SageRat Discussion re Proposed Changes to be Made to the Supreme Court

[Sage_Rat]

@Boozahol_Squid_P.I

A state suddenly being deprived of part of its senatorial representation because their politics don’t line up with the executive’s for up to four years? The only benefit to this that I can see if that it lends itself to term limiting senators, as a once-humbled senator probably loses a lot of the advantages of incumbency.

I should amend it to note that the President can also be humbled.

But, I should say, I’m a Republican. Not some MAGA Republican but the previous kind that holds that you’re responsible for your choices.

This is all - any Amendment to the Constitution - going to be public, published information. The Senators will know and the people will know that if they make choices that are anti-Constitutional/anti-Union, then they’ll be punished for it. And they’re all free to make those choices, if they feel like - in that moment - it was worth it. But that doesn’t mean that there shouldn’t and can’t be repercussions.

Right now, for example, any governmental body in the land can pass a law that violates the Bill of Rights. Florida can decide to restrict speech that’s pro-LGBT. For some years, that law might be in place, clearly in violation of the First Amendment, cause all sorts of harms to society, and all that happens at the end of that is that the law is revoked by the Supreme Court. The politicians in Florida made headlines, raised campaign funds, and…no downsides. Not a one.

Personally, I think we need more punitive amendments. The Constitution was written for a group of people who considered themselves to be “gentlemen”, with duties to behave a certain way. And, if any did something so terribly offensive, they’d be challenged to a duel and killed for “stomping on the Constitution” or tarred and feathered by the local townsfolk. We don’t live in that era.

In our era, attacking the Constitution is only pluses. It’s become the time to institute rules that - like mine - humble you for misbehavior and others that more generally say, “If you come for the King, you’d best not miss”.

[Thing.Fish]

Everyone votes on strict party lines now. Any proposal requiring a 60% supermajority means no Justice will ever be confirmed unless the President’s party has 60 Senators. Likewise, that “humbling” proposal would leave only 2 or 3 Senators intact, which isn’t enough to chair all the commissions.

Not allowing “extremists” to vote on SCOTUS nominees is just a bad idea, but permanently crippling their ability to function as Senators is downright crazy.

Really, I don’t think we need to be making any major changes to the way Court appointments work; we just need to acknowledge that this particular Court sucks, and add new Justices until it doesn’t suck anymore.

[Sage_Rat]

@Boozahol_Squid_P.I

It’s more of an issue of complexity than length or word choice.

Simpler version:

A supreme court justice may only be appointed with a 60% supermajority of the reviewing body.

Should no supreme court justice be approved within 30 days of a seat becoming vacant, the President and all Senators must, individually, appoint a replacement for their roles as appointer and reviewers. Said replacements shall carry on with the appointment and review process. Said replacement process shall repeat every 30 days, with no person participating in the process more than once, until a new justice is approved.

But I’d go with the longer version, personally.

[Measure_for_Measure]

@Sage_Rat

Personally, I think we need more punitive amendments. The Constitution was written for a group of people who considered themselves to be “gentlemen”, with duties to behave a certain way. And, if any did something so terribly offensive, they’d be challenged to a duel and killed for “stomping on the Constitution” or tarred and feathered by the local townsfolk. We don’t live in that era.

In our era, attacking the Constitution is only pluses. It’s become the time to institute rules that - like mine - humble you for misbehavior and others that more generally say, “If you come for the King, you’d best not miss”

When Aaron Burr shot Hamilton, it was scandalous. Furthermore, democratic norms regarding the filibuster only started to seriously crack during the 1980s: the US enjoyed decades of democratic norms long after 18th century mores had disappeared.

Ok, so your paragraph needs editing. I appreciate your efforts to grapple with underlying fundamentals: you even proposed some helpful vocabulary. I think the concept of, “Humbling” deserves detailed thought and consideration.

There’s a serious problem though. You seem to think that harsh incentives are sufficient to create better outcomes and neglect to consider the sheer difficulty getting 100 prima donnas to agree. Humbling should be something akin to the nuclear option: it should be a last resort. So I think the deadlines need to be stretched out. Yes, there are downsides to this and yes I would expect Senators to run the clock. You also seem to think that permanent punishment is a great idea. I disagree: robust social systems contain an element of forgiveness. The classic example of this is tit for tat as a game theoretic solution.

How about this? President given 30 days to nominate a candidate. Senate given 90 days for an up or down vote with a 60 vote threshold. If the vote fails, President given 60 days to nominate another candidate - but now the Senate has 120 days with a 55 vote threshold. Rinse and repeat the 60-120 day deadlines until a 40 vote threshold applies. Now the President might just nominate extremist after extremist, provided the 40 vote threshold could be met. But that would require 5 votes over a period of 840 days or 2.3 years. Keeping the Supreme Court seat vacant and enduring a lot of lost votes would be something that a President would want to avoid.

Ok, but now you enhance the incentive for obstructionism. So we reintroduce a variant of the humbling concept after the 3rd vote (which has a 50% threshold). I’m not sure what the best penalty for humbling would be. Whatever it is, certain messaging oriented politicians would consider it a badge of honor.

Is this complicated? Yes. But I think that once norms are eroded, the solution has to be complicated. As well as carefully debugged.

[Sage_Rat]

@DeadTreasSecretaries

Given how easy you think it is to convince the voters of things, to the point where amendments like this are realistic, why has gridlock been so commonplace for so long and why have the only patches been the nuclear option on the filibuster.

Trump ran or considered running for President some two or three times, before 2016. Marx wrote his book, between 1867 and 1894, but the Germans stuck with capitalism and it was decades before the Communists took over in Russia, under different leadership. Most singers don’t become Taylor Swift.

For any particular thing, there’s a right time, place, and message for it to become a movement.

I have no idea whether this is that time or the message but, I’d guess, Taylor Swift fans didn’t approach the question of whether she’d one day be a mega-star by telling each other, “No, that’s not realistic. It’s I-M-P-O-S-S-I-B-L-E.” They just said, “Yep, she’s amazing. You should listen to her.”

If something is good and you’re not promoting it, then you’re overthinking the issue.

[Sage_Rat]

@Measure_for_Measure

There’s a serious problem though. You seem to think that harsh incentives are sufficient to create better outcomes and neglect to consider the sheer difficulty getting 100 prima donnas to agree. Humbling should be something akin to the nuclear option: it should be a last resort. So I think the deadlines need to be stretched out. Yes, there are downsides to this and yes I would expect Senators to run the clock. You also seem to think that permanent punishment is a great idea. I disagree: robust social systems contain an element of forgiveness. The classic example of this is tit for tat as a game theoretic solution.

Genuinely, I’m easy. As said at the top, I’m not married to anything as regards a particular set of text goes.

I think that a supermajority requirement was put there for a reason and that, by removing it, we’ve harmed our nation. Any amendment that restores it and doesn’t lead to deadlock is fine by me, and I’m happy to see what you’d do.

[Measure_for_Measure]

@Sage_Rat

I think that a supermajority requirement was put there for a reason and that, by removing it, we’ve harmed our nation. Any amendment that restores it and doesn’t lead to deadlock is fine by me, and I’m happy to see what you’d do.

Well, let’s recall that SCOTUS judges require a simple majority of the Senate to confirm, that the filibuster was established as a wholly unintended consequence of early 19th century reforms, and that the sparingly used filibuster was modified to require 60 votes in 1975. I suspect your underlying concern is with regards to factionalism: Senators should put country before party and act with some degree of independence.

I think that’s a tough genie to entice back into the bottle and furthermore most democracies in high income countries around the world place no emphasis on bipartisanship. So it’s not that much of a virtue. My take is that our checks and balance structure was based upon 18th century theory and not empirical observation - by necessity as there were no recent examples of democracy to imitate. As it happens, I understand that Latin American countries imitating the US system during the 1800s tended to collapse into gridlock, then dictatorship. From that, I conclude that our 240 year experiment with democracy is propped by norms and that it’s underlying structure is far from optimal (though still frankly incredible given what the founders had to work with).

I like the concept of humbling though. It’s different than censure as it has a penalty. I think that it could still be effective if its duration was short of a life sentence.

[Sage_Rat]

Woops, sorry I missed that you had made a proposal (not ideal trying to work and hold a thread of my own at the same time).

@Measure_for_Measure

How about this? President given 30 days to nominate a candidate. Senate given 90 days for an up or down vote with a 60 vote threshold. If the vote fails, President given 60 days to nominate another candidate - but now the Senate has 120 days with a 55 vote threshold. Rinse and repeat the 60-120 day deadlines until a 40 vote threshold applies. Now the President might just nominate extremist after extremist, provided the 40 vote threshold could be met. But that would require 5 votes over a period of 840 days or 2.3 years. Keeping the Supreme Court seat vacant and enduring a lot of lost votes would be something that a President would want to avoid.

I see three issues.

First is, “What would Trump do?” We saw, during his administration, that he was perfectly happy to let posts stay open for years and years. The FEC stayed unstaffed. Nearly every cabinet position was a temp.

As a con man, he’s addicted to risk. He just loves trying to see what he can get away with. Nearly all con artists are addicted gamblers. So we’d expect him to keep pressing for what he wants - his loony judge - and gamble on his own ability to turn the Senate into a band of his own folk. Every two years, he gets a chance to do so and he just needs to make some great whopper of a fib, like that terrorists are being snuck through the Southern border by a group of Socialists, to rally the base and get the vote out in droves. He might win it.

Second, is that it seems to assume that the nefarious party is the President. And, to be sure, that could be the case but it’s probably more rare these days. Congress hasn’t had to remove most of its safeguards, to prevent deadlock, because Merrick Garland or most submissions by the Executive branch were extremist. They just do it on everything, for party purity.

Now, granted, I lay that at the feet of transitioning away from the voice vote and publicizing the voting record, but it remains that Congress is more often the issue and, I suspect, all that you will get with this method is that the dissenting party will “stand their ground” for their electorate until, eventually, the threshold is so low that any extremist can be passed through.

Third, if we can imagine Merrick Garland getting turned down in the first cycle, and that we have to wait years even for reasonable proposals to make it through, then the issue isn’t extremism in candidate selection, it’s in the system as a whole, the people who are elected, and the incentive system. We are, fundamentally, not solving the problem that we’re setting out to solve. We’re just endorsing the deadlock and giving more ways for bad actors to generate headlines. Strom Thurmond is still famous for the longest filibuster ever. Someone out there is looking to make Strom proud.

I do recommend a move back to the voice vote, and that may be the solution to deadlock and headline fixation. I’m sure that it would make things somewhat better, but I’m not confident that it would be sufficient.

[Sage_Rat]

@Measure_for_Measure

I like the concept of humbling though. It’s different than censure as it has a penalty. I think that it could still be effective if its duration was short of a life sentence.

Two years?

[Boozahol_Squid_P.I]

By “appoint a replacement” would that just mean “send one of my staffers to go into the Senate chamber and vote how I told him to” ? If so, I don’t think this rewrite would be much of a solution to committed deadlocking by a bitterly divided Senate.

[Sage_Rat]

You’re correct that they could appoint some flunky, and that was considered. And, likewise, the President could do the same. But there’s several things that change the result from the previous round.

1. Plausible deniability. If we presume that your average politician wants to make dramatic gestures for the masses but understands that, at the end of the day, he lives here and he shouldn’t screw it up no matter how much the electorate wants him to “Own the <libs/cons>”, then this stage offers him an escape hatch. He nominates someone and, whatever choice that person makes, it wasn’t his fault. It’s that other guy’s fault. By golly gee whiz, I really couldn’t have ever expected him to do that!
2. The flunkies are always changing. Eventually, you run out of flunkies.
3. Flunkies are, despite the word, still independent actors. The belief that they’re mindless automatons doesn’t mean that they actually are. Lukashenko has still not sent any Belarusians into Ukraine.
4. The nominees are always changing. If the problem was on the side of the President, he’s on to his own flunkies by round 2 as well, and those people are giving different options than the first round. Some of those may be far more acceptable for the same reason as in #1, the President was given plausible deniability. Or, at any case, eventually you’ll run out of ridiculous people to nominate. It’s unsustainable to keep trying to game the system.
5. Except, of course, the President is less likely to have chosen flunkies since his replacements are the people that he nominated (and then the people that those people nominated). If he was to submit his staffers for the Supreme Court, that’s pretty clearly a corrupt move. It doesn’t look good. Not to say that some President might not do it but, for reasons of optics, it’s going to be much better to submit a list of judges. Those are unlikely to be flunkies. But, as above, eventually you do run out of flunkies, either way, and they’re not true automatons.
6. Congress has rules for how to run things, inside Congress, as Congressmen. They have obligations, they’ve been lobbied, they aren’t impartial. The replacements for the Senators are far more free. They can meet and deliberate in secret. They can announce a decision without having to justify it to anyone since, after all, how does their “boss” review it or how does the public review it if the group decided to meet in a locked room, with no cameras?

By rounds 3 and 4, you’ll be beyond the influence of anyone in the government and you’re getting towards sortition. You’re fairly well guaranteed a new appointee in under 4 months time.

[Sage_Rat]

A flaw in my amendment is that it doesn’t discuss what happens if people fail to nominate an alternate for themselves.

On the side of the Executive branch if, at any stage, there are no nominees then the next person in succession for the Presidency, who has not already done so, shall propose nominees. E.g. on the second round (when no persons were nominated in the 1st round), the VP would make nominations; on the third round (when, again, no persons were nominated in the 2nd round) the Speaker of the House would do so; etc.

On the side of the Legislative/Senatorial branch if, at any stage, a person fails to appoint a replacement then the total number of individuals in the pool of reviewers shrinks equally.

[Boozahol_Squid_P.I]

I don’t know if I agree that the President would use someone other than his staffers. Ideally, even in good faith, the person who the President should trust the decision making qualities of is his Chief of Staff. You have to go a fairly long ways until the President is choosing between an intern terrified of nominating someone other than who they’re told and the Secretary of State or the VP being forced to make a decision. And no matter whom is selected, the opposition party will declare it a corrupt choice, the President’s party will declare it a natural selection, and the person selected will have their job on the line if they don’t select someone from the Heritage Foundation/ABA list.

[Sage_Rat]

@Boozahol_Squid_P.I

I don’t know if I agree that the President would use someone other than his staffers. Ideally, even in good faith, the person who the President should trust the decision making qualities of is his Chief of Staff.

Yes, but he’s nominating his Chief of Staff as a Supreme Court justice, not as a surrogate for himself. Only should the nomination be rejected does that person become a surrogate. And if the person is accepted, then he loses his Chief of Staff.

It’s also fairly well a given that he’ll immediately have his selection rejected, because he hasn’t put forward a judge, or someone who could credibly do the job.

It’s something that the President could do as a delay tactic but the President doesn’t really have a motive to delay the process. He wants it to move forward as fast as possible, while traveling the least-far away from his own control.

[Boozahol_Squid_P.I]

Oh, I’m sorry. I thought when you said that the President would have to pick a substitute, he’d pick a substitute to make the nomination, not that once 30 days had passed, the nominee would be permanently barred from consideration.

Are you not concerned that this couldn’t lead to a general lowering of Supreme Court possibilities, if the Senate just has to hold put for a few months to eliminate the top candidates permanently of the opposing party?

[Sage_Rat]

@Boozahol_Squid_P.I

if the Senate just has to hold put for a few months to eliminate the top candidates permanently of the opposing party?

Sure, if they want to go through multiple rounds of decimation.

[Sage_Rat]

@Boozahol_Squid_P.I

Are you not concerned that this couldn’t lead to a general lowering of Supreme Court possibilities

There are 1.3m lawyers in the US. The top 1% would be 13,000 people. I’m not worried that this system would appreciably discard any notable percentage of the top picks.

I also suspect that you could pull in some near-by professions like historians and still get a good output.