen. Lots of people are appalled by that possibility. Lots are the opposite. It’s a divided country. The amendment process requires clear consensus. Amendments thought up by Democrats (even if calling themselves a ‘non partisan group’) to restrain the GOP are going nowhere. As would be the case with the shoe on the other foot. The idea of a deal to go back to a 60 vote threshold is a little more realistic. It’s within the Senate’s power. The problem there is the yawning trust gap. Trusting the other party wouldn’t just vote down anyone nominated by Trump (or President Warren, or Harris etc assuming a \>40 vote GOP Senate minority) if they had more than 40 votes. I think both sides basically would do that. They wouldn’t admit it. They’d say they’d be fine with any ‘mainstream’ nominee (aka somebody their own party’s President would have gladly named with a friendly 60 vote majority). But that’s what would happen IMO, USSC seats would basically stay empty till one party had 60 votes plus the WH, till there was enough of a decent interval for a party with \<60 vote majority to move the threshold back to 50 to end the ‘blind obstructionism, never envisioned in the original deal’ of the other party. ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [July 6, 2018, 5:55pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/67 "2018-07-06T17:55:22Z")
I like the basic concept of term limits for judges but I see a loophole that I don’t know how to fix. Let’s take real justices out of it for for the moment and just alphabetically label our Justices (from newest appointed to #9 being the longest serving justice). The R and D are just shorthand for how they usually vote. 1. Alice ® 2. Bob (D) 3. Carol ® 4. Duane (D) 5. Egbert (D) 6. Fernando (D) 7. Gerri ® 8. Hubert (D) 9. Irene (D) So we’ve got a president in office who’s a Republican. Per the rules you listed, he gets to replace Hubert and Irene. He does. Everything’s on track. BUT Fernando dies from eating too much pie. Our Republican president gets to replace Fernando. Then Gerri, thinking fast, realizes she’s at the top of the list and is the next to go and retires to "spend more time with her family. With the president’s replacements, the list now looks like this 1. Jorge ® 2. Kelly ® 3. Lorenzo ® 4. Michelle ® 5. Alice ® 6. Bob (D) 7. Carol ® 8. Duane (D) 9. Egbert (D) Not only have we swapped the balance of the court pretty dramatically, we’ve insured a Republican court for the next ~18 years. What can be done about deaths and strategic resignations? ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [July 6, 2018, 6:03pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/68 "2018-07-06T18:03:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Not true. Republicans filibustered [Abe Fortas](https://en.wikipedia.org/wiki/Lyndon_B._Johnson_Supreme_Court_candidates#Abe_Fortas_Chief_Justice_and_Homer_Thornberry_Associate_Justice_nominations)’ nomination for Chief Justice by LBJ until Fortas withdrew his name from consideration (Fortas’ initial appointment as an associate justice went smoothly). This is one of those dumbass “fake news” items that Democrats keep repeating and which drives me nuts. From Wikipedia, “24 Republicans and 19 Democrats vot[ed] against cloture” Notice that second part about the 19 Democrats? Yeah, they were Dixiecrats, but they were still in the (D) column, not the (R) column. There were also 12 other Dems who just didn’t show at all which counts as a vote against cloture for practical purposes… The Dems killed Abe Fortas’s nomination\*, not the Republicans. \*And given that he was later found to be as crooked as Nixon, that’s a good thing. > **[Abe Fortas | Ethics scandal and resignation](https://en.wikipedia.org/wiki/Abe_Fortas#Ethics_scandal_and_resignation)** > > Fortas remained an associate justice, but in 1969, a new scandal arose. Fortas had accepted a US $20,000 (equivalent to $166,000 in 2023) retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. In return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). However, in order to avoid apparent impropriety, Fortas returned the money the same Wolfson... ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [July 6, 2018, 6:05pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/69 "2018-07-06T18:05:56Z")
**Fenris** , I believe the idea is that the 18-year term goes with the seat, not the Justice. So whoever replaces Gerri and Fernando will still be at the end of the list, not the beginning. This is consistent with other offices with term limits. The term goes with the calendar, not the officeholder. ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [July 6, 2018, 6:12pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/70 "2018-07-06T18:12:13Z")
Aaaah. That makes sense then. Unless LHoD disagrees with you, I’m satisfied and I withdraw my objection to gaming the system that way. (I appreciate it, btw. I’d never have thought that the seat has the term limits. Thanks!) ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [July 6, 2018, 6:51pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/71 "2018-07-06T18:51:06Z")
> [@Fenris](#): > > Aaaah. That makes sense then. Unless LHoD disagrees with you, I’m satisfied and I withdraw my objection to gaming the system that way. (I appreciate it, btw. I’d never have thought that the seat has the term limits. Thanks!) That’s how I think I’d handle it. Lemme dig around, though, see what the original proposal is. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [July 6, 2018, 7:01pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/72 "2018-07-06T19:01:17Z")
Man, that proposal is not easy to find. [This is the text of the bill proposed.](https://fixthecourt.com/2017/06/tlproposal/) I can’t find anything to deal with shenanigans like McConnell’s “I’m not going to hold a vote.” That’s a real problem. Note part of the proposal is that whenever there’s a vacancy, the most recently “seniorized” member of the court (i.e., whoever retired most recently) acts as a sub. I’m imagining something–and forgive me if there’s an unexpected problem with it–in which, if a nomination is blocked by either party, the opposing party may choose among the senior judges for someone to fill the vacancy. IOW, if Dems are in the minority and they successfully filibuster, the Republicans can choose either Anthony or anyone other retired justice to fill in the vacancy, until the vote is held. If we’re talking about 2016 when Repubs refused to hold a vote, the Dems would get to choose a retired SC justice to fill in the vacancy until the vote is held. With 18-year terms, there is going to be a much larger pool of living retired justices. But that may be foolish for some reason I’m not seeing. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 6, 2018, 7:34pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/73 "2018-07-06T19:34:08Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Not true. Republicans filibustered [Abe Fortas](https://en.wikipedia.org/wiki/Lyndon_B._Johnson_Supreme_Court_candidates#Abe_Fortas_Chief_Justice_and_Homer_Thornberry_Associate_Justice_nominations)’ nomination for Chief Justice by LBJ until Fortas withdrew his name from consideration (Fortas’ initial appointment as an associate justice went smoothly). Very true. I should have said that the filibuster was not used as a matter of course. If it was, Thomas would not have been confirmed. > [@Horatius](#): > > But under this proposal, the power to do that would be removed from the Senate. That’s kind of the point, to avoid this sort of gamesmanship. If the Rs want to try to whistle their way past the X-day deadline, then fine, the Ds will just show up on Day X, and vote against the nominee, who then loses because all the Rs are marked as abstentions. Then I don’t understand the proposal. How is the Senate forced to vote on Day X? What if McConnell schedules a debate on the renaming of a Post Office that day? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [July 6, 2018, 7:42pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/74 "2018-07-06T19:42:57Z")
> [@Horatius](#): > > … But under this proposal, the power to do that would be removed from the Senate. That’s kind of the point, to avoid this sort of gamesmanship. If the Rs want to try to whistle their way past the X-day deadline, then fine, the Ds will just show up on Day X, and vote against the nominee, who then loses because all the Rs are marked as abstentions. If all the R’s are absent, there’s no quorum. Without a quorum, they can’t hold the vote. This was exactly the sort of idea the D’s were floating a few days ago to block Kennedy’s replacement, except the R’s actually have the numbers to make it work. ---
**Author:** ![g8rguy](https://avatars.discourse-cdn.com/v4/letter/g/7cd45c/32.png) [@g8rguy](https://boards.straightdope.com/u/g8rguy)\ **Post date:** [July 6, 2018, 8:59pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/75 "2018-07-06T20:59:21Z")
It seems to me that we’re running into at least a couple of problems, though I don’t object to term limits for Supreme Court justices. One is that we have to figure out what to do when Congress is being intransigent. The proposals I’ve seen bandied about in this thread basically amount to someone being rewarded for that intransigence. I think **LHoD** ’s latest idea is better – what we would really need is somethat that provides a strong incentive for the Senate not to behave like a bunch of kids. But I claim the bigger problem is that the Senate does have a strong incentive to behave like a bunch of children, and that is that we, as voters, reward them for it. **Procustus** ’s post illustrates that quite nicely. He _wants_ the Senate not to participate in any way other than obstruction. McConnell being rewarded for his behavior with Garland is another. And as long as the Senate is doing what we the people actually want the Senate to do, as expressed by the way we vote, I suggest that the problem isn’t with the rules and it isn’t with the Senate, it’s with the voters. I’m not sure I see a way out of that. We can replace Senators; it’s a lot harder to replace the populace! ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [July 7, 2018, 5:45am UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/76 "2018-07-07T05:45:32Z")
I don’t think the obstructionist problem can be solved with these rules. The same result could have been reached by spending a couple of months “considering” Garland and then voting the nomination down. Would there really have been more fallout from voting down a qualified, moderate, nominee than from refusing to fill the vacancy at all? Forcing a vote when the Senate majority opposed the nominee just gets the nominee rejected. If the majority wants to hold a vacancy for the next president, they can do so by rejecting nominees until they’ve run out the clock. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [July 7, 2018, 10:34am UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/77 "2018-07-07T10:34:54Z")
Similar to what g8rguy wrote, I don’t think there’s any solution as long as one side plays procedural warfare. The underlying problem is that one side is no longer acting in good faith. An even deeper problem is that one side is no longer behaving democratically. Using tricks like gerrymandering and voter suppression, it wins control of the executive, legislative, and judicial branches despite the fact that a majority of voters have been inclined to vote against them. We can’t fix the judiciary unless we resolve the deeper problems first. SCOTUS nomination drama isn’t the disease; it’s the symptom. The disease is that there are too many voters voting for plutocracy. ---
**Author:** ![Silver\_lining](https://avatars.discourse-cdn.com/v4/letter/s/aca169/32.png) [@Silver\_lining](https://boards.straightdope.com/u/Silver_lining)\ **Post date:** [July 7, 2018, 1:27pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/78 "2018-07-07T13:27:26Z")
Given that Ginsberg will be 86 in August, and Breyer will be 80 in August, it is highly unlikely that both would live out a 2nd Trump term. If one were to step down or pass on from old age with the Republicans having a majority or 50% of the Senate, it would be the political equivalent of checkmate for the liberals for the next 25- 30 years on the Supreme court. You could argue Trump’s appointment will swing the court that way for years all by itself. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [July 7, 2018, 1:59pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/79 "2018-07-07T13:59:26Z")
> [@Silver\_lining](#): > > Given that Ginsberg will be 86 in August, and Breyer will be 80 in August, it is highly unlikely that both would live out a 2nd Trump term. > > If one were to step down or pass on from old age with the Republicans having a majority or 50% of the Senate, it would be the political equivalent of checkmate for the liberals for the next 25- 30 years on the Supreme court. > > You could argue Trump’s appointment will swing the court that way for years all by itself. It might, or it might lead to a political crisis that threatens to nullify courts and throw the entire constitution into question. If in 10 years 75% of the public finds itself financially distressed and the Courts are standing in their way, then the Courts would face a lack of confidence. Packing the court would be a constitutional remedy, but it would also damage the credibility of the court system. To some degree the courts are already damaged goods because of partisanship. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [July 7, 2018, 2:32pm UTC](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338/80 "2018-07-07T14:32:59Z")
> [@asahi](#): > > … If in 10 years 75% of the public finds itself financially distressed and the Courts are standing in their way… I’m curious what sort of scenario you were imagining that would find 75% of the public financially distressed, and somehow be laid at the feet of SCOTUS. Maybe it’s a lack of imagination, but I’m having a hard time coming up with anything remotely plausible. [Previous page](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338.md?page=3) [Next page](https://boards.straightdope.com/t/fixing-the-supreme-court-without-packing-it/817338.md?page=5)