I've been thinking about Democratic threats to add seats to the USSC so they can fill them with progressive justices, and I wonder if the best solution is to end that idea with a Constitutional amendment setting a specific number of justices.
That number wouldn't have to be 9. Back in 2018, Glenn Reynolds suggested 59, with the new 50 being chosen by the states' governors and confirmed by the Senate.
But the point would be to stop this "We'll pack the courts!" nonsense.
So what do you think?
There really are only two things that can prevent packing the Court by adding seats (recall that FDR thoroughly packed the Court without adding seats).
ReplyDeleteOne is a Constitutional Amendment that fixes the maximum number of seats.
A fillip to the Amendment: mandate that the President act to nominate a replacement within a maximum time--say, a week--after the seat comes open, and a maximum period of time for the Senate to confirm or decline to confirm the nomination--here including a formal statement that the Senate will not take up the matter--say, two weeks. Current Senate rules mandate 30 hours of floor debate for a nomination that reaches the floor; that easily falls within the two weeks. Current Judicial Committee rules mandate a fixed amount of time for the members to question the nominee and witnesses. Members must manage their time and the number of witnesses so the whole process fits within those two weeks. A No Decision/missed deadline would constitute a confirmation. Yes, that would encourage Senators to stall the process to favor particular nominations. Deal with it; that's what elections are for.
Which brings me to the other way, one preferred by me: repeated and repeated and repeated Republican control of the Senate.
Again, that's what elections are for.
Last time I looked, too, regarding those insisting that the people should have a say in who nominates/confirms whom, the people already have their say: the folks the people have chosen still are in office. Their terms don't expire at the convenience of one or another political party.
Eric Hines
I think the Democrats are playing with fire and do not realize it. All the talk of packing the Court, dumping the Electoral College, adding (Democrat leaning) States to the Union, abolishing the filibuster, impeaching the President for LITERALLY performing a duty required by the Constitution, etc... they are sowing the wind. Because what all these things have in common is, they discard the rules we've operated under for the past 250+ years. Those rules favor neither party, and any belief otherwise is intellectually dishonest (want proof? Quite literally no party has held the White House for more than 12 years since FDR (who was a complete anomaly, and without that anomaly it's 16 years tops since 1855), the Senate has not remained under one party's control over 8 years since 1983, and excluding Democrat control from 1958-1982 no more than 18 years since 1855. The House (outside of Democrat control from 1958-1998) has been under no one party more than 16 years since 1855. This system has worked for all that time. And they want to throw it out in order to ram (effectively) one party rule for what they imagine will be the rest of time.
ReplyDeleteWhat they are likely to get instead is an actual armed civil war. Because when you fix the game to shut out your political opponents, when you change the rules to put your thumb on the scale, you've signaled to your opponents that their only recourse is to depose you. Violently.
And what galls me the most, is when you point this out to folks on the left, the response is almost universal. "Yeah, I'd like to see a bunch of rednecks fight the US military." They fundamentally DO NOT understand the very people they believe will take their side in this. Oh sure, President Obama loaded the flag officer corps with left leaning yes men. And I am certain that those officers will happily give orders to fight any armed insurrection. But I also fully believe that those officers would rapidly find themselves under arrest (if not actually shot) for violating their oath to uphold the Constitution.
But let's say they aren't. Let's say the military, despite being right leaning by at least a 2:1 margin, goes along with it. There are 15 times as many people who hold yearly hunting licenses as members of the US military (all branches combined), not to mention the gun owners of America who do not hunt. And anyone who thinks the police are going to take the side of Democrats after this year are insane. As for the laughable argument "an AR-15 won't stand up to bombers and tanks"... again, ASSUMING the military takes their side, the actual hell they don't. Ask the Syrians and Chechens how well small arms hold up against modern militaries. They'll give you an education. Not to mention how the hell do they propose to bomb an armed insurrection? Leftists who play military strategist are deluding themselves as to what an actual civil war will look like. How do they actually think they will FEED themselves in their coastal enclaves? Do they expect the deep Red Midwest to just "go along with it"? I can almost guarantee you farmers would burn their crops rather than feed coastal tyrants who want to disenfranchise them.
And that's my fear... they're like children playing with a live electrical wire with no concept of how dangerous it is. And there won't be a gradual build up if they try this nonsense. They'll get a swift and bloody response unlike anything they can imagine. And if they truly fear right wing tyranny, there is surely no better way to bring it about than to try imposing left wing tyranny. Because after they (inevitably) lose, I doubt the victors would be nearly as forgiving or willing to give them back the power they currently hold.
And to be clear... I am not calling for violence, or insurrection, or even threatening such. I am pleading with the left to wake up to the danger of what they're proposing. This isn't a game.
And if they truly fear right wing tyranny, there is surely no better way to bring it about than to try imposing left wing tyranny.
ReplyDeleteWe do have, domestically, one prior example of this. After the Democrats lost the Civil War of 155 years ago, they were under Republican armed occupation for quite a number of years. The Democrats called that tyranny, and it likely felt like that. To them. That it was not tyranny of any sort is demonstrated by the fact that those same Republicans voluntarily ended the occupation after a period of years and welcomed the Democrat States back into the Union as equals.
Eric Hines
Mike, I tend to agree with you. It's kinda scary.
ReplyDeleteMr. Hines, this is a topic I'm a bit torn about. I think the design of the USSC in the Constitution was flawed, and Marbury v Madison showed us how. Thomas Jefferson himself tried to get amendments passed to reverse that decision, but failed. I think that original design allowed the USSC to make itself more powerful than it should be, and FDR and the idea of a living constitution showed us that fairly clearly.
That said, I'm not sure how it could have been done better, or how to fix it now.
I've thought about it, but my own ideas are fairly limited. For example, we could allow a 2/3s or 3/4s vote of the state legislatures to overturn or even replace a USSC decision. Those numbers are pretty difficult to get, enough so that it may be no real solution at all, but it would be something.
Or, something else that gets noted occasionally is that the majority decision in a USSC ruling has factual errors. Maybe when it's clear the decision relies on such errors, the Senate could vote to order the USSC to reconsider the case -- not reverse the decision, just reconsider. This is quite weak, because all the USSC would have to do is rewrite it, but it also is something.
In the end, the vote is what we have, so that's the course we must follow, regardless of what should be the case.
From: Landmark Cases:
ReplyDelete"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
The site has collected 7 other similar quotes from Jefferson.
Tom, I have trouble with the Constitutionality of the Court's Marbury ruling, however convenient it might seem usually. The Federalist Papers are far from dispositive on that. There's nothing in the Constitution that gives the Supreme Court the authority to arrogate to itself the role of final arbiter of constitutionality. In fact, the deliberate design in our Constitution of the Federal government--three coequal branches--suggests strongly that the Supreme Court not only does not have, but cannot have, that authority.
ReplyDeleteThat aside, the Constitution mandates that judicial Officers, among others, must take an oath to support this Constitution, and the oaths actually required by statute go further and require defending our Constitution.
What might be considered (itself a very slippery and steep slope, so maybe not) is a more aggressive Congress impeaching judges and Justices for violations of those oaths. And I submit that a judge or Justice who reinterprets this or that clause to fit his view of the times, rather than adhering to the plain, obvious, and rational meaning of the language in this or that clause is violating his oath and should be removed from the bench.
That would be the Legislative exercising its check and balance obligation on the Judiciary.
Another, very cumbersome (but cumbersomeness isn't, of necessity, disqualifying) mechanism might be something along the lines of the Supreme Court saying, "That's unconstitutional," the Congress saying, "No, it's not," or the Executive seconded by a lesser majority of Congress saying, "No, it's not," and the split being promptly decided by a plebiscite. But that would require an Amendment, too.
Eric Hines