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September 18, 2020

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I can see cleek's argument about the downside of stacking the court, but at the moment, and given McConnell's (and Graham's et al) barefaced shamelessness and corruption, I can't see any alternative. I am starting (quite contrary to my normal view) to agree with those who say that unless the Dems threaten to play hardball, and then do so, the Rs will go on as they have been, only more and more outrageously. Very soon, there would be no way for the majority of the population ever to see their political choices elected, or their preferred policies enacted. As Pro Bono said, it would be impossible to regard this as democracy.

I just lost a comment. Shorter me: I used to worry about the adviseability of stacking the court, but can now see no alternative. McConnell's (and Graham's et al) barefaced shamelessness (and corruption) mean that the Dems must bite the bullet, threaten, and if necessary act. Otherwise, and it wouldn't take long, there would be no way (what with gerrymandering further legitimised by a 6:3 court) for the majority of the population to ever see their preferred politicians elected, or their preferred policies enacted in their country. As Pro Bono says, you could not then claim to be a democracy.

I'm wondering how it's not destroying the Court to ...

the primary problem there is with the Senate, McConnell specifically.

the nomination process pre-Garland wasn't ideal. but it was at least reasonable - a President could be expected get his nominees through. now that's gone thanks to McConnell.

permanently changing the nature of the Court in order to (temporarily) undo what McConnell has wrought is an entirely different thing.

What GftNC said.

Hey, somebody with the keys, I just lost two comments! I'd be very grateful if someone could rescue the second.

Sorry, didn't realise we'd gone onto a new page!

I used to worry about the adviseability of stacking the court, but can now see no alternative.

this really feels like a "We must do something! This is something!" moment.

the cure would be at least at bad as the disease.

yes, Dems would feel good for a few years. but that would turn to anguish the second the GOP wins the WH and Congress - and that could be sooner than hoped-for. court packing would create backlash.

cleek, I really get what you are saying, and was of your mind until this. But what do you think is the alternative, given a 6:3 court, and the possible destruction of the ACA, overturning of Roe v Wade, solidification of gerrymandering etc? Quite apart from the fact that all of this would be contrary to the will of the majority of the American people, how do you suppose future elections would go?

permanently changing the nature of the Court in order to (temporarily) undo what McConnell has wrought is an entirely different thing.

If Democrats (by some crazy luck) ever have a majority on the Court, you'd better believe that Republicans will stack it. Ever since Republicans went full-on crazytown, they have had a majority on the Supreme Court, although it's been close, with some occasional moderate defectors. Soon, there will be an ideological lock. And, yes, there were some pleasant surprises with the Trump tax case, and a couple of other matters, even with Gorsuch and Kavanaugh. But itt seems more cynical (to me) to wait to see whether that continues than to stand on principle regarding the Garland/Ginsberg replacement.

If they hold off on the Ginsberg replacement, I don't think the number should be increased. If they replace her, it should. If I didn't strongly believe that Republicans are out of the barn with norm-busting, I would hold your view, cleek. But we have no way to be legitimately represented again with Republicans disposed to power at all costs.

But what do you think is the alternative, given a 6:3 court, and the possible destruction of the ACA, overturning of Roe v Wade, solidification of gerrymandering etc?

i don't know what the alternative is. but again, just because this is something that can be done doesn't make it a prudent thing, or a good thing, to do.

it feels like revenge, not a way to get a better country.

--

If Democrats (by some crazy luck) ever have a majority on the Court, you'd better believe that Republicans will stack it.

maybe. but the Dems are talking about doing it right now (well, the Dem base is, actual politicians aren't so much). the GOP isn't.

and nobody has come close to convincing me it's not going to play out the way i described. exchanging a disaster that the GOP made for one the Dems made doesn't sound like a good plan to me.

If they hold off on the Ginsberg replacement, I don't think the number should be increased. If they replace her, it should. If I didn't strongly believe that Republicans are out of the barn with norm-busting, I would hold your view, cleek. But we have no way to be legitimately represented again with Republicans disposed to power at all costs.

What sapient said. Of course, it's bitter to have e.g. Kavanaugh on the SCOTUS, and no Merrick Garland, but even so.

The court-packing idea has been discussed endlessly at Balloon-Juice. I'm not going to try to reconstruct all the facets -- it's many-tentacled and complex.

Here's David Anderson:

We need to inflict massive political pain for an act that will produce minimum Republican gains. This has to be done in a two step. The first is any Republican Senator who is not on the list should not be targeted for the next week or more. I would love to see McConnell or Coryn lose re-election, but that is extremely unlikely to actually happen so another million or five to those Senate races is a non-strategic use of resources. Senators in marginal Republican seats need to know in their bones that if they vote to confirm a reactionary, they are trading their Senate seat for a short term and transient advantage on the Supreme Court.

The second is we need to pressure Democratic Senators to make a very clear and credible commitment. If there is a reactionary Republican confirmed with 51 votes in 2020, the Senate in 2021, contingent on a Democratic Trifecta, will soon be both a 53 vote body and will be confirming at least four new, young, liberal justices. Four is the appropriate number. Two justices would be used to restore the status quo ante of pre-Garland. Two more would be a meaningful cost on norm violation.

Yes, there are two outcomes to this action. The first is that by 2031, the Supreme Court will be a 999 seat body. The other is an escalation off-ramp of a constitutional amendment to have fixed SCOTUS terms with scheduled replacement tied with strong agreement enforcement mechanisms to discourage/disallow blockades.

I'm not endorsing this particular thought train, or any other with this comment, just pointing out that thoughtful people are proposing courses of action with much more complexity than just "We must do something! This is something!"

We must, in fact, do something, or, as russell said @3:58, we will lose our democracy. Hence: There is going to be payback. Not dumb-ass right-wing "we're gonna shoot you all" payback, but legal, Constitutionally sound, legitimate payback. The means of thwarting the wishes of *most people in this country* will be taken away from the (R)'s.

it feels like revenge

I understand the feeling, but it wouldn't be revenge. It would be the only way to try to restore some fairness to the system, which has been remorselessly gamed with a complete lack of integrity. russell has a good post on another thread with quotations from the Federalist Papers concerning the will of the majority being held hostage by the minority. It is impossible for that to continue for any length of time, and for democracy to continue.

There are a lot of things at stake here. Not only the ACA, women's reproductive rights, voting rights. Social Security, and the entire infrastructure ("the administrative state") is opposed by some of these people. The situation is dire.

And I see from BJ that ActBlue reports $100 million has been raised since Friday night. This is extremely cheering.

Here's a solution: Trump could nominate Garland.

Think that'll happen?

I'd trade court packing for non-lifetime tenure - 20 years, say? - but that would require an Amendment. So no dice, most likely.

What we have now is unacceptable.

I am starting (quite contrary to my normal view) to agree with those who say that unless the Dems threaten to play hardball, and then do so, the Rs will go on as they have been, only more and more outrageously.

In short, they have embraced (if they hadn't already) the Trump approach of, if I didn't actually get punished, personally and severely, for something, then I'm free to keep doing it. See Trump's post impeachment behavior.

Among civilized adults, this kind of grammer school tit for tat is generally avoided. But that's not what we're dealing with. Even beyond Trump, who everyone including his own staff agrees is neither adult nor civilized.

Doing something may feel like revenge. It may even be revenge. But sometimes it takes a 2x4 up side the head to communicate the point that a particular behavior won't be tolerated.

Norms once broken cannot be unilaterally restored. So if Republicans firmly establish “anything that is not strictly forbidden by the Constitution is permitted” as the de facto norm of governance, Democrats should act in kind should they win in November. This will not be an easy path for the clearly norm-loving Democratic establishment to follow, but constitutional hardball is a much better alternative for the people they represent than the Supreme Court being under the decades-long control of a political faction that has given up even trying to appeal to the majority of the American people.

And please, don't count on persuading so-called independents. That does not appear to be how it works.

why the GOP wouldn't then do the exact same thing as soon as they get a chance

They do it in any event, don't you understand this? They are doing it now. Putting somebody like Amy Barrett on the SC is just gilding the lily.

Even if, you-know-who willing, the GOP is "ground to dust" this November, is your corrective to simply work for 50 years to replace the reactionaries in the federal courts as they slowly die off and let them effectively blunt all progressive policies in the meantime?

This strikes me as politically untenable, and might well lead to even worse outcomes.

The arguments against several of the Democrats' possible courses of action seem to come down to this:
Don't do this because, if you do, the Republicans will do the same back, next time they can.

The trouble with that argument is, in several cases, the Republicans already have. And there's no indications that they would behave better next time, if only the Democrats exercise restraint now.

The court-packing idea has been discussed endlessly at Balloon-Juice.

and elsewhere. and i remain unconvinced.

We need to inflict massive political pain

revenge is not a good plan for a stable well-functioning government.

The other is an escalation off-ramp of a constitutional amendment

because the side winning a tit-for-tat battle will voluntarily back down? you're voting for the woman who says "maybe we should let the GOP have a say!"

thoughtful people are proposing courses of action with much more complexity than just "We must do something! This is something!"

there's nothing there that's any more thoughtful that what's been said here. and i've seen nothing better anywhere else. the arguments for are "revenge!" and "we must act!". they fall short.

i realize i'm in the minority here.

but, i'm on record.

The trouble with that argument is, in several cases, the Republicans already have. And there's no indications that they would behave better next time, if only the Democrats exercise restraint now.

the GOP hasn't increased the size of the Court for partisan gain. but they will, if the Dems do. it's a certainty. and then it's a ratchet.

They do it in any event, don't you understand this? They are doing it now.

for fuck's sake, they. are. not.

they have not altered the structure of the Court. they have abused Senate norms to put their people on the Court. you're advocating changing the nature of the Court. the GOP hasn't done that, yet.

it feels like revenge, not a way to get a better country.

First of all, talking ain't doing. The fact that people are talking about increasing the number of SCOTUS justices is several miles away from actually making it happen.

Second of all, it's not revenge. Should it happen, it's a response to blatant provocation. If you don't respond, forcefully, to a bully when it pisses on your shoes, it will keep pissing on your shoes. Forever. Until you fight back.

Yeah, it's "just McConnell". But the entire (R) party has chosen to line up behind McConnell. So actually it's not "just McConnell".

i don't know what the alternative is.

Yeah, me either.

There have, at various points, been 5, or 6, or 7, or 9, or 10 SCOTUS justices. SCOTUS justices used to also be circuit court justices; they would spend part of their time sitting on circuit courts, and part of their time on the SCOTUS.

We've had 9 SCOTUS justice since 1869, and they haven't done double duty on the circuit court since 1891.

So, things were kind of fluid for about 100 years, and they've been stable for about 150. All things being equal, in the realm of governance stable is nicer than fluid, but it's not an iron law.

If the (D)'s somehow gain the opportunity to increase the number of justices, and decide to do so, it won't be the end of the world. They could just as easily decide to decrease the number of justices to 7, and dethrone Gorsuch and Kavanaugh.

Would that be suitable?

None of that would be any more or less outrageous than telling the most popular POTUS in the last 30 years that his nominee for SCOTUS would not even be brought to the Senate floor for a vote.

Trump could nominate a moderate. He will not do so. McConnell could, out of respect for Ginsburg's last wishes and from a basic sense of fairness, decline to bring whoever Trump nominates to a vote until and unless Trump prevails in November. The (R) party as a body could, out of a basic sense of fairness, decline to bring any nominee to a vote until the election has been decided.

None of those people will do any of those things.

So I don't see the (D)'s as being under any obligation to bow to tradition here.

IMO bumping up the number of justices would be disruptive. And I'm not sure that is unwarranted at this point.

Trump and/or the (R)'s can head this off anytime they like. Decline to nominate someone until after the election, or nominate an obvious moderate.

Problem solved.

Why the f*** is it always the (D)'s job to be the bigger person? At what point is it legitimate for the rest of us to say we're tired of being punked?

[you're advocating a changing the rules of the game.

there was supposed to be a "?" at the end]

It would be the only way to try to restore some fairness to the system,

sorry, but no.

fairness would be a scheme that removes the partisan inputs, or limits the chance for partisan outcomes. fairness isn't changing the rules so that one side gets to say what's law and what isn't until the point where it loses all three branches of government, whereupon the other side gets to run roughshod.

2032, the GOP gets all branches installs 875 Justices, lines up the cases, and BOOM - every fucking liberal law and regulation and rule is gone. utterly gone.

until the Dems get control again.

what kind of climate is that for anything? we'd be a goddamned banana republic.

it's just so fucking stupid. i can't believe you all are falling for this.

Alternative #2:

If Trump and McConnell push somebody through, bump the number of justices to 11.

The nominally conservative side of the court retains their majority. They just have to actually work for their wins.

How's that? Fair enough?

The fear here seems to be that if the (D)'s increase the number of justices, it will spark some kind of SCOTUS arms race. Every time one party holds both the WH and the Senate, they will add more justices to the SCOTUS.

I guess that could happen, but it would devolve into farce pretty quickly.

If the nation will abide a farce, then I guess we might get a farce.

Trump and the (R)'s can head this problem off in a NY minute. Decline to nominate somebody, or nominate a moderate.

Problem solved.

Speaking for myself, I'm sick of playing Charlie Brown holding the football for Lucy.

If fairness doesn't go 2 ways, it's not fairness.

fairness isn't changing the rules

The rule is that Congress decides how many SCOTUS justices there are. Article III, section 1.

That is the rule in question.

People talk about this stuff like every detail of governance is set in stone. It's not, and quite a number of things that are "set in stone" are so as a matter of precedent and practice, not law.

If we want 10,000 SCOTUS justices, we can have 10,000 SCOTUS justices. It would be absurd, but it's not illegitimate.

Nothing magic about 9.

The issue here is whether some action by the (D)'s to impose a "liberal" majority on the SCOTUS would create outcomes that we don't want.

That's a reasonable question. But that's the question.

So don't impose a "liberal" majority. Raise the number to 11. Make the conservatives work for their wins.

Or drop the number to 7. Last two go home, and we end up with 4 conservative and 3 liberal.

Why do any of this? Because the (R)'s are not, in any way whatsoever, respecting the fact that they represent a minority of the population, and are seizing every opportunity to grab and hold power that they do not deserve.

So fucking fight back. Not talk, but actions. Actions that matter.

Enough of this shit.

My solution to all of this bullshit:

Trump nominates Garland.

Problem solved.

Let the f'ing (R)'s step up for once.

Second of all, it's not revenge. Should it happen, it's a response to blatant provocation.

there's a fuckton of revenge in this impulse. advocates everywhere make it clear. even here.

Yeah, it's "just McConnell". But the entire (R) party has chosen to line up behind McConnell. So actually it's not "just McConnell".

i'm not sure i said it was "just McConnell". citation?

So I don't see the (D)'s as being under any obligation to bow to tradition here.

i'm not sure i said anything about that, either.

i'm saying packing as defined by lefty yakkers => blowing up the Court as an institution. and no, i don't think it's blown up right now. the GOP has abused the process by which people get to the Court and have thereby rigged the expected outcomes. but the Court itself is going to function as it should. packing would be damage to the Court itself.

no, i don't have a better proposal. but that doesn't make packing a good one.

you know, maybe it's not an actual Constitutional crisis. maybe the Dems just fucking lost.

elections. consequences. do better next time.

If we want 10,000 SCOTUS justices, we can have 10,000 SCOTUS justices. It would be absurd, but it's not illegitimate.

right. also, totally unworkable. and terrible.

not illegal != good.

we've been over this before.

I was going to suggest the thought experiement of Garland being nominated, which would then have the Dems retreat to their usual refusal to confront Republican bad faith, but the Republicans, as we can see from Marty's sally here, have guzzled the kool-aid and can't imagine a situation where they take a step back.

Ironically, they are adopting a 'heighten the contradictions' approach that seems positively Leninist. If they win, they win, if they lose, they can have people like Marty believe that it is Democrats that are behaving in bad faith. If they get their nominee (and I think they will, I don't think there are enough levers of sufficient strength to stop them), the Dems are going to push for more justices (and elimination of the filibuster and adding PR and DC statehood).

I don't know if it is projection, where they assume that the Democrats would behave in the same bad faith way they are, so they can't give them a chance, or if it is something more existential, where they cannot imagine existing in a country where anyone would disagree with them. So it is the Republicans who want the Dems to behave in this way. They certainly aren't going to give them any options to behave in any other way...

Every time one party holds both the WH and the Senate, they will add more justices to the SCOTUS.

The number of Supreme Court justices is set by law. It therefore requires the agreement of the House (as well as the Senate) to change the number of justices. The Republicans have, in the current environment, a built-in advantage in the makeup of the Senate. (One which adding DC and Puerto Rico would reduce, but not eliminate.**)

But demography gives the Democrats a similar advantage in the House. Neither is insuperable; both are real. So while a back and forth escalation is possible, it may not be quite so rapid as you expect.

** I wonder if the increased feasibility of remote work might not lead to a drastic change in state demographics. Consider the way it has already changed politics around the cities in red states. Might it not have a similar impact on those states overall? If I'm a computer guy, I can work from Wyoming as easily as from Silicon Valley. And my salary will go much, much further. "Rural" may not always mean, politically, what it does today.

but they will, if the Dems do.

They might anyway.

the GOP hasn't done that, yet.

They haven't had to, or they would have. They have had a majority for many years. It hasn't been a lock, but it's been a fairly reliable conservative majority.

They have ignored many norms, including the "blue slip." They've ignored ABA assessment of qualification. They've done with judicial appointments what Trump has done with the Executive branch. I wouldn't be surprised if they're getting paid, honestly. Look at the very questionable Kavanaugh issues (and I'm not talking about Blasie-Ford).

This has ALREADY changed the nature of the entire judiciary. If Republicans played by any rules at all, I wouldn't be in favor of doing this. I'm the most conservative institutionalist on this blog, probably. But the courts are powerful, and the Republicans are good at cheating in elections. It's extremely possible that all of this discussion is bs because they're going to cheat their way to victory this November. I have no doubt that some states will.

It's just not sustainable for the reasonable people in this country (who seem to disagree on a lot within their ranks) to have to overwhelm the polls in such huge numbers to overcome the cheating, as well as the flaws in our system such as the electoral college. If we don't figure out a way to be represented, there's going to be a war, and that's certainly not what we want.

I am all for coming up for some other way: convince Republicans to be decent, or fight back within Constitutional parameters. If you really disagree with this, cleek, tell us how to avoid a court that dismantles the administrative state, including Social Security, Medicare, all of it. We'll truly go back to the Victorian era. That's what they want, and they will make it happen.

They'll change the nature of things alright.

Ironically, they are adopting a 'heighten the contradictions' approach that seems positively Leninist.

I noticed, decades ago, the remarkable number of individuals who moved from far left politics to far right politics, without ever spending an instant in between. (It seems there are those whose politics simply must be extremist. But what kind of extremist doesn't much matter to them.) That might well give them some pre-established Leninist reflexes.

I see by rereading my comment that it isn't clear in paragraphs 1 and 2 who "they" is. There has long been a conservative majority on the Supreme Court. It gave us Bush v. Gore, Citizens United, etc.

My second paragraph is talking about Republican senators who have ignored norms for appointing judges.

If you really disagree with this, cleek, tell us how to avoid a court that dismantles the administrative state, including Social Security, Medicare, all of it.

i don't have that answer. and i don't think you do either. you have a proposal that seems to achieve nothing in the long run.

look, you all should know i don't need to be told that the GOP is bad. i'm aware. and more importantly, that's not the issue. the question is: is the packing proposal good or not? telling me the GOP is bad doesn't answer that question. it works as a lead-in, but it doesn't answer the question.

at least not to me.

[please remember: we're on the same side?]

they have abused Senate norms to put their people on the Court.

We (I hope) have some kind of democracy. Our democracy depends, to a great extent, on mutually agreed to and respected norms, not just "structures". The GOP is trashing them. This is trashing democracy. This is going down a road that will, if unchecked, reduce us to minority rule or worse. How's that for "altering structures"?

We have already endured a lawless Supreme Court that handed the presidency to Bush in 2000. The GOP has won the presidency by clear majority vote only 1 out of the last 8 elections. They have made it clear that if they control the Senate that no Dem President will get a nominee through. EVER. Structure you say? There's some structure for you. With a 6-3 hard core reactionary court, they will blunt and overturn all progressive policies, past, present, future. How's that for "structure"?

I repeat. The new Constitutional rule is this: If it is not expressly forbidden, it is permitted. This new norm flies in the face of our history...the history where the Supremes go along (sometimes grudgingly) with the political majority in place. This is not the first time this kind of battle has taken place.

That's the hand we are being dealt. You have not rebutted Lemieux's argument in any substantive way.

With all due respect. I dissent. Forcefully.

the question is: is the packing proposal good or not?

Actually, I have the impression that it's somewhat different. The actual question seems to be
Will it work
a) in the short term, and
b) in the long run?

Unless you repurpose "good" and "bad" to something like "workable" / "unworkable" ....

I wonder if the increased feasibility of remote work might not lead to a drastic change in state demographics.

What a lot of employers may discover is that, if an employee can work from home, they can also work from India.

The number of supreme court justices is not a "structure". it is a norm, a tradition, a convenience.

Changing that number has been done in the past.

As for characterizing our points as "fucking stupid" I would suggest an apology is in order.

What a lot of employers may discover is that, if an employee can work from home, they can also work from India.

Um, I'm not sure this is news.

On the most obvious level, have you never called a help line, only to get someone with an Indian accent so thick that you can barely understand half the words they say?

I worked mostly from my home in Maine for a company headquartered in Cambridge. I had colleagues who worked mostly from their homes in SF, NZ, Denver.....

elections. consequences. do better next time.

First, this entire discussion assumes the (D)'s "do better next time". Absent that, the topic is moot. The question is, should the (D)'s "do better next time", should they make a substantive response to (R) obstruction of a (D) POTUS's constitutional prerogative to name a SCOTUS justice, in the interest of packing the court with Federalist idealogues?

Is there another way to read the refusal to bring Garland's nomination to a vote?

What you are asking for is that the (D)'s meet obvious provocation with grace.

For the good of the nation.

Would that actually be good for the nation? Why are (D)'s required to "observe the rules" that (R)'s happily ignore?

What a lot of employers may discover is that, if an employee can work from home, they can also work from India.

They discovered that a decade or two ago. More recently, they have been discovering that there are cultural and other issues which limit what kinds of work are fine to do there.

I've watched a couple of companies which had been moving their entire IT departments to India to reduce costs. But discovered that there were problems. Problems which slashed or totally eliminated the expected savings. To the point that they reversed course abruptly.

There has long been a conservative majority on the Supreme Court

We have had a conservative Supreme Court pretty much since Nixon bulldozed and schemed his nominees through after the initial rejection of Haynesworth and Carswell. In the intervening 50 or so years, we have had a a society that is more diverse, and more liberal.

The breaking point may be near, given the mass psychosis on the right. All the talk about "preserving structures" won't mean jack diddly squat under that scenario.

"Elections have consequences. Win them." I remember when Karl Rove said that. LOL.

if an employee can work from home, they can also work from India.

Since we appear to be pursuing this aside:

If I hear someone say "just outsource it to India", then I know I'm dealing with an idiot.

Not because there is anything wrong with Indian engineers, because there isn't.

But because, as wj notes, there are a million cultural and logistical reasons why that may not be a good play.

Work, and workers, are not fungible. Management by spreadsheet is not management, it's laziness.

Over and out.

I hope this is not out of line, but I'll psycho analyze cleek a bit here because I think it is a shared trait. What cleek (and a lot of others want to do) is that they want to be good people. They want to acknowledge the other side, they want to live in a world where there is give and take. I get that, and I'm usually there. But, when I thought experiment out Trump nominating Garland, I think it's never going to happen. I can think of 100 ways where Trump and the Republicans could take a step back. And everytime I think of one, I think 'nah, never happen'. Given the way things are, there is no long term. When someone is coming at you with a knife, you don't think about what you will do after you have disarmed them.

Everyone will have their breaking point, the point where it is no longer acceptable. Unfortunately, because this all happens at different points, a whole industry has emerged to heighten the noise from that and use it to either have people just say fuck it or to increasingly tear into each other. It may be because their model profits from that noise (Facebook, Twitter), it may be that they think that they can move with the crowd, or it may be that they truely believe it. Tom Cotton, esrtwhile Trump nominee for SC who got squeezed out cause he's a guy, just tweeted about how the Democrats are encouraging riots
https://twitter.com/tomcottonar/status/1267618312399306753?lang=en

Maybe he's just mad that he got beaten out by a woman. But when there is such a refusal to acknowledge reality, I'm thinking that the Dems do what is necessary for the short term and figure out later how to fix that.

So I think the vehemence that cleek and others express is related to the effort that folks are making to hold on to their humanity. I'm not going to get angry at them for that, cause that could be me.

That's all good, but it assumes that there us something inhumane about, for example, increasing the the number if SCOTUS seats.

I don't know if it's wise or not. If you're against it, make your case.

But it's not about being a "good person" or not.

the question is: is the packing proposal good or not?

Yes, it is good politics. Because a democracy ruled in the interests of an unaccountable minority blatantly opposed to the desires of the majority cannot stand.

Russell, if you are asking me, I’m not, I think it is inevitable. Biden might, holding on to the chimera of bipartisanship, not push it, but it won’t be him that decides.

I’m just trying to understand the vehemence of the arguments. Which I think are only going to become more so for the foreseeable future.

I’m not=I’m not against it

I’m just trying to understand the vehemence of the arguments. Which I think are only going to become more so for the foreseeable future.

I'm going to psychoanalyze others here. So feel free to delete this if it's out of line.

I think the vehemence stems from a desperate desire to believe that it is still possible to address the situation as between civilized human beings. A desperation made worse by the wealth of evidence that one side not only isn't civilized, but glories in rejecting it.

It's not barbarism so much as a variety of nihilism -- my way or the apocalypse. Sadly, it isn't possible to negotiate a mutually beneficial compromise with someone of that mindset. Even if the existance of such a mutually beneficial option, and even its broad outlines, are obvious.

I don't have a strong opinion either way on stacking the SCOTUS. It's the kind of thing that makes my head hurt, because I'm just not good at thinking about it. But one piece of the logic is bothering me.

If packing the court is bad because the Rs will only pack it further if/when they gain control, even though the Rs are now a ruling minority because they've managed to put a thumb on the scale in various ways, what the hell does it matter? Can you take the thumb off the scale without a non-hostile SCOTUS?

Can you undo enough of the anti-democratic mechanisms that are already in place to prevent an undemocratic reinstatement of Republican control with an unbalanced or unrepresentative court? (Presumably, if the nation prefers Rs to be in office to the point that they can win fair elections, that's not the problem to be solved. The lack of democratic fairness is the problem, right?)

I do not doubt that changing the way the SC works will have a political cost. What keeps me from taking up cleeks position on this is that I have lost faith in the likelihood of avoiding further breakdown whether or not the Democrats change the rules.

Lifetime appointments and small numbers of justices create too big a lever that is too easily abused. Take that lever away, but do it in such a way that no one has a thirty year backstop on change. No one should have that.

More justices. Limited terms. Stagger the retirements to make the transitions smooth.

[please remember: we're on the same side?]

Absolutely, cleek. I just won't accept any more ruin without using every legal means to say "enough". And even with that, if they gave an inch - if they seated Garland, or if they even followed their own rules - I would relent.

But it may not be a discussion if they steal the election again.

This puts it fairly well.
https://slate.com/news-and-politics/2020/09/ruth-bader-ginsburg-death-mitch-mcconnell.html?via=taps_top
... I think we have a habit of misnaming political experiences in ways that help us metabolize loss. I think, for example, that we have a bad habit of calling McConnell’s double standard—which will be devastating to a country already struggling through various legitimacy crises—“hypocrisy.” And sure, step onto Twitter after Lindsey Graham also unabashedly went back on his own word and you’ll see many a person rolling their eyes at anyone pointing out that Republicans are hypocrites, as if it matters. One can sympathize with the eye-rollers—of course hypocrisy doesn’t matter. But that’s mostly because hypocrisy isn’t the word for what this is. Hypocrisy is a mild failing. It applies to parents smoking when they advise their kids not to for their own good; it does not apply to parents lighting the family home on fire for the insurance money while high-fiving each other over how stupid their fleeing children were for thinking anything they told them was true...

Why are (D)'s required to "observe the rules" that (R)'s happily ignore?

For. The. Good. Of. The. Nation.

For. The. Good. Of. The. Nation.

This is where we disagree. The good of the nation doesn't rest on the Supreme Court having 9 justices, when the number is set by law. Scott Lemieux is on fire in this post, and so are the commenters.

Democrats have done every possible thing, by the book, to rein in these criminals (and they are criminals, unlike the Democrats who they lie about). We still have some ammunition left in the law, and using it is for the good of the country. Will we have a chance to do it? Only if we win. Will it work? Only if we keep winning.

[please remember: we're on the same side?]

Never forgotten for an instant. And cleek, I hope you know that your general attitude and opinion about this (loosely speaking: inadvisability of revenge and short-term advantage and to hell with what follows, becoming as bad as our enemies, etc etc) is very close indeed to what has always been mine as well.

But I think you are assuming that even with a 6:3 court, and gerrymandering, and the lower courts stacked with unfit judges (per the American Bar Association) there would still be ways for the majority to overcome. The difference between us is that people arguing (in many cases reluctantly) for this momentous step, see the likelihood of anything returning to what you would consider a roughly democratic business-as-usual (whatever that is) to be vanishingly small. The damage you fear is already being done, and will be consolidated unless this kind of step is taken. Unthinkably ridiculous things have already happened (Citizens United?) because of the bias of the court. Do you think any contested election a la Bush v Gore, or gerrymandering case, or environmental protections, or abortion protection, or Social Security and Medicaid, would be safe under a 6.3 court where some at least (maybe not Gorsuch, but for sure Kavanaugh and almost certainly Ginsburg's replacement) would doggedly vote the R line? If this is not threatened, and then done if necessary (and we all hope it wouldn't be, and that threats would be sufficient), do you think the party of Trump and McConnell would magically start acting fairly and reasonably and start considering the rights of the individual citizen, as opposed to the desires and financial advantage of their patrons?

Nigel: good point on the "hypocrisy" issue.

Good of the nation? How about the land itself?

President Donald Trump said he is “counting on the federal court system” to ensure that the winner of the November presidential election is called just hours after the polls close, despite current rules across the country allowing ballots to be counted several days to weeks after the election.

“Now we’re counting on the federal court system to make it so that we can actually have an evening where we know who wins. Not where the votes are going to be counted a week later or two weeks later,” he said at a rally in North Carolina Saturday.

How convenient. According to Pew Research, Trump has appointed nearly a quarter of all active federal judges.

https://www.pewresearch.org/fact-tank/2020/07/15/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/

Don't know if this will convince but lgm has this

https://www.lawyersgunsmoneyblog.com/2020/09/norms-for-thee-not-for-me

Norms once broken cannot be unilaterally restored. So if Republicans firmly establish “anything that is not strictly forbidden by the Constitution is permitted” as the de facto norm of governance, Democrats should act in kind should they win in November. This will not be an easy path for the clearly norm-loving Democratic establishment to follow, but constitutional hardball is a much better alternative for the people they represent than the Supreme Court being under the decades-long control of a political faction that has given up even trying to appeal to the majority of the American people.

President Donald Trump described open federal judgeships as “golden nuggets” and said in interviews with journalist Bob Woodward that he expects to have appointed more than half of U.S. judges by the time he leaves office.

But I think you are assuming that even with a 6:3 court, and gerrymandering, and the lower courts stacked with unfit judges (per the American Bar Association) there would still be ways for the majority to overcome.

nope. losing the Court hurts.

do you think the party of Trump and McConnell would magically start acting fairly and reasonably and start considering the rights of the individual citizen, as opposed to the desires and financial advantage of their patrons?

nope. not a chance.

don't vote for Republicans. they're bad. they cause shit like this.

--

Will we have a chance to do it? Only if we win. Will it work? Only if we keep winning.

and since you can't count on that...?

--

again, i don't have a feasible solution. like nous, i think some reworking of how the Court functions would help a lot. and i think changing the Senate's role in approving Justices would help, too. but most of that requires Amendments, so it's not going to happen.

packing? meh. maybe, by the time more than single-digits of Dem Congresspeople support it, somebody will make the case for it in a way that grabs me.

Don't know if this will convince but lgm has this

that falls into the "We must do something! This is something!" bin, for me.

and since you can't count on that...?

We can't count on anything. Even buying some time might be better than destroying it all now.

don't vote for Republicans. they're bad. they cause shit like this.

Spoken under circumstances where your vote still has a chance of being at all consequential.

For. The. Good. Of. The. Nation.

Assumes the status quo is good for the nation.

I do take your point here, but I also think a response is needed. That's not revenge, it's defining a boundary.

If there's a better idea, fine with me.

Ultimately the most tangible price will be if this costs (R) elections. So we'll see what happens.

But the status quo is not good for the nation. On the contrary, it's destroying the nation.

i'm definitely not advocating for the status quo. shit's broke and the GOP broke it.

i just don't think packing is the right fix.

i can imagine what i think are better fixes, but they face insurmountable legal hurdles (Amendments, etc.).

so, i don't know what to do. doesn't mean i like it.

But the status quo is not good for the nation. On the contrary, it's destroying the nation.

Yes. We need STRUCTURAL reform.

I may be just another "lefty yakker", but I should think this to be self-evident.

"If you really disagree with this, cleek, tell us how to avoid a court that dismantles the administrative state, including Social Security, Medicare, all of it."

When I read this it sounds like the kind of baseless fear that many on the right exhibit, in fact, that I have been accused of. It assumes bad faith from the appointed Justices mkre than the appointees. As has been pointed out there has been a conservative tilted court for decades yet Roe v Wade and gay marriage, gay and trans protections, women's rights, SS and Medicare all still exist.

Even the EPA exists with some limitations.

If there is s place that has ceded its responsibility to protect freedoms it is Congress, not the courts. The greatest real fear is that the left will have a harder time trying to legislate the more radical elements of its agenda through the courts.

For several decades the left has been able to flood the courts and find sympathetic judges at the federal district Court level for almost any agenda. The biggest fear at this point is that those courts would be more balanced.

As far as hypocrisy goes, both sides, yes in this case both sides equally, stand on purely political grounds. Neither side is acting any differently than if the situation was reversed, trying to couch it in some bigger moral equivalence. If the Democrats had the ability in the Senate to seat three liberal justices over the last 4 years, they would have. And the Republicans would have made all the same arguments against it.

The most purely political move was to not have a vote for Garland, but the outcome on the court would not be different. It was just better politically to not have the hearings and then vote against him. I would have preferred a vote, but the political calculus was understandable. It protected 50+ Senators politically while placing the majority of criticism on the Speaker, who may pay the price for it on Nov 3.

But assuming it would have changed the makeup of the court is problematic, the only way that would have happened is if it had created some backlash that lost the GOP the Senate in 2018. I think that's unlikely.

In the end, appointing Justices is a political process, it has been for my whole life and I suspect longer than that. So accusing either side of politicizing the process seems like a red herring.

i just don't think packing is the right fix.

I guess that depends on your assumptions and analysis of what could reasonably take place under a reactionary Court and possible one party minority rule.

Here's another take.

Even the EPA exists with some limitations.

Most of the changes at the EPA haven't been court-ordered, but rather rewriting of rules by the agency to reflect a very different set of priorities.

This has always been a risk as Congress has, over the last 120 years or so, transferred more and more of its legislating to the executive branch. Yes, the EPA is nominally an independent agency. Nevertheless, we have seen that a change in the Oval Office can result in a reversal of major policies. The Massachusetts v. EPA decision holding that not only can the EPA regulate greenhouse gases but that it must regulate them still holds. It's just that now the EPA is ignoring it and getting away with it.

Here's another take.

the first 4/5ths of that are "the GOP is bad". yes, i know.

then we get to complaints about the prospect of an "anti-democratic" Court. that fails to move me because the Court is already anti-democratic, by design. it's by far the branch most removed from voters (by design): the anti-democratically-elected President appoints unelected judges who are then approved by the anti-democratic Senate to well-insulated jobs for life. and originally, the Senators weren't even democratically elected.

does the Court reflect the will of the people? of course not, and it's not supposed to. is that good? maybe not, given today's polarization.

then more warnings about the evils of conservatism. i get it. that's why i don't recommend voting for Republicans, ever.

that's why i don't recommend voting for Republicans, ever.

But we're not talking about what voters should do. We're talking about what congress should do. (I don't think we need to tell congressional Democrats not to vote for Republicans.)

We're talking about what congress should do.

said it before: i don't know.

--

i think i've beaten this to death.

i'll step away for a bit.

Good piece, bobbyp. But then, I would think that, since it's making my point:

But with a partisan judiciary that is hostile to the franchise itself, court-packing may be the least-worst option. At this point, it may be the only way to prevent permanent rule by an increasingly radicalized GOP.

Of course, it says this after laying out some history, including:

All four of the Republican-appointed justices who sat on the Court in 2016 voted to reinstate the most aggressive voter suppression law in the country—a North Carolina law that, according to a federal appeals court, targeted “African Americans with almost surgical precision.”

Surely cleek's "anti-democratic court by design" is not supposed, at least today, to suppress the vote of African Americans? And I simply cannot understand how recommending not voting for Republicans, ever, can protect your democracy when you have courts ready, willing and able to throw elections to Republicans in every case where they have the option - which is likely to be many cases.

Peace be with you, cleek. There is absolutely no doubt your reservations come from a good and honourable place.

I don't know. I think cleek may be a crypto-Republican concern troll. He's clever.

shit's broke and the GOP broke it.

i just don't think packing is the right fix.

Perhaps it would help if we found another term. "Court packing", after all, originated as a pejorative. Would "court expansion" be less fraught?

Yet another view.

https://jacobinmag.com/2020/09/liberal-supreme-court-rbg-ruth-bader-ginsburg

The writer makes a very startling ( to me) assertion— that a President could simply say that Marbury vs Madison was wrong and the Constitution does not give the SC that power. This is way outside of my field.

But legal merits aside, I sympathize. Even before this, to the extent I gave it much thought ( and I didnt give it much), the SC to me has too much power. I don’t want to overturn Roe v Wade or have states decide abortion— what a nightmare—but in general I sympathize somewhat with the idea that we shouldn’t give so much power to unelected offficials with lifetime appointments. We are trusting them to be wise— well, frequently, they aren’t.

And every Presidential election one of the main factors people are urged to consider is that some fraction of these unelected incredibly powerful people could drop dead and we need to have someone who will appoint the right replacements This seems backwards. Either SC justices should be elected (/which requires an Amendment) or the Court should be weakened one way or another. A SC with 57 Justices and more coming every few years seems like a legislature. That’s one way to do it, but as the writer says, not a very good way. Maybe there aren’t any good ways.

Presidents also have too much power, particularly on war and the Constitution is right on that point. That’s a different topic, but a similar theme.

“ The writer makes a very startling ( to me) assertion— that a President could simply say that Marbury vs Madison was wrong and the Constitution does not give the SC that power.”

Probably shouldn’t let Trump hear that., true or not. Any bit of power he sees lying around he will pocket for himself.

In the end, appointing Justices is a political process, it has been for my whole life and I suspect longer than that. So accusing either side of politicizing the process seems like a red herring.

Actually, it hasn't been. Ginsburg, for example, was confirmed on a 96-3 vote. In fact, until this century, anything like a party line vote was very much the exception. A nominee had to be pretty bad for the vote to even be close.

hsh: LOL. Yup, that would explain it.

In fact, until this century, anything like a party line vote was very much the exception

It is, no doubt, entirely coincidental that the arrival of politicized votes of Supreme Court nominees coincided with McConnell becoming Minority Leader. Entirely coincidental.
/sarcasm

Cleek is right: anything Ds do to make the Supreme Court fairer, Rs when they can will use to cheat.

GftNC is right: democracy in the USA is at stake. Roberts has restrained the R majority on the Court to some extent, but not at all when electoral fairness has been the issue. A 6-3 R Court would mean that ever-increasing R cheating in elections.

We know what happens when a fascist government takes control of the electoral process...

i'm definitely not advocating for the status quo. shit's broke and the GOP broke it.

Maybe. I'd say there is fault to go around, but that is mostly irrelevant to court-packing.

i just don't think packing is the right fix.

i can imagine what i think are better fixes, but they face insurmountable legal hurdles (Amendments, etc.).

so, i don't know what to do. doesn't mean i like it.

Here, we agree (which may cause Cleek to re-evaluate). Sometimes the outcome is just shitty. I find the current bipartisan hypocrisy nauseating. But screwing around with the fundamentals of our system is even worse. It's a Pandora's Box of the worst kind. We live in a democratic republic--not a pure democracy, and there is a big difference--and no one is guaranteed a win. If the basic outlines of how we govern ourselves are under attack, then what is left?

No sane person wants to go down that road and no one's agenda is worth it.

no one is guaranteed a win.

The problem comes when one side puts its thumb on the scale to achieve just that. At what point is the other side justified in taking extraordinary measures to restore the balance? And what measures -- so that the cure is not worse than the disease?

Also, at what point is the only solution to break out a blank sheet and start over?

Those are really the questions we are wrestling with. This Supreme Court opening is just the proximate cause for the heated discussion. The underlying issue was there already.

If the basic outlines of how we govern ourselves are under attack, then what is left?

The basic outlines of how we govern ourselves *are* under attack.

A democratic republic means that there are basic rights that the majority cannot remove or overrule.

A democratic republic does NOT mean that the minority can leverage the institutions of government to impede the will of the majority.

The issue here is not a majority looking to overrun the fundamental rights of a minority. The issue here is minority rule.

Which is not a functional model for a self-governing republic.

wj, It is incredibly interesting that McConnell was the Speaker when Clarence Thomas was confirmed 52-48? Party line votes became popular when Democrats decided to use character assassination as a tool in the confirmation process.

You can review the history, Kagan and Sotomayor were easily confirmed if not unanimously. It is only the conservatives that end up getting party line votes.

I am not sure McConnell caused that.

https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm

Kagan 63-37

Sotomayor 68-31

So not party line, but obviously a lot of Republicans opposed them.

Also, on “ character assassination”, it’s one person’s word against another. I don’t think “ character assassination” is the right term to use whether we are talking about a Democrat or Republican accused of sexual harassment or abuse. Are people supposed to ignore this?

And anyway, while I am not opposed to “ both sides” arguments in general, it requires a really strong stomach to listen to Republicans justify their stance on Garland and what they are doing now. Give an example of Democratic hypocrisy on judges comparable to this.

Btw, both Obama and Biden wanted to govern in a bipartisan fashion. Obama came in clearly wanting to be a unifier. Leftists were often disgusted, particularly on the Grand Bargain idea. And Biden has practically made a fetish of good old fashioned bipartisanship and has gotten in trouble fondly reminiscing about the good old days in the Senate. Republicans? Bipartisan? What a load of malarkey.

It is only the conservatives that end up getting party line votes.

Nope.

It's a mixed bag.

Obama lost that high road the day he said elections have consequences. If it was his goal he had no clue how.

Really, this is all my bollocks.

There is no comparison between the behavior of the (R)'s and (D)'s over the last generation.

Enough of this crap.

wj, It is incredibly interesting that McConnell was the Speaker when Clarence Thomas was confirmed 52-48?

Yes. That is very interesting as McConnell has never served in the House of Representatives and has never been Speaker.

Party line votes became popular when Democrats decided to use character assassination as a tool in the confirmation process.

Abe Fortas

It was clear from the beginning that Kavanaugh was in for a bumpy appointment. There were plenty of conservative justices that could have been appointed without the inherent fuss. Kavanaugh was chosen precisely because the GOP knew that the Democrats would find him unacceptable, and he was put through that confirmation precisely so that he could be seated in a show of power and fulfill Trump and McConnell's dearly held desires to make the Dems look impotent.

And now we get this revisionist narrative that the left started this by resorting to character assassination.

It was all avoidable with a more suitable, less inherently divisive pick. All this bewailing partisanship is belied by actions intended to heighten partisanship. It's bullshit.

cleek is a treasure and I usually agree with him, but not now. The R's are dismantling the US, right now, with malice aforethought.

Today Trump's DOJ declared three major D cities "anarchist zones," because those cities refused to let Barr send his goons in to break heads.

How big a step is it from that to sending federal troops(ICE?) in again - but this time with explicit federal authority to "ensure order"? And how much do you want to bet that will involve a federal, military presence at voting stations?

Please. the Democrats didn't start this war on America. The GOP did.

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