Dragging this out seems like a good way to mobilize the right. There is no fix on this. Ireland just repealed a constitutional amendment so nothing is permanent. Besides pro-forma opposition, Dems need to start paying attention to state and local races, learn to mobilize the base in the mid-terms, Deal with the Electoral College with something like the National Popular Vote, and start moving the Overton window on adjusting upwards the number of judges on the Appeals Courts and the SC.
How did the Republicans "mobilize the base" over the years? Being temperate? As the article notes, some degree of pushback is necessary since doing nothing belies a basic message of Democrats that we need to restrain Trump. This doesn't mean just lash out, but some pushback like senators are doing now, including perhaps some sort of symbolic effort akin to this to make a point -- Republicans did this repeatedly on various things -- could help their long term plans.
Democrats are paying attention to local races.
Republicans violated long term norms including to block the elected President of the United States to have votes on his judicial picks. The net result being Trump being able to have many more slots, including a seat on the Supreme Court. A form of "court packing" that over the years prevented the wishes of the democratically elected.
But, for some, this doesn't matter when it doesn't matter. The problems with the legitimacy of the very election and Trump overall has also been expressed. Trump supporters obviously don't accept this on the merits, but the merits are a lot stronger than the things put forth to make Obama (or Bill Clinton) out to be illegitimate. As far as this goes, the ultimate test will be the ballot box.
Which is good but it needs to be sustained which up to now it hasn't. The only cure for gerrymandering and the Electoral College will require continuous effort for quite a while.
"As I said elsewhere, Democrats are already thinking about packing the Court when they're next in power."
McConnell brought a knife, Dems need to bring a gun. The results of his preventing court appointments needs to be so painful that no one goes there again.
Just a thought: If (as is likely) Trump's treason (yeh, yeh but at this point given what we already know...) winds up at the SC at some point and Garland and X don't recuse themselves, would that be grounds for impeachment should the numbers in the Congress allow at some point in the near future?
The thing about impeachment that many seem to ignore is that a 2/3ds vote in the Senate is required to remove. Absent something really more extraordinary than anything currently in sight, that ain't gonna happen.
Resistance now in suitable part can help the future, including big changes, so it is not this or that really. Dealing with gerrymandering and other things? Still important.
Impeachment even with small majorities won't mean removal of Trump though if Democrats do gain control and things change somewhat, who is to know what 2019-20 brings. Right to be pessimistic surely. Control of the House will allow more pressure and investigation & impeachment there is more of a principle. Trump can do wrong, he can be investigated as could others.
Many figured the Republicans overreached with impeachment of Clinton, but that was a mixed bag long term. This arguably included support of "no drama" Bush, some guy you can have a drink with (and not worry about your daughter, I guess), or something. Anyway, people talk about impeachment, including how Democrats should even think of that sort of thing (as Chris Hayes says, Dems are told to be civilized, don't go too far, but Republicans didn't seem to be need to worry about that much), but it's not really what we should be worrying about now except not to somehow totally take such things "off the table."
If the Democrats can retake the House, they will use their various investigative powers to expose the wrongdoing rising from within the Trump administration. It's possible that the smell may become so intense that Republicans in the Senate cannot simply continue to hold their noses if an impeachment-generated trial is before them.
The Mueller investigation might have an amplifying effect.
So I would not rule out the possibility of a Senate conviction on the basis of a Republican majority or even a large plurality in the Senate. But time is the main obstacle; unless Trump wins again, in 2020.
"If the Democrats can retake the House, they will use their various investigative powers to expose the wrongdoing rising from within the Trump administration."
Mind, you're assuming there's (more than average) wrongdoing to expose.
"Well, as a practical matter McConnell packed it, so why shouldn't the Democrats?"
No, as a practical matter all the Senate did under McConnell was refuse to approve of Obama's nominee. Something they're perfectly entitled to do.
If Democrats retake the Senate this fall, and Ginsberg retires, it would be perfectly legitimate for Democrats to refuse to act on Trump's nominee in the hope of the next President nominating somebody they like better.
Packing is enlarging the Court all at once to add enough seats to guarantee you have a majority on the Court after the new seats are filled, without any need to wait on a retirement. McConnell has NOT attempted this, not even suggested it.
FDR, historically, wanted this, but his own party would not cooperate. I doubt Republicans would cooperate if Trump proposed it.
The thing about court packing, is that if anybody does finally do it, they will know that it will be done again the moment the opposing party takes control. So the temptation will be very strong to take some additional action to render elections no longer competative.
Court packing would ring the bell on the final round of American democracy, we'd be fighting for all the stakes after that happened. It would be really ugly.
The last day Dem appointees constituted a majority on the Court was May 14, 1969. I think the Republic will continue to stand if it happens again. It probably won't in the alternative scenario.
Not that Brett likely cares, but all the federal courts could use extra judges, including especially the Supremes. A "Speedy Access to Justice Act" would be good policy.
No, as a practical matter all the Senate did under McConnell was refuse to approve of Obama's nominee. Something they're perfectly entitled to do.
No. The "Senate" did not do that at all. McConnell abused his power as majority leader to deny the Senate a voice. It ought to be obvious to anyone that if it had come to a vote Garland would have been confirmed. This was not action by the Senate, but by McConnell.
The distinctions you are trying to draw among various unappetizing but allowable tactics are nonsense.
McConnell has NOT attempted this, not even suggested it.
Because he didn't need it. If you think he wouldn't try it, if circumstances suggested it, you are nuts.
Court packing would ring the bell on the final round of American democracy, we'd be fighting for all the stakes after that happened. It would be really ugly.
Spare me the crocodile tears for democracy, Brett.
The bell was rung a long time ago, with your hearty approval. We do not have a democracy, and the party in power is doing all it can to make sure things stay that way. Gloat if you like, but please don't pretend to be concerned about democracy. It makes you look foolish.
Yeah, but we have been at 9 for a long time and FDR's court packing scheme is now seen as a low point in history.
Court packing has one advantage- unlike other stuff proposed it might work. But it carries huge disadvantages as well. It is likely to be very unpopular and it will be met with retaliation by the Republicans.
The size of the Court was tweaked but the only blatant court packing so to speak was denying Andrew Johnson a pick. I put aside lower court stuff like the midnight judges. Times do warrant new checks over the years.
I see Tushnet has jumped on board the Court packing bandwagon, too.
I guess I’ll say about this what I said about Democratic threats back in October os 2016 to abolish the filibuster in regards to Supreme Court nominations: “Who, on finding themselves in a prisoners dilemma, openly announces their intention to defect when the other prisoner has the first interview with the warden?
Even setting aside the merits of the tactic, and the inevitable payback, it’s really stupid to announce your intention to do this sort of thing, when the other guy is likely to be positioned to do it to you first. It hands them the first mover advantage, and provides them with a perfectly reasonable excuse for doing it to you.
Expanding the Court(s) can't be considered in isolation. It's part of a larger project of democratizing the country in order to arrest the slide into fascism. We're now on a path in which our best case scenario looks to be Wisconsin, with the path down leading roughly to NC, then Hungary, Turkey, or Russia. The R strategy of preventing Dems from voting, or from adopting their policies, is one of long term minority rule.
The courts are part of this problem, but only part. The first step must be to increase democracy: no more gerrymandering; no more voter suppression; a larger House; no more foreign meddling; standards for counting ballots; anything that can be done about the Senate. Long term, the results of a better functioning democracy are unpredictable in terms of party, and more democracy is an intrinsic good. In the short term, the Rs perceive these reforms to harm their political prospects, which is why we see the biggest challenges to voting in purple states like WI and NC.
The problem with the current Court is that it's so partisan, it will block efforts to democratize the country precisely because those reforms are likely to favor the Dems in the current political climate. Reforming the courts therefore is a sine qua non to the long term political survival of the country.
But expanding the mechanical aspects of democracy isn't the only goal here. The Dems also have policies that they want to enact. The basic problem is that the Rs can and will use the courts to block those policies -- gun control, say, or abortion and contraceptive rights are obvious areas where this can occur. However, Trump's next pick would give us to a Court majority which basically considers the entire New Deal and Great Society unconstitutional and would block federal action on pretty much every front.
As a result, expanding the courts is essential to both the mechanics of democracy and the actual adoption of policies by one party. It's a necessary component of enhancing democracy in both senses.
"It's part of a larger project of democratizing the country in order to arrest the slide into fascism."
Where "the slide into fascism" isn't defined in terms of, you know, violent suppression of dissent, (Antifa) or taking over effective control of industries while leaving them in merely nominal private hands, (Obamacare) but instead means merely "the left not getting their way on everything."
Who's "no platforming" people who'd say things they don't like? Who is converting industries into de facto branches of the government by dictating what they shall sell, to who, at what price, and then mandating that people buy the product? Acts like this are the substance of fascism, Mark.
Like the 60's, when "the dark night of fascism is always descending in the United States and yet lands only in Europe.", only today it is always descending on the Right, and landing on the Left.
Mark, you complain of the courts defending gun ownership, but not abortion. But, conspicuously, the Constitution actually does specify that gun ownership is a right, and equally conspicuously, makes no mention of abortion. So what you're really complaining about is that the Supreme court is unduly influenced by the Constitution!
Your problem here is that you don't want a Court than enforces a Constitution you don't like. You want a Court that tosses it aside and enforces instead the Democratic party platform.
The progressives here are advocationg big D Democracy or rule by the urban progressive minority, not small “democracy” representing the will of a majority of a center right electorate, which supports the First and Second Amendments, voter ID and the traditional American Dream, but opposes illegal immigration and likely court packing.
Now, if you wish to reimpose Democracy, you need a crisis like an apparently lost war (2006) or a major recession (2008), you need to pathologically lie to the voters by running a center/right campaign or a cult of personality, then you have to be willing to lose tge government again in short order after imposing progressive policies against the will of your constituents.
The only way Democrats can gain and hold power in a small d democracy is to abandon progressive rule.
The current GOP/Conservative control of the Court is reenacting the post-Reconstruction Court in limiting the rights afforded by the Reconstruction As that continued until Brown v. Bd. of Educ. (Unanimous, 1954) and the civil rights movement. Consider how the originalism movement started with original intent originalism, which was readily challenged by Paul Brest's critique about determining a legislative collective intent. But apply this to CJ Roberts' #3 Muslim Ban in addressing Trump's XO, where collective intent was not involved but the clearly expressed intent of Trump as a candidate, President-elect and as President, unlike the difficulties with determining legislative collective intent. Even Brett knew what Trump meant. ]Sarcasm]
It's silly to see the defining characteristic of fascism as any economic program because historically fascists didn't have much of a coherent and/or shared one (not only is this true re different fascist regimes [Franco vs. Mussolini] but it's true within them, as they lurched from one program to another to try to capture and often co-opt whatever might seem popular) and their economic programs were never put out as their end goals but rather as a means to what really defined fascism across regimes and time: nationalism (often involving ethnicity/race) and militarism.
"the Constitution actually does specify that gun ownership is a right, and equally conspicuously, makes no mention of abortion"
It's not that simple, of course. The text offers a right of people to keep and bear arms as part of a well regulated militia (it's as if the speech clause read 'political debate being essential to a free republic, the right of the people to free speech shall not be abridged,' it's quite natural to read this as protecting only speech involving political matters). The 'right of individual armed self defense' the Heller court finds is not plain from the text. This is why no Supreme Court until 2008 found it there (a common conservative argument against 'new' rights is that if it took so long to recognize it then the text must not have been meant to supply it).
"Who's "no platforming" people who'd say things they don't like?"
"what really defined fascism across regimes and time: nationalism (often involving ethnicity/race) and militarism."
Exactly, and you're of course right about the economics too. But what's more interesting than Brett's failure to understand what fascism is, is his failure to deny the process I described as part of today's R party. I think there are 2 reasons for this: One, we can see it in operation in WI, NC, and now at the national level; and two, he himself is unwilling to let democracy operate for the very reason that he's unwilling to abide the result.
"The GOP candidate has lost the popular vote in six of the last seven Presidential elections (the election which has the highest voter participation)."
The GOP has generally lost the House vote too, though not always. And of course the Senate is structured to favor the Rs because it's small d undemocratic.
Mark, yes, of course. In discussion of voter ID Brett and most other conservatives will, when you bring up the prospect of a legitimate voter having their vote denied, eventually just tell you something like 'well if a person is too stupid/lazy to go get the requisite ID I'd actually rather not have that vote occur.' Also, it doesn't take much digging to find that the real reason someone like Brett doesn't like immigration is they're convinced the immigrants will vote Democratic (they fail to see the self-fulfilling prophecy there). It's not that it's an affront to them that the law is being skirted (they don't seem as worried that the IRS is always under-funded and staffed to catch all the technical violations of the tax laws that abound). With extreme partisans everything is seen through a partisan lens, all other principles are tossed out the window (notice in the discussion of McConnell denying a vote to Obama's choice the only criteria Brett thinks about is whether there was the technical power to do it (what they were entitled to do), ditto about voting for your own confirmation). Naked pursuit of partisan advantage is the only principle. It's funny that these same people ostensibly venerate our Founders who found that kind of attitude to be, well, deplorable.
With the exception of 2012, the GOP has won a majority or plurality of the vote everytime they won the House since 1994. 2012 was an ahistoric election where Obama managed a historically large urban turnout in a minority of House districts and Romney caused millions of white working class voters to stay home.
The Democrats mistakenly thought this would be a repeating trend in 2016 and lost.
Apparently SPAM'S 11:54 AM screed was inspired by another wet dream on how The Gilded Age of the late 19th century were America's best days, when America was great, while wearing a Trump MAGA hat. Trump as President has demonstrated that he is more a a fascist than when SPAM was in unCruz Canadacy Control and constantly described candidate Trump as a fascist. In effect, SPAM supports President Trump's fascism.
"It is difficult to get a man to understand something, when his salary depends on his not understanding it."
Upton Sinclair probably wouldn't mind an edit involving ideology but [see, reports, e.g., how the Koch Brothers are involving in court picks] there is overlap.
Mark Field's overall theory makes sense and if like the original Republican Party, some non-Democrats want to join a new coalition to advance it, great. If McCain's former lead advisor can realize true republican values requires it, maybe it is not a lost cause. As of now, and this was clear in 2016, only one party is serious about it, flawed as they might be in various ways like people tend to be.
The progressives here are advocationg big D Democracy or rule by the urban progressive minority, not small “democracy” representing the will of a majority of a center right electorate,
Horse hockey.
What we have today is a government dominated by the smaller of the two major parties, which is using its power to entrench itself against the threat of being kicked out by the voters. This is done through gerrymandering, vote suppression, supreme court decisions, etc. It is helped by the wildly undemocratic structure of the Senate (D's represent about 30% more people than R's) and the EC, and the mildly undemocratic nature of the house, exacerbated by gerrymanders (which the Republican Court refuses to address for no reason other than naked partisanship).
The threat of court packing at this point is just that & far from the mainstream position of the Democratic Party. But, if we don't want that, and hardball often is dangerous and/or unpleasant, compromise might help avoid it.
Garland was a compromise choice. He was someone listed by leading Republicans as a good Democratic choice. He was older than the average likely choice and Chief Justice Roberts himself respects the man. He is clearly a liberal but his record shows a level of moderation, particular in criminal law, that led some (along with other issues they had) on the liberal side to be wary about him. But, that's compromise for you.
But, we saw what happened. A compromise also is to wait until at least the Democrats control the Senate to make a pick. After Bush v. Gore, both Rehnquist and O'Connor waited to retire, O'Connor probably open to retire earlier given her husband's health. But, she waited until after the election (he died, but perhaps might have retired a year or two down the road) of 2004. Again, different now.
The last possible here is who is chosen. The people on the short list are the usual suspects though simply on credentials, they will be made out to be great compromise choices ala Gorsuch as if that is all that matters (Adams chose Marshall, not a leading Jeffersonian jurist). But, since the Garland seat is still tainted, that won't solve everything anyways. Still, it's a limited thing.
Anyway, I have seen a leading liberal law professor quite knowledgeable on election and politics say she is appalled at the idea of court packing. Fine. If the Democrats regain power, something has to be offered other than waiting a decade or so until Roberts and Alito are Kennedy's age & even then, no telling they will retire given past practice.
That's an inspiring post, Mista Whiskas, and not all wrong. It would be a good deal less ironic, though, if not posted in service of an argument for court packing.
"Name a single progressive policy which was not borrowed from socialists or fascists."
This is a silly reply to my comment because I explicitly wrote "It's silly to see the defining characteristic of fascism as any economic program because historically fascists didn't have much of a coherent and/or shared one (not only is this true re different fascist regimes [Franco vs. Mussolini] but it's true within them, as they lurched from one program to another to try to capture and often co-opt whatever might seem popular) and their economic programs were never put out as their end goals"
It's also silly because socialists are equated with fascists (pretty funny for a guy who just the other day quoted Neimoller"First they came for the socialists" ('they' didn't come for themselves!).
No, what ties the Protean forms of the fascism of Hitler, Franco, Mussolini, etc., together are nationalism and militarism.
The NYTimes has noted that thousands of constitutional amendments have been proposed over the years but only 27 adopted to date and invites readers to send letters with their proposals. I do not plan to submit a proposal but will be interested in such proposals from letter writers.
Regarding Adams' nominating Marshall to the Court, that was done late in Adams' term, when there were obvious animosities between Adams and Jefferson. Marshall served in Adams' cabinet. Why wouldn't Adams appoint someone from a non slave state? Might such a nominee have been difficult getting through the Senate? Also, presumably Adams might have anticipated that Marshall might defend certain actions of the Adams Administration that were questionable. It should be noted that Marshall as Secretary of State had neglected to deliver the commission that were the subject of Marbury v. Madison in which Marshall wrote the decision of the Court, no dissents, no concurring opinions.
Here is a thought. In 1988, Ronald Reagan nomianted Bork to the Supreme Court at a time when Senate norms surrounding court nominations were pretty healthy. Democrats shocked the country by turning the confirmation into a highly political process, ultimately turning down an obviously qualified jurist for political reasons. The explanation was simple: the stakes of the court had gotten so high that they could not realistically face having a solid 5-4 majority there.
Fast forward 30 years. The Democrats seem poised to finally have to put up with a 5-4 Court majority now, and there are no moves left on the board to stop it. Meanwhile, our Constitutional norms around Court nominations lie in rags and tatters, and BOTH parties have done a great deal to get them there. (Everybody has a strong opinion about who has done more. I submit that the blame is severe on both sides, in any event.)
Is this encouraging? Does it make you think, "Wow, I bet another escalation on our side is the way to go?" How about this, for those who REALLY love the country and actually want to see both institutional healing and continue fighting over the Supreme Court.
The Democratic leadership goes to the Republican leadership with the following offer: OK, you're about to get what you'd have gotten in 1988 if this hadn't all started. Fine. But we'd like to restore things somewhat, and we're still mad as hell about Merrick Garland (and etc. etc.). So we both sign and prominently publish the following deal, in writing. Trump has to agree.
(1) We'll accept any justice from Trump's list for Kennedy's replacement. (Or maybe only Brett Kavanaugh, if others seem too radical). (2) Ginsburg retires, and Trump replaces her with Merrick Garland (or some younger/more liberal person if preferred. The person should be roughly as reasonable, leftwise, as whoever was hashed out in step (1), i.e., Garland if Kavanaugh was required, or anybody if anybody was allowed). (3) If it's even possible (I don't know this), both parties move to restore the judicial filibuster. Both parties agree it will not be used again for qualified judges. (Codify this if need be.) (4) It's put into Senate rules that it takes a super-majority to take up a question of court packing (if this is even possible).
The downside: Democrats still end up down 5-4 and maybe lose some very important decisions.
The upside: they don't face the prospect of 6-3 soon, and there's a measure of institutional healing. They're going to go down 5-4 anyway, so there's no actual loss arguably. Maybe some of you prefer fantasies of court packing, but as has been pointed out, that's only an acceleration of the slippery slope. Once you expand the court to 21, and then lose an election and the Republicans expand it to 45 and still have a majority (of now much lower-quality conservative minds), do you really think that's going to be an improvement?
For the sake of the country, can we please try something like this?
I only have 5 minutes before this thread times out, so this will have to be short.
First, SMack your understanding of the Bork hearings are incomplete. The Democrats' nefarious plan was to quote Bork's own words and then give him an up-or-down hearing. As Bork proved in subsequent years, he was exactly the nut that his own words portrayed.
Your items 3 and 4 are not possible within Senate rules. A majority can change the rules at any time. And there's no process to bar that.
Your "compromise" gives the Rs something that they didn't have when Obama nominated Garland. There's no reason for the Dems to take that offer, especially since the next 2 retirements are likely to be Dems. As I said, the Rs have controlled the Court since 1969. Dem Senators voted to confirm every single one of the R Justices in that time, even voting unanimously for Scalia.
Dragging this out seems like a good way to mobilize the right. There is no fix on this. Ireland just repealed a constitutional amendment so nothing is permanent. Besides pro-forma opposition, Dems need to start paying attention to state and local races, learn to mobilize the base in the mid-terms, Deal with the Electoral College with something like the National Popular Vote, and start moving the Overton window on adjusting upwards the number of judges on the Appeals Courts and the SC.
ReplyDeleteAs I said elsewhere, Democrats are already thinking about packing the Court when they're next in power.
ReplyDeleteTalking Points Memo has a good analysis about the value of fighting it to some degree but doing it without being reckless:
ReplyDeletehttps://talkingpointsmemo.com/edblog/the-critical-question-facing-democrats-and-the-court
How did the Republicans "mobilize the base" over the years? Being temperate? As the article notes, some degree of pushback is necessary since doing nothing belies a basic message of Democrats that we need to restrain Trump. This doesn't mean just lash out, but some pushback like senators are doing now, including perhaps some sort of symbolic effort akin to this to make a point -- Republicans did this repeatedly on various things -- could help their long term plans.
Democrats are paying attention to local races.
Republicans violated long term norms including to block the elected President of the United States to have votes on his judicial picks. The net result being Trump being able to have many more slots, including a seat on the Supreme Court. A form of "court packing" that over the years prevented the wishes of the democratically elected.
But, for some, this doesn't matter when it doesn't matter. The problems with the legitimacy of the very election and Trump overall has also been expressed. Trump supporters obviously don't accept this on the merits, but the merits are a lot stronger than the things put forth to make Obama (or Bill Clinton) out to be illegitimate. As far as this goes, the ultimate test will be the ballot box.
"Democrats are paying attention to local races."
ReplyDeleteWhich is good but it needs to be sustained which up to now it hasn't. The only cure for gerrymandering and the Electoral College will require continuous effort for quite a while.
"As I said elsewhere, Democrats are already thinking about packing the Court when they're next in power."
McConnell brought a knife, Dems need to bring a gun. The results of his preventing court appointments needs to be so painful that no one goes there again.
Just a thought: If (as is likely) Trump's treason (yeh, yeh but at this point given what we already know...) winds up at the SC at some point and Garland and X don't recuse themselves, would that be grounds for impeachment should the numbers in the Congress allow at some point in the near future?
The thing about impeachment that many seem to ignore is that a 2/3ds vote in the Senate is required to remove. Absent something really more extraordinary than anything currently in sight, that ain't gonna happen.
ReplyDeleteThe numbers won't allow it. The Rs are now the party of Trump. They won't turn on him, not to that extent anyway.
ReplyDeleteResistance now in suitable part can help the future, including big changes, so it is not this or that really. Dealing with gerrymandering and other things? Still important.
ReplyDeleteImpeachment even with small majorities won't mean removal of Trump though if Democrats do gain control and things change somewhat, who is to know what 2019-20 brings. Right to be pessimistic surely. Control of the House will allow more pressure and investigation & impeachment there is more of a principle. Trump can do wrong, he can be investigated as could others.
Many figured the Republicans overreached with impeachment of Clinton, but that was a mixed bag long term. This arguably included support of "no drama" Bush, some guy you can have a drink with (and not worry about your daughter, I guess), or something. Anyway, people talk about impeachment, including how Democrats should even think of that sort of thing (as Chris Hayes says, Dems are told to be civilized, don't go too far, but Republicans didn't seem to be need to worry about that much), but it's not really what we should be worrying about now except not to somehow totally take such things "off the table."
Is splitting comment threads a new concept for Balkinization posts? Do I perceive potential poster envy?
ReplyDeleteIf the Democrats can retake the House, they will use their various investigative powers to expose the wrongdoing rising from within the Trump administration. It's possible that the smell may become so intense that Republicans in the Senate cannot simply continue to hold their noses if an impeachment-generated trial is before them.
ReplyDeleteThe Mueller investigation might have an amplifying effect.
So I would not rule out the possibility of a Senate conviction on the basis of a Republican majority or even a large plurality in the Senate. But time is the main obstacle; unless Trump wins again, in 2020.
Democrats are already thinking about packing the Court when they're next in power.
ReplyDeleteWell, as a practical matter McConnell packed it, so why shouldn't the Democrats?
In fact, I'd say what McConnell did was worse, in that not bringing the Garland nomination to a vote denied the Senate a voice in the process.
The Democrats, on the other hand, can't enlarge the court without votes in both houses.
If all tactics are fair then so be it.
"If the Democrats can retake the House, they will use their various investigative powers to expose the wrongdoing rising from within the Trump administration."
ReplyDeleteMind, you're assuming there's (more than average) wrongdoing to expose.
"Well, as a practical matter McConnell packed it, so why shouldn't the Democrats?"
ReplyDeleteNo, as a practical matter all the Senate did under McConnell was refuse to approve of Obama's nominee. Something they're perfectly entitled to do.
If Democrats retake the Senate this fall, and Ginsberg retires, it would be perfectly legitimate for Democrats to refuse to act on Trump's nominee in the hope of the next President nominating somebody they like better.
Packing is enlarging the Court all at once to add enough seats to guarantee you have a majority on the Court after the new seats are filled, without any need to wait on a retirement. McConnell has NOT attempted this, not even suggested it.
FDR, historically, wanted this, but his own party would not cooperate. I doubt Republicans would cooperate if Trump proposed it.
The thing about court packing, is that if anybody does finally do it, they will know that it will be done again the moment the opposing party takes control. So the temptation will be very strong to take some additional action to render elections no longer competative.
Court packing would ring the bell on the final round of American democracy, we'd be fighting for all the stakes after that happened. It would be really ugly.
The last day Dem appointees constituted a majority on the Court was May 14, 1969. I think the Republic will continue to stand if it happens again. It probably won't in the alternative scenario.
ReplyDeleteNot that Brett likely cares, but all the federal courts could use extra judges, including especially the Supremes. A "Speedy Access to Justice Act" would be good policy.
No, as a practical matter all the Senate did under McConnell was refuse to approve of Obama's nominee. Something they're perfectly entitled to do.
ReplyDeleteNo. The "Senate" did not do that at all. McConnell abused his power as majority leader to deny the Senate a voice. It ought to be obvious to anyone that if it had come to a vote Garland would have been confirmed. This was not action by the Senate, but by McConnell.
The distinctions you are trying to draw among various unappetizing but allowable tactics are nonsense.
McConnell has NOT attempted this, not even suggested it.
Because he didn't need it. If you think he wouldn't try it, if circumstances suggested it, you are nuts.
Court packing would ring the bell on the final round of American democracy, we'd be fighting for all the stakes after that happened. It would be really ugly.
ReplyDeleteSpare me the crocodile tears for democracy, Brett.
The bell was rung a long time ago, with your hearty approval. We do not have a democracy, and the party in power is doing all it can to make sure things stay that way. Gloat if you like, but please don't pretend to be concerned about democracy. It makes you look foolish.
The big thing about any Dem strategy is it needs to help Dems in swing states, especially in the Rust Belt.
ReplyDeleteA strategy that energizes the base in blue states the Dems win anyway is useless.
For what it's worth, the number of justices on the court has been changed several times in our history. It's not like it's "unprecedented".
ReplyDeleteJack:
ReplyDeleteYeah, but we have been at 9 for a long time and FDR's court packing scheme is now seen as a low point in history.
Court packing has one advantage- unlike other stuff proposed it might work. But it carries huge disadvantages as well. It is likely to be very unpopular and it will be met with retaliation by the Republicans.
In hindsight, FDR won the war, but the actuarial math is harder this time especially with another Trump pick.
ReplyDeleteThe size of the Court was tweaked but the only blatant court packing so to speak was denying Andrew Johnson a pick. I put aside lower court stuff like the midnight judges. Times do warrant new checks over the years.
ReplyDeleteI see Tushnet has jumped on board the Court packing bandwagon, too.
ReplyDeleteI guess I’ll say about this what I said about Democratic threats back in October os 2016 to abolish the filibuster in regards to Supreme Court nominations: “Who, on finding themselves in a prisoners dilemma, openly announces their intention to defect when the other prisoner has the first interview with the warden?
Even setting aside the merits of the tactic, and the inevitable payback, it’s really stupid to announce your intention to do this sort of thing, when the other guy is likely to be positioned to do it to you first. It hands them the first mover advantage, and provides them with a perfectly reasonable excuse for doing it to you.
It's wonderful that the Democrats have Brett to advise them on strategy.
ReplyDeleteExpanding the Court(s) can't be considered in isolation. It's part of a larger project of democratizing the country in order to arrest the slide into fascism. We're now on a path in which our best case scenario looks to be Wisconsin, with the path down leading roughly to NC, then Hungary, Turkey, or Russia. The R strategy of preventing Dems from voting, or from adopting their policies, is one of long term minority rule.
ReplyDeleteThe courts are part of this problem, but only part. The first step must be to increase democracy: no more gerrymandering; no more voter suppression; a larger House; no more foreign meddling; standards for counting ballots; anything that can be done about the Senate. Long term, the results of a better functioning democracy are unpredictable in terms of party, and more democracy is an intrinsic good. In the short term, the Rs perceive these reforms to harm their political prospects, which is why we see the biggest challenges to voting in purple states like WI and NC.
The problem with the current Court is that it's so partisan, it will block efforts to democratize the country precisely because those reforms are likely to favor the Dems in the current political climate. Reforming the courts therefore is a sine qua non to the long term political survival of the country.
But expanding the mechanical aspects of democracy isn't the only goal here. The Dems also have policies that they want to enact. The basic problem is that the Rs can and will use the courts to block those policies -- gun control, say, or abortion and contraceptive rights are obvious areas where this can occur. However, Trump's next pick would give us to a Court majority which basically considers the entire New Deal and Great Society unconstitutional and would block federal action on pretty much every front.
As a result, expanding the courts is essential to both the mechanics of democracy and the actual adoption of policies by one party. It's a necessary component of enhancing democracy in both senses.
"It's part of a larger project of democratizing the country in order to arrest the slide into fascism."
ReplyDeleteWhere "the slide into fascism" isn't defined in terms of, you know, violent suppression of dissent, (Antifa) or taking over effective control of industries while leaving them in merely nominal private hands, (Obamacare) but instead means merely "the left not getting their way on everything."
Who's "no platforming" people who'd say things they don't like? Who is converting industries into de facto branches of the government by dictating what they shall sell, to who, at what price, and then mandating that people buy the product? Acts like this are the substance of fascism, Mark.
Like the 60's, when "the dark night of fascism is always descending in the United States and yet lands only in Europe.", only today it is always descending on the Right, and landing on the Left.
Mark, you complain of the courts defending gun ownership, but not abortion. But, conspicuously, the Constitution actually does specify that gun ownership is a right, and equally conspicuously, makes no mention of abortion. So what you're really complaining about is that the Supreme court is unduly influenced by the Constitution!
Your problem here is that you don't want a Court than enforces a Constitution you don't like. You want a Court that tosses it aside and enforces instead the Democratic party platform.
And count anything less as tyranny.
The progressives here are advocationg big D Democracy or rule by the urban progressive minority, not small “democracy” representing the will of a majority of a center right electorate, which supports the First and Second Amendments, voter ID and the traditional American Dream, but opposes illegal immigration and likely court packing.
ReplyDeleteNow, if you wish to reimpose Democracy, you need a crisis like an apparently lost war (2006) or a major recession (2008), you need to pathologically lie to the voters by running a center/right campaign or a cult of personality, then you have to be willing to lose tge government again in short order after imposing progressive policies against the will of your constituents.
The only way Democrats can gain and hold power in a small d democracy is to abandon progressive rule.
The current GOP/Conservative control of the Court is reenacting the post-Reconstruction Court in limiting the rights afforded by the Reconstruction As that continued until Brown v. Bd. of Educ. (Unanimous, 1954) and the civil rights movement. Consider how the originalism movement started with original intent originalism, which was readily challenged by Paul Brest's critique about determining a legislative collective intent. But apply this to CJ Roberts' #3 Muslim Ban in addressing Trump's XO, where collective intent was not involved but the clearly expressed intent of Trump as a candidate, President-elect and as President, unlike the difficulties with determining legislative collective intent. Even Brett knew what Trump meant. ]Sarcasm]
ReplyDeleteIt's silly to see the defining characteristic of fascism as any economic program because historically fascists didn't have much of a coherent and/or shared one (not only is this true re different fascist regimes [Franco vs. Mussolini] but it's true within them, as they lurched from one program to another to try to capture and often co-opt whatever might seem popular) and their economic programs were never put out as their end goals but rather as a means to what really defined fascism across regimes and time: nationalism (often involving ethnicity/race) and militarism.
ReplyDelete"the Constitution actually does specify that gun ownership is a right, and equally conspicuously, makes no mention of abortion"
It's not that simple, of course. The text offers a right of people to keep and bear arms as part of a well regulated militia (it's as if the speech clause read 'political debate being essential to a free republic, the right of the people to free speech shall not be abridged,' it's quite natural to read this as protecting only speech involving political matters). The 'right of individual armed self defense' the Heller court finds is not plain from the text. This is why no Supreme Court until 2008 found it there (a common conservative argument against 'new' rights is that if it took so long to recognize it then the text must not have been meant to supply it).
"Who's "no platforming" people who'd say things they don't like?"
Should we ask Colin Kaepernick?
"an apparently lost war"
ReplyDeleteLOL!
"lose tge government again in short order"
Of course, Obama won successive terms.
'The only way Democrats can gain and hold power in a small d democracy is to abandon progressive rule."
The GOP candidate has lost the popular vote in six of the last seven Presidential elections (the election which has the highest voter participation).
"what really defined fascism across regimes and time: nationalism (often involving ethnicity/race) and militarism."
ReplyDeleteExactly, and you're of course right about the economics too. But what's more interesting than Brett's failure to understand what fascism is, is his failure to deny the process I described as part of today's R party. I think there are 2 reasons for this: One, we can see it in operation in WI, NC, and now at the national level; and two, he himself is unwilling to let democracy operate for the very reason that he's unwilling to abide the result.
"The GOP candidate has lost the popular vote in six of the last seven Presidential elections (the election which has the highest voter participation)."
ReplyDeleteThe GOP has generally lost the House vote too, though not always. And of course the Senate is structured to favor the Rs because it's small d undemocratic.
Mark, yes, of course. In discussion of voter ID Brett and most other conservatives will, when you bring up the prospect of a legitimate voter having their vote denied, eventually just tell you something like 'well if a person is too stupid/lazy to go get the requisite ID I'd actually rather not have that vote occur.' Also, it doesn't take much digging to find that the real reason someone like Brett doesn't like immigration is they're convinced the immigrants will vote Democratic (they fail to see the self-fulfilling prophecy there). It's not that it's an affront to them that the law is being skirted (they don't seem as worried that the IRS is always under-funded and staffed to catch all the technical violations of the tax laws that abound). With extreme partisans everything is seen through a partisan lens, all other principles are tossed out the window (notice in the discussion of McConnell denying a vote to Obama's choice the only criteria Brett thinks about is whether there was the technical power to do it (what they were entitled to do), ditto about voting for your own confirmation). Naked pursuit of partisan advantage is the only principle. It's funny that these same people ostensibly venerate our Founders who found that kind of attitude to be, well, deplorable.
ReplyDeleteFor the progressive here who are unaware of their own history:
ReplyDeleteName a single progressive policy which was not borrowed from socialists or fascists.
Progressives slandering conservatives and lbertarians as fascists is really the height of hypocrisy.
Mark:
ReplyDeleteWith the exception of 2012, the GOP has won a majority or plurality of the vote everytime they won the House since 1994. 2012 was an ahistoric election where Obama managed a historically large urban turnout in a minority of House districts and Romney caused millions of white working class voters to stay home.
The Democrats mistakenly thought this would be a repeating trend in 2016 and lost.
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ReplyDeleteApparently SPAM'S 11:54 AM screed was inspired by another wet dream on how The Gilded Age of the late 19th century were America's best days, when America was great, while wearing a Trump MAGA hat. Trump as President has demonstrated that he is more a a fascist than when SPAM was in unCruz Canadacy Control and constantly described candidate Trump as a fascist. In effect, SPAM supports President Trump's fascism.
ReplyDelete"It is difficult to get a man to understand something, when his salary depends on his not understanding it."
ReplyDeleteUpton Sinclair probably wouldn't mind an edit involving ideology but [see, reports, e.g., how the Koch Brothers are involving in court picks] there is overlap.
Mark Field's overall theory makes sense and if like the original Republican Party, some non-Democrats want to join a new coalition to advance it, great. If McCain's former lead advisor can realize true republican values requires it, maybe it is not a lost cause. As of now, and this was clear in 2016, only one party is serious about it, flawed as they might be in various ways like people tend to be.
The progressives here are advocationg big D Democracy or rule by the urban progressive minority, not small “democracy” representing the will of a majority of a center right electorate,
ReplyDeleteHorse hockey.
What we have today is a government dominated by the smaller of the two major parties, which is using its power to entrench itself against the threat of being kicked out by the voters. This is done through gerrymandering, vote suppression, supreme court decisions, etc. It is helped by the wildly undemocratic structure of the Senate (D's represent about 30% more people than R's) and the EC, and the mildly undemocratic nature of the house, exacerbated by gerrymanders (which the Republican Court refuses to address for no reason other than naked partisanship).
The threat of court packing at this point is just that & far from the mainstream position of the Democratic Party. But, if we don't want that, and hardball often is dangerous and/or unpleasant, compromise might help avoid it.
ReplyDeleteGarland was a compromise choice. He was someone listed by leading Republicans as a good Democratic choice. He was older than the average likely choice and Chief Justice Roberts himself respects the man. He is clearly a liberal but his record shows a level of moderation, particular in criminal law, that led some (along with other issues they had) on the liberal side to be wary about him. But, that's compromise for you.
But, we saw what happened. A compromise also is to wait until at least the Democrats control the Senate to make a pick. After Bush v. Gore, both Rehnquist and O'Connor waited to retire, O'Connor probably open to retire earlier given her husband's health. But, she waited until after the election (he died, but perhaps might have retired a year or two down the road) of 2004. Again, different now.
The last possible here is who is chosen. The people on the short list are the usual suspects though simply on credentials, they will be made out to be great compromise choices ala Gorsuch as if that is all that matters (Adams chose Marshall, not a leading Jeffersonian jurist). But, since the Garland seat is still tainted, that won't solve everything anyways. Still, it's a limited thing.
Anyway, I have seen a leading liberal law professor quite knowledgeable on election and politics say she is appalled at the idea of court packing. Fine. If the Democrats regain power, something has to be offered other than waiting a decade or so until Roberts and Alito are Kennedy's age & even then, no telling they will retire given past practice.
That's an inspiring post, Mista Whiskas, and not all wrong. It would be a good deal less ironic, though, if not posted in service of an argument for court packing.
ReplyDelete"Name a single progressive policy which was not borrowed from socialists or fascists."
ReplyDeleteThis is a silly reply to my comment because I explicitly wrote "It's silly to see the defining characteristic of fascism as any economic program because historically fascists didn't have much of a coherent and/or shared one (not only is this true re different fascist regimes [Franco vs. Mussolini] but it's true within them, as they lurched from one program to another to try to capture and often co-opt whatever might seem popular) and their economic programs were never put out as their end goals"
It's also silly because socialists are equated with fascists (pretty funny for a guy who just the other day quoted Neimoller"First they came for the socialists" ('they' didn't come for themselves!).
No, what ties the Protean forms of the fascism of Hitler, Franco, Mussolini, etc., together are nationalism and militarism.
"It would be a good deal less ironic, though, if not posted in service of an argument for court packing."
ReplyDeleteI have made no argument about court packing at all.
The NYTimes has noted that thousands of constitutional amendments have been proposed over the years but only 27 adopted to date and invites readers to send letters with their proposals. I do not plan to submit a proposal but will be interested in such proposals from letter writers.
ReplyDeleteRegarding Adams' nominating Marshall to the Court, that was done late in Adams' term, when there were obvious animosities between Adams and Jefferson. Marshall served in Adams' cabinet. Why wouldn't Adams appoint someone from a non slave state? Might such a nominee have been difficult getting through the Senate? Also, presumably Adams might have anticipated that Marshall might defend certain actions of the Adams Administration that were questionable. It should be noted that Marshall as Secretary of State had neglected to deliver the commission that were the subject of Marbury v. Madison in which Marshall wrote the decision of the Court, no dissents, no concurring opinions.
@Mista,
ReplyDeleteThat is the context of the discussion, though.
@All,
Here is a thought. In 1988, Ronald Reagan nomianted Bork to the Supreme Court at a time when Senate norms surrounding court nominations were pretty healthy. Democrats shocked the country by turning the confirmation into a highly political process, ultimately turning down an obviously qualified jurist for political reasons. The explanation was simple: the stakes of the court had gotten so high that they could not realistically face having a solid 5-4 majority there.
Fast forward 30 years. The Democrats seem poised to finally have to put up with a 5-4 Court majority now, and there are no moves left on the board to stop it. Meanwhile, our Constitutional norms around Court nominations lie in rags and tatters, and BOTH parties have done a great deal to get them there. (Everybody has a strong opinion about who has done more. I submit that the blame is severe on both sides, in any event.)
Is this encouraging? Does it make you think, "Wow, I bet another escalation on our side is the way to go?" How about this, for those who REALLY love the country and actually want to see both institutional healing and continue fighting over the Supreme Court.
The Democratic leadership goes to the Republican leadership with the following offer: OK, you're about to get what you'd have gotten in 1988 if this hadn't all started. Fine. But we'd like to restore things somewhat, and we're still mad as hell about Merrick Garland (and etc. etc.). So we both sign and prominently publish the following deal, in writing. Trump has to agree.
(1) We'll accept any justice from Trump's list for Kennedy's replacement. (Or maybe only Brett Kavanaugh, if others seem too radical).
(2) Ginsburg retires, and Trump replaces her with Merrick Garland (or some younger/more liberal person if preferred. The person should be roughly as reasonable, leftwise, as whoever was hashed out in step (1), i.e., Garland if Kavanaugh was required, or anybody if anybody was allowed).
(3) If it's even possible (I don't know this), both parties move to restore the judicial filibuster. Both parties agree it will not be used again for qualified judges. (Codify this if need be.)
(4) It's put into Senate rules that it takes a super-majority to take up a question of court packing (if this is even possible).
The downside: Democrats still end up down 5-4 and maybe lose some very important decisions.
The upside: they don't face the prospect of 6-3 soon, and there's a measure of institutional healing. They're going to go down 5-4 anyway, so there's no actual loss arguably. Maybe some of you prefer fantasies of court packing, but as has been pointed out, that's only an acceleration of the slippery slope. Once you expand the court to 21, and then lose an election and the Republicans expand it to 45 and still have a majority (of now much lower-quality conservative minds), do you really think that's going to be an improvement?
For the sake of the country, can we please try something like this?
I only have 5 minutes before this thread times out, so this will have to be short.
ReplyDeleteFirst, SMack your understanding of the Bork hearings are incomplete. The Democrats' nefarious plan was to quote Bork's own words and then give him an up-or-down hearing. As Bork proved in subsequent years, he was exactly the nut that his own words portrayed.
Your items 3 and 4 are not possible within Senate rules. A majority can change the rules at any time. And there's no process to bar that.
Your "compromise" gives the Rs something that they didn't have when Obama nominated Garland. There's no reason for the Dems to take that offer, especially since the next 2 retirements are likely to be Dems. As I said, the Rs have controlled the Court since 1969. Dem Senators voted to confirm every single one of the R Justices in that time, even voting unanimously for Scalia.