Why won't Biden do his duty (as perceived by the OP)?

Politics & Elections
1

In US history there have been several instances of Presidents making Supreme Court nominations in order to balance the size of the Court with the number of federal Courts of Appeals (aka Circuit Courts).

Today the number is out of balance. There are nine Justices, but thirteen Courts. (Nomenclature notes: “13 federal appellate courts” = U.S. Courts of Appeals = 13 circuits (11 covering geographic areas of the USA plus the District of Columbia Circuit (Washington, D.C.) plus the Federal Circuit, which hears appeals from federal courts across the USA in cases involving special areas of law.)

Joe Biden can and should reconcile the number of Justices with the number of Circuit Courts. It’s fair to say that this is his duty.

And it’s quite practical to do. There is plenty of precedent: there are 49 days from now until January 3—the date on which the 118th Congress, which has a Democratic Senate majority, will change to the 119th Congress (which will have a Republican/MAGA majority in the Senate).

49 > 39. And “39” is the number of days from the date Ruth Bader Ginsburg died, to the date Amy Coney Barrett was confirmed to take her place on the Supreme Court. 39 days.

It’s just two years since Ketanji Brown Jackson was confirmed as a Justice. The files on potential candidates (from which Jackson was chosen) must still exist. Biden can pick four and announce them today. Or even tomorrow. Or even ten days from today----that would still leave the 39 days that we know are sufficient to get a Justice nominated-then-confirmed. (And four should be able to be moved through the system nearly as fast as one. Those who were considered in 2022 will already have been vetted fairly closely, after all.)

Here’s how it went for Amy Coney Barrett:

  • Ruth Bader Ginsburg dies 18 September 2020
  • ACB is NOMINATED by Trump 26 Sept 2020 (eight days later)
  • ACB’s HEARINGS began 12 Oct 2020 (24 days after RBG death) and lasted 4 days.
  • ACB is CONFIRMED by Senate vote on 26 Oct 2020 (30 days after nomination) (with a vote of 52 to 48)
  • ACB ASSUMED OFFICE 27 Oct 2020 (39 days after death of RBG)

Joe Biden could, fairly, easily do his duty to reconcile the number of Justices with the number of Federal Courts of Appeals.

But Biden is a ‘don’t make waves’ kind of guy. This certainly would make waves. In the past, when (we know) he was hoping to be elected to two terms, he held back because making waves could lose him votes.

He has no votes to lose, now. He could do his duty.

What will be his excuse, now for failing to do what’s already been done a number of times in US history: reconcile the number of Justices with the number of Circuit Courts?

2

Are there any rulings in the next 2 months where this would matter?

Also congress would have to pass a law for this.

3

Correct, Congress controls how many justices there are. From the SCOTUS FAQ:

The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.

4

It sounds as though you’re saying that if Biden made four nominations for Justices and the currently-Democratic Senate passed, them, then…they’d only be Justices until Trump gets in?

How do you figure?

And what law? The number of Justices is NOT fixed, either in the Constitution or by law. (It’s true that an 1869 law which INCREASED the number of Justices, said ‘there are now nine.’ That’s not the same thing as saying ‘the number is nine forever’ or anything like it.)

5

There you go.

6

Trump would just add more.

7

Exactly. The president can’t increase the size of the court, it requires an act on Congress, which means both houses. That would never pass the House nor get past the filibuster. The only time in recent history where this might have been possible was the brief period during Obama’s first term where the Dems had a 60-40 senate majority. At the time there were bigger issues like the Affordable Care Act.

8

The ignorance of people about how their own government works never ceases to astound me. No wonder we’re in this situation now.

9

It has to be approved, and if Bdien does it, what is stopping trump from also doing it? that way lies madness- each president adding more and more justices.

Right.

10

It sounds as though you’re saying that once Trump gets in he would just accept that the Court is now 6 conservatives and 7 liberals. Spoiler alert, he would not.

If Biden were somehow able to expand the Court with the cooperation of the D-controlled Senate, then Trump could expand the Court even more with the cooperation of the R-controlled Senate in January.

Your plan all but guarantees lifetime appointments for Justice Pirro, Justice Habba, Justice Kid Rock, etc.

11

Joe Biden can’t and shouldn’t reconcile the number of Justices with the number of of Circuit Courts. It’s fair to say that this would be a dereliction of his duty.

FIFY

12

If Biden were able to add four, it would reconcile the number of Justices with the number of Courts of Appeals.

Trump would have no such justification. IF the GOP Congress still contained any members interested in appearing independent, he wouldn’t succeed. However, that’s a big “if”.

13

so what, that hasn’t been a justification for changing the number of justices for 150 years…all of a sudden it needs to be done? And in fact, it is Biden’s duty to do so? Only he doesn’t have the power to do it…so now what?

14

As I said above, that is a possibility. However, Trump–and any Congressional enablers–would lack the legitimizing factor of history. (That is, in US history, changing the number of Justices to match the number of Circuit Courts has happened several times.)

As I said in the other post, there might not be enough GOP Congresspeople left who are interested in saying “no” to Trump.

Yes, but my thesis here is that it’s Biden’s duty to TRY. Because he would have historical precedent on his side. He would be asking for something to happen that’s happened several times already, and that has a clear justification.

The argument ‘well Trump will just ignore all historical precedent and do whatever he wants’ is irrefutable, of course. But I’m just talking about what BIDEN should do. He’d be acting in good faith to uphold established standards.

He should do it. (But he won’t, because he doesn’t like to make waves–a character flaw. Not one that comes within a trillionth-part of Trump’s total of character flaws, but a character flaw nonetheless.)

15

He shouldn’t waste the little time he has tilting at windmills.

16

He cannot.

17

Then isn’t your beef with Congress to get them to add 4 Justices? Biden can’t do anything unless Congress adds more seats to the Supreme Court.

18

What do you think he’s doing with his time? (Not being snarky–I’m not seeing hard news on this and wondered if you had.)

Not alone, but as I’ve said, I believe it’s his duty to raise this in a public way. Congress certainly won’t.

Article II, Section 2, Clause 2, U.S. Constitution:

“He” being the President, of course.

There’s nothing in the Constitution about “He shall keep his damned mouth shut until Congress acts.” Not even “He shall know his place and wait until Congress acts.”

There’s also nothing in Article I about Congress being the decision-maker as to the number of Justices. We’ve been doing it that way, but it’s not in the Constitution. Only the “advice and consent” to what the President initiates. Constitutionally, Congress does NOT decide:

With apologies to Python.

19

Why would the number of justices need to match the number of appeals courts? Justices have not had to ride the circuits since 1911. The whole purpose of the appeals courts was to eliminate circuit riding.

20

There is no conceivable future where Biden does this and the other side doesn’t respond with the end result being worse than things right now. Biden does not have a duty to set that process in motion. In fact, his duty is to not set a process motion that makes a bad situation worse.

Even trying and failing would make things worse. If Biden spends the next couple of months trying to convince the nation that there should be 13 Justices but he doesn’t seal the deal, it gives the other side permission to pick up that ball and run with it.

There are 7 weeks until the Republicans take control of the Senate.