Against Packing the Supreme Court

Legitimacy hangs in the balance.

The passing of liberal stalwart Ruth Bader Ginsburg and the prospect that President Trump will replace her with a conservative naturally has Democrats panicked and Republicans giddy. The fact Trump won despite a deficit of nearly three million and has already appointed two Justices—including one that rightly should have gone to his Democratic predecessor—adds to the sense of outrage and has sparked talk of “packing” the Court by expanding it beyond the customary nine members. While understandable, this would permanently end the legitimacy of the judiciary and undermine the delicate balance that has held the nation together.

My longtime friend and colleague Steven Taylor, who shares my general instincts on these matters, defends expanding the Court as a necessary evil—a regrettably necessary further breaking of norms in order to correct the injustice of a deeply unrepresentative system that can’t reasonably be fixed through more normal processes.

We largely agree on the problem. While I’m perhaps a bit more sanguine about having geography (“states”) factor into representation in a diverse, federal Republic, repeatedly having the most powerful figure in our system chosen by a minority of the voters is deeply troublesome. That this person then gets to choose the judiciary—with the consent of the legislative body also representing a minority of the population—compounds the problem.

We also agree that “that’s what the Framers wanted” is no longer an acceptable answer. First, because it’s simply untrue. We haven’t elected Presidents or Senators according to the original design in a long long time. Second, because the Framers simply couldn’t possibly have foreseen our modern circumstances in 1787.

Further, we agree doing much about any of this is essentially impossible. The Framers, for understandable reasons given the nature of the Confederation as it stood, made it incredibly difficult to amend the Constitution. Indeed, there have a mere 27 Amendments in the 231 years since ratification and that vastly overstates how often there has been real change.*

Like Steven, I would support a rather significant expansion of the size of the House of Representatives. This would be fully in the spirit of the Constitution and, arguably, is actually required by the Constitution. In addition to making the People’s House more representative, it would at least help tweak the Electoral College’s imbalance.

I’m also amenable to systemic fixes to the Supreme Court, such as proposals to allow the appointment of two and only two Justices per Presidential term. So long as that were done prospectively—taking place after the expiration of the current Presidential term—it would help address some of the inequities of the system and also alleviate the angst about octogenarian Justices and the unseemly practice of attempting to hang on until a President of the right party is in office to retire.

So, why not simply agree to “packing” the Court by adding, say, five Democratic Justices? After all, as Steven notes, most of the current Justices were picked by Presidents who didn’t enjoy plurality support. Because it breaks the system.

My preference would be for the Supreme Court to have a much smaller role than it has had in recent generations in shaping public policy. Issues like abortion, gay rights, transgender rights, and the like should be settled through the political process by the elected representatives of the people. But, alas, not only has that ship sailed but, as already noted, the system is inherently less-than-representative.**

Because it has taken on such a huge role, the Court has been a lightning rod for a long, long time. “Impeach Earl Warren” was a popular slogan in the South long before I was born. But, by and large, the Court has been perceived as legitimate by the people and obeyed by policymakers because of that. Even Richard Nixon and Donald Trump complied with their decisions.

Further, despite the above-noted flaws in our system, the Court has by-and-large been organic, slowly responding to the election returns. Here are the nine Justices from the most recent term, including the dear, departed Justice Ginsburg:

NameYearPresident
Clarence Thomas1991GHW Bush
Ruth Bader Ginsburg1993WJ Clinton
Stephen Breyer1994WJ Clinton
John Roberts2005GW Bush
Samuel Alito2006GW Bush
Sonia Sotomayor2009BH Obama
Elena Kagan2010BH Obama
Neil Gorsuch2017DJ Trump
Brett Kavanaugh2018DJ Trump

There has been a steady ebb and flow. All of the Reagan Justices have died or retired and only one appointee of GHW Bush remains on the Court—and he was born 15 years after Ginsburg. Ginsburg was not only the oldest Justice on the Court she was the longest-tenured Democrat and the second longest-tenured overall. Breyer is widely presumed to be the next to retire, with the assumption that he’s holding out for a Democratic President to appoint his replacement. The remaining Justices, appointed over the last fifteen years, are expected to remain on the Court for years to come.

With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.

Otherwise, the fact that it is Trump per se appointing multiple Justices is not illegitimate to me, any more than Jimmy Carter’s not getting a single appointment was. He’s the duly elected President and he had every right to appoint Justices to fill vacancies that arose.

Adding four, five, or however many Justices necessary to turn the Court into a rubber stamp for Democratic policies, however, turns the system on its head. Yes, it would be perfectly Constitutional. But it turns what has forever been a steady, organic process into a farce.

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*Eleven of the 27 (1-10, 27) were proposed by the first Congress as part of the Bill of Rights that was promised during the negotiations of ratification. Three (13-15) were a direct consequence of the Civil War. Two others (18 and 21) established and ended Prohibition. That leaves only 11, many of which were the equivalent of software updates to fix bugs.

**To be sure, there’s an argument for devolving many of these issues to the states rather than federalizing them. While that was the default position of our system for most of its existence, our modern society is simply much too interconnected for that to work on many issues.

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FILED UNDER: *FEATURED, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. KM says:

    No. Just, no. This is like telling an abused spouse to not make a scene in public after being smacked one too many times. The line has been crossed.

    The GOP doesn’t get to demand Dems respect norms and legitimacy while insisting they respect REPEATED violations of that legitimacy. This will the SECOND SC seat stolen, against norms and legitimate traditional behavior, by the same President and party with half a decade. That they are blatantly disregarding the same “logic” that let them steal the first to steal the second is them saying “F norms, we have power and that makes it legitimate”. After all, it’s legal right? Therefore, it’s legit. That’s the norm now James – he who has the reigns of power determines the legitimate norm. That’s Trump’s legacy and it’s just as fair and proper to expect a following POTUS to have the same liberties you are excusing for this one.

    He’s the duly elected President and he had every right to appoint Justices to fill vacancies that arose.

    Then Biden has every right to fill vacancies as well when he’s POTUS, including those he creates to fill. POTUS can expand the court, that’s legal – it’s just not something you accept as legitimate. Just because it “breaks the system” that’s already been broken twice in recent memory doesn’t mean it can’t be broken a third time. What’s good for Trump is good for Biden. Trump’s the one endangering the Court by tossing out all sense of propriety by pushing through a Justice less then 45 days before an election.

    I really don’t think you understand how *pissed off* Dems are about this. It’s one last FU-I-Do-What-I-Want too far, even for some conservatives and moderates I know. They cannot believe she’s not even cold and in the ground before he’s demanding she be replaced. The sense of disrespect and power grubbing is real; it’s only that some conservatives are pleased it might get rid of Roe while others rightly fear it means democracy as we know it on it’s way to its end. They understand that Trump screwing with the SC so blatantly will invite retribution by a Dem POTUS they fear might win… what’s the point of only getting one Justice when Biden can add 2 or more?

    He’s the one tossing the legitimacy of the Court into disarray but Dems need to just suck it up for decades because they’re supposed to be the adults in the room? Oh hell no – a real adult would spank the everliving shit out of such a troublesome brat and do what’s necessary so it doesn’t happen again. If that means expanding and modifying the SC, so be it. This is the act of a stupid, desperate man… and if his new Justice is the one who decides he’s POTUS in a contested election he’s clearly not the winner of? James, this country will not survive the wave of anger that will cause. Court packing might be the only way we ensure there is an America to debate about this in.

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  2. drj says:

    Because it breaks the system.

    The system is already broken.

    An ever shrinking part of the population gets to nominate ever more extreme justices who make decisions that ever further hamstring the ability of the majority to legislate – or even be adequately represented in Congress.

    The current system is the permanent entrenchment of minority rule.

    And that doesn’t even address the “one set of rules for thee and another set of rules for me” hypocrisy.

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  3. Moosebreath says:

    @KM:

    Exactly. As the Declaration of Independence put it:

    “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.”

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  4. James — you presume that the system, with notably rare exceptions, is mostly working.

    Most of the commentariat here probably thinks (myself included) thinks that the system is, with notably rare exceptions, not working. Under the current implementation of the rule set, one party can routinely gain complete power with only minority support. Under the current implementation of rules, the other party can routinely win significantly more votes and be hamstrung from governing and if it can pass significant chunks of its agenda, it can and will be tossed by minority imposed justices for batshit insane reasoning. This is fundamentally a consent of the governed problem.

    This is a fundamentally unstable equilibrium. Expanding the court and adding states are well within historical precedent to find new equilibriums that allows for a party that has consistent majority support at the presidential level to actually govern. And these are proposals within the current rule set. That is a much better set of proposals than proposals that are outside of the current rule set which is where states and majorities that are consistently made to be sucker in a rigged game will go if changes within the current possibility space can’t/won’t unrig the game.

    And telling women, people of color, and people of non-cis-hetero identities or presentations that they need to win political arguments and seize political power in order to have political representation and rights is fucking obtuse. The system, as Wisconsin shows, can be designed to be extraordinarily counter-majoritarian if cynically designed against large, popular majorities. Talk to your comparativist colleagues about how they would analyze Wisconsin if it was on another continent.

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  5. Moosebreath says:

    Josh Marshall nails it:

    “The most flagrant GOP lawlessness and rules breaking is **expected**. Democrats even suggesting responding something like in kind is “total war.””

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  6. Sleeping Dog says:

    The Constitution leaves it to Congress to determine the size of the SC. Over our history the size of the court has been changed 6 times over our history. No reason it can’t change again. Arguments either way are simply politics masquerading as principles.

    Perhaps Congress should decrease the size of the SC and dismiss the newest members. The SC membership has been reduced before.

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  7. Scott F. says:

    I’ll second everything @David Anderson says here. But, I’d like to note one other thing about the current rule set.

    He’s the duly elected President and he had every right to appoint Justices to fill vacancies that arose.

    “Duly” is highly contestable used to reference Trump’s being entitled to fill RBG’s seat. Set aside the inverted result due to the EC and you still have this power vested in a man who our intelligence agencies tell us was aided in his election by a hostile foreign power, who the Mueller report tells us at the very least welcomed the aid, who was impeached for attempting to use another foreign country to aid his upcoming election, and who is only still in office now due to the acquiescence of the minority supported Republicans of the Senate.

    All “apparently” within the rules, but illegitimate nonetheless.

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  8. Michael Reynolds says:

    What @KM said.

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  9. KM says:

    To be fair to our host, I do understand where he’s coming from. He’s tired of this too and wants it to stop. They got away with some bad things because of rules lawyering and technicalities but they’re legal so we have to accept it and move on. The Trump years are a horrible aberration of decorum and lawlessness, thank God it seems to be almost over and sane people might be in charge again. Let just stop the insanity, let the reasonable adults be in charge and get back to normal. Dems traditionally want to restore a sense of normalcy after GOP criminality (looking at you Nixon and Bush) so they will try to govern with a type of conciliatory norm adherence.

    That’s not a bad thing. The problem is, it’ enabling the bad GOP behavior and we’re stuck in a vicious governmental downspiral because every time, there’s more broken norms Dems get screwed adhering to and more GOP ratfucking goes unchallenged to become precedent and norm. As @Moosebreath cited, it’s expected for the GOP to be terrible criminals and the Dems to be long-suffering abused enablers that cannot speak up or do anything out of line. I said it before – that’s an abusive relationship and it’s entered the destructive phase. The abuser is wrecking the house, beating up family members, ruining the household finances and laughing at the poor spouse who dares to try and tell them no. When the abused person tries to leave, suddenly it’s DRAMA and HOW DARE YOU and YOU CAN’T DO THAT TO ME with a large helping of WHAT ARE YOU MAKING ME HIT YOU? Family and friends are chiding the abused person with admonishments about how you can’t leave your marriage as that’s a terrible thing to do. You can’t report them to the police – what kind of spouse calls the cops on their loved one who’s just having a hard time right now? Don’t cause a fuss as it’s more trouble then it’s worth. Work within your marriage to solve the problem; you don’t need extreme measures like couples therapy or restraining orders!

    There’s only a few ways something like this ends, almost all tragic. We cannot return to normal because this *IS* normal – the GOP destroying things and the Dems being forced to mop up what they can before the next tantrum. This isn’t 4 years of insanity – it’s part of a normalized cycle in America that’s reaching critical mass. Additional SC Justices actually helps defuse the cycle by spreading out some of the damage and allowing a longer recovery time for system norms to get back to pre-Moral Majority destructive levels. We want to see amicable politics again? Take contentious scenarios like the fate of the nation 45 days before an election due to the death of a single judge out of play. More judges means this would never have happened and we wouldn’t be looking at some bad times up ahead…..

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  10. Not surprisingly, this inspired another post.

    But to address a couple of things I didn’t address there:

    “Impeach Earl Warren” was a popular slogan in the South long before I was born. But, by and large, the Court has been perceived as legitimate by the people and obeyed by policymakers because of that. Even Richard Nixon and Donald Trump complied with their decisions.

    Two quick thoughts:

    1. Who is that you think will not follow Court rulings under this hypothetical future?
    2. I am not so sure that a lot of people in the South in the 50s and 60s saw the Court as legitimate in the way that you are concerned about here.

    But it turns what has forever been a steady, organic process into a farce.

    This is an understandable, small-c conservative view. But my question is whether that steady, organic process is produces just results? I am to the point that I don’t think it does.

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  11. @James:

    One more thought: I would be interested in you writing more about your views of legitimacy and what is means. While I understand the efficacy of the term, it is also one that I have long found to be analytically difficult to nail down, especially in conversations such as this.

    What does it actually mean for an expanded Court to be “illegitimate”?

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  12. Teve says:

    I’ll just mention here again the game theory contest Prisoner’s Dilemma. You can cooperate with the other side or burn them. There have been competitions where thousands of algorithms have been tested against each other. The most successful algorithm for playing the game is called tit for tat. You treat the other side nice. If they burn you once, you burn them back once. If they treat you nice, you treat them nice. Proportional reward for cooperation and proportional punishment for betrayal coerces the other side into cooperating. Algorithms that always cooperate get stomped.

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  13. ptfe says:

    @Sleeping Dog: “Perhaps Congress should decrease the size of the SC and dismiss the newest members. The SC membership has been reduced before.”

    It seems to be Constitutionally disallowed to dismiss members of the SC, unfortunately, except by impeachment. In a strict Constitutional sense, the other fungible element is each judge’s role – that is, the SC is said to exist Highlander-esque, but it otherwise does not prescribe how SCOTUS functions internally.

    Congress could pass a structuring law that sunsets justices while keeping them “in the court”. Maybe you do something like add 1 justice every 2 years but preserve the “active court” as 9 members, with all others waiting in the wings. Also enforce that this year’s appointment couldn’t rule until 2 years from now (which prevents anything like this year’s election possibly being screwed with by a not-at-all-independent appointment), and they’re active for 18 years. Vacancies are not filled by the current president but by the junior inactives, incentivizing judges to move on after 24 years because they’re unlikely to be called up. This preserves prospective lifetime appointments (thereby meeting the bare minimum Constitutional rule), and it better reflects the recent history of presidential & senatorial elections.

    I’m just spitballin’ here.

    But ultimately I think the idea of preserving the extremely flawed current system is asking for even more damage in the coming 20 years. Republicans have shown no desire to operate within rules – written or unwritten – unless they fear breaking those rules will lessen their power and/or cash flow. They aren’t going to turn their vapid appeals to morality into actual ethical standards, so they need to be treated as the amoral, selfish children they are.

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  14. EddieInCA says:

    @JamesJoyner

    Because it breaks the system.

    Here is where you lose most of us. The system is broken already. We’re trying to fix it. You know it’s broken but want to keep it as is, and add a little duct tape and wire to hold it together. We want the structural change that fixes the two decades of inequities.

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  15. ptfe says:

    (Edit isn’t working for some reason, but that should be 18 years and 22 years, not 9 years and 15 years. But you get the idea.)

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  16. DeD says:

    While understandable, this would permanently end the legitimacy of the judiciary and undermine the delicate balance that has held the nation together.

    James, that ship sailed a couple years ago. I should finish reading the post, though.

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  17. Michael Reynolds says:

    @Steven L. Taylor:
    There is only one basis for legitimacy in government: the will of the people.

    The will of the people is being ignored and subverted, and mostly within the limits of the Constitution. The Constitution, the opening phrase of which is an assertion of legitimacy, We the People, is now such an irrelevant, shambling wreck that it is an impediment to legitimacy. And guess what? There’s no way to fix it.

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  18. MarkedMan says:

    James, I suspect that you have just spent too many years living in the Republican bubble, the place where loyal GOPers sit around having serious discussions about whether there was any racial dog whistling intended by Ronald Reagan’s “States Rights” campaign kickoff at the site where three young civil rights workers were murdered, and after long and serious and concerned discussion conclude that, no, it might have unfortunate appearances but the days of racism are long past us. Or sit around having concerned and serious discussions about whether any politics were involved in the five Republican justices stopping vote counting in Florida and taking it upon themselves to declare the Republican candidate president and conclude that, no, it was a wise but tough decision and by the way it is now in the past and we all should just do the sensible thing and stop bringing it up.

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  19. wr says:

    “With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady.”

    …other than that, Mrs. Lincoln, what did you think of the play?

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  20. EddieInCA says:

    With the exception of the unseemly power play that denied Obama a third Justice and held it open for Trump, this process is entirely reasonable and steady. Trump’s replacing Ginsburg, too, would be perfectly normal aside from the precedent that held open the seat that went to Gorsuch.

    That this doesn’t bother you more is really troubling, Dr. Joyner.

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  21. Michael Reynolds says:

    @EddieInCA:
    @James has come a long way, but like all the Never-Trumpers, he has not yet come to grips with his own complicity. Republicans have been race-baiting since at least 1968 and scarcely a word from so-called ‘decent Republicans.’ They were conveniently deaf until Trump raised the volume on racism from dog-whistle to jet engine exhaust. Quiet in the face of racism, quiet in the face of misogyny, quiet in the face of gerrymandering.

    Sure, we agreed to the 2 and agreed to add it to another 2, but we are shocked and appalled that the result was 4!

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  22. EddieInCA says:

    @Michael Reynolds:

    Watching the Sunday shows, I’m have more of the belief that McConnell won’t have the votes. I have Romney, Murkowski, and Collins as nos. That means they need one more. Sasse? Lankford? Lee? Portman? Toomey?

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  23. JohnMcC says:

    During previous episodes of profound national disunity and rivalry the Court (and courts) have been shuttlecocks. Jefferson ran against Adams’ ‘midnight judges’ (the Judiciary Act of 1801 which also reduced the Supreme Court to 5 Justices and countered it when elected with the Judiciary Act of 1802). A good deal of the regional rivalry regarding the South was fought over how to arrange the various Circuits and these were shifted back and forth with the tides of that conflict. Andrew Johnson signed a ‘Judicial Circuits Act’ in 1866 in which the number of Justices was reduced to 7 (altho the total number seems to never have been less than 8 because of the Constitutional requirement regarding removing a Justice which our friend ptfe notes above).

    The current number was determined in the Judicial Act of 1869. So it has been nine through Reconstruction, the Gilded Age, the Great Depression and two World Wars. I can’t think of anything about the history of the US that makes post-1869 ‘legitimate’ and pre-1869 ‘illegitimate’. Nine is what we’re used to which lends a sort of ‘legitimacy’. But the real events demonstrate that changes to the court system are the actually the ‘legitimate’ (Constitutional/historical) status.

    Sadly rearranging the judicial system is what happens when America is at complete loggerheads. Historical experience seems to indicate that this is what we do in the period before we draw guns on each other. But the reason for the emergence of violent solutions is not the number of Justices. The reality is that conflicts that lead to civil war find their way into the judiciary. Intractable conflict precedes judicial rearrangements not the other way around.

    The question those who favor expanding the Court have to answer is ‘do we think the national conflict is so serious that we want to expand the field to include Justices and judges?’

    Seems to me that the Republican side has demonstrated that they are indeed set on victory without compromise. They seem to be declaring that Democrats and the liberal/progressive side of the electorate has no legitimacy.

    I vote for 13 Justices, one for each Circuit, as HL92 suggested. It’s a reasonable ‘stopping point’ that would make any effort to nominate dozens of Federalist Society candidates less ‘legitimate’ for the next R-party administration.

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  24. Michael Reynolds says:

    @EddieInCA:
    I don’t think Collins will vote no. She’s a jellyfish. AFAIK Romney hasn’t spoken. I trust Murkowski, but that’s just one vote.

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  25. Sleeping Dog says:

    @EddieInCA:

    Don’t forget Gardner, who is in a tough campaign and in the past Grassley has indicated that the Senate’s action on Garland should be applied in a similar situation arose again.

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  26. MarkedMan says:

    @EddieInCA:

    I have Romney, Murkowski, and Collins as nos.

    Collins very carefully did not say “no”. She said she would not be in favor of holding a vote. She has no power to stop such a vote, as it will be up to the Judiciary Committee and McConnell. It was no accident that she didn’t say she would vote against a nomination brought to a vote.

    This is just of the Collins shuffle, just more of her being “concerned”.

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  27. wr says:

    @EddieInCA: “I have Romney, Murkowski, and Collins as nos.

    I’m not convinced about Collins. Her statement was typical weaselspeak, similar to her deep concern about Trump’s treason before she voted against witnesses.

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  28. Just nutha ignint cracker says:

    Somebody is going to have to help me out here because I can’t find the quote, but since the news of Ginsberg’s passing in reading the 5 or 6 different posts about it, I’ve been haunted by a quote I remember encountering. I believe it’s from Henry Clay and has to do with what happens to strings that are pulled taut or kept pulled taut–I’m not sure of the detail there.

    I bring this up because while the forces who were willing to during my teen years failed, I think we may have come to the point of being too ignorant and feckless to avoid burning the country to the ground this time. Maybe the next civil war will learn the lesson from the last one. Trying to keep the country intact was a mistake. The whole “malice toward note/charity for all” thing was met by roughly 160 years of increasing malice til we’re here.

    But it’s legal, so that makes it all okay, right?

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  29. DeD says:

    Yes, it would be perfectly Constitutional. But it turns what has forever been a steady, organic process into a farce.

    No, not a farce, James. It’s an appropriate response to the flagrant and raw unscrupulous power grab by Mitch McConnell and the GOP. A balance has to be brought to the system, and that doesn’t mean a partisan rubber stamp for the Democrats. Do you consider Merrick Garland as such?

    Let’s face the facts: it’s been quite a while since the Democrats have executed blatant Tammany Hall-type corrupt politics. Though I consider Justice Sotomayor to be more left leaning in her judicial thinking, I think she and Justice Kagan are well within the boundaries of reasonable jurisprudence. It’s the GOP that is packing the court for a desired outcome. I sense the traditional Republican accuse-your-enemy-of-doing-that-which-you’re-doing in your argument.

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  30. Gustopher says:

    What about slowing every federal court appointment for 8 years through the Obama administration, so they can shove through countless right wing ideologues throughout the judiciary?

    The Supreme Court is just the tip of the iceberg.

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  31. Moosebreath says:

    @Gustopher:

    “What about slowing every federal court appointment for 8 years through the Obama administration, so they can shove through countless right wing ideologues throughout the judiciary?

    The Supreme Court is just the tip of the iceberg.”

    Or playing Calvinball with blue slips, so that 2 are needed when a Democrat is in the White House, and 1 or none when a Republican is.

    Leaving the Federal Court system, we can include changing the powers of a state’s governor in a Republican controlled lame duck session after a Democrat is elected, as happened in Wisconsin and North Carolina. Or mid-decade redistricting once Republicans gain a state trifecta, as has happened several times, starting with Texas in 2005.

    The country’s norms have been broken too many times, and too often by Republicans in the last few decades.

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  32. MarkedMan says:

    With Dems in power, Trump’s two or three Justices should be rigorously investigated. If it can be proven they cut a deal and/or lied during their nomination process they should be impeached and removed and subjected to perjury charges. If that hurts the feelings of the gun nuts, racists, climate deniers and other losers on the right, too bad.

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  33. Scott O says:

    @Just nutha ignint cracker: This?

    “If you did this as the first step towards the unleashing of war, well then, it is evident that nothing else is left to us but to accept this challenge of yours. If, however, you have not lost your self-control and sensibly conceive what this might lead to, then, Mr. President, we and you ought not now to pull on the ends of the rope in which you have tied the knot of war, because the more the two of us pull, the tighter that knot will be tied. And a moment may come when that knot will be tied so tight that even he who tied it will not have the strength to untie it, and then it will be necessary to cut that knot, and what that would mean is not for me to explain to you, because you yourself understand perfectly of what terrible forces our countries dispose. ”

    https://microsites.jfklibrary.org/cmc/oct26/doc4.html

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  34. Gustopher says:

    Legitimacy hangs in the balance.

    I think legitimacy has been lynched.

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  35. An Interested Party says:

    My preference would be for the Supreme Court to have a much smaller role than it has had in recent generations in shaping public policy. Issues like abortion, gay rights, transgender rights, and the like should be settled through the political process by the elected representatives of the people.

    Due to a variety of factors, SCOTUS has to shape public policy because Congress has been derelict in its duty to make public policy…

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  36. Tlaloc says:

    I don’t support court packing either, but only because I favor dissolution of the US entirely. The constitution is far to archaic and inflexible to function today in a healthy way.

    Time to split it up and take the best aspects of the American experiment forward into new smaller governments.

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  37. Tlaloc says:

    The electoral college has rendered the presidency illegitimate. Gerrymandering has rendered the House illegitimate. The nonsensical idea that empty acres deserve representation has rendered the Senate illegitimate.

    Now the GOP has finally violated the legitimacy of the Judicial branch.

    The military attacked peaceful protesters at the behest of the “president.”

    There’s no part of our federal government that has any right to ask for support of the people.

    Time for it to go. As an Oregonian I’d like to see CA, OR, and WA to form a new nation (with the option of more western states joining if they want). If the rest of the current US wants to stay one unit, that’s up to them, but I think they’d be better off splitting into at least two but probably more nations.

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  38. Teve says:

    @Tlaloc: eastern WA would/should split off from the new country and join the Trumpers in Idaho.

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  39. JohnMcC says:

    @Tlaloc: The great state of Tennessee straddles the US from the eastern continental divide to the Mississippi river. They call their lovely land ‘the three states of Tennessee’. In your plan they would in fact become 3 states.

    South Florida is referred to as ‘the capital of the Caribbean’. In your plan it might well secede and REALLY become the capital of the Caribbean.

    In other words, you are an idiot.

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  40. Teve says:

    @JohnMcC: I don’t think he said anything about those states. Did I miss something?

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  41. Hal_10000 says:

    I can see where people are coming form, but packing the Court doesn’t “fix the balance” of the system. It simply escalates a situation that has been building for 20 years, getting its biggest kickstart when the 108th Congress filibustered Bush judicial nominees, hoping he’d lose the election. What do you think is going to happen when the GOP gets power back? Will they not pack the Court with their own judges? You’re going to make things worse not better. Think harder.

    (And to those of you about to say, “but Republicans filibustered Obama’s nominees!”), look into the Congressional Research report on this. The 108th Congress was the worst at this and it was pretty much unprecedented. The 112th was about as half as bad at which point Reid started immediately invoking cloture on every nomination, even those passed unanimously. We’ve been escalating ever since.)

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  42. Hal_10000 says:

    There is a case for a larger Court where each vacancy is less of an apocalypse. But you can’t do that with just one party. If Biden proposes, say, adding six seats and committing to putting two or three conservatives in there, a sane GOP might accept it. Of course, we don’t have a sane GOP.

    But honestly, I think the best solution here is term limits. 18 years. Replace every 2 years. Interim judges if someone croaks or retires between appointments. Each President gets two. A lot less drama.

    And really, the bet solution is for Congress to reclaim their responsibilities and stop out-sourcing legislation to the judiciary.

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  43. Barry says:

    @EddieInCA: “Watching the Sunday shows, I’m have more of the belief that McConnell won’t have the votes. I have Romney, Murkowski, and Collins as nos. That means they need one more. Sasse? Lankford? Lee? Portman? Toomey?”

    Collins and Murkowski specialize in loudly protesting ‘No!’ and then actually voting {yes}.

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  44. Raoul says:

    The Republican broke the norms so it woud be folly for Dems to continue them. Also the decisions themselves have been highly questionable from Bush v. Gore to the gutting of the Civil Rights Act on and on. The Supreme Court has gone out of its way nullifying laws passed by the representatives of the people.

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  45. al Ameda says:

    @EddieInCA:

    Watching the Sunday shows, I’m have more of the belief that McConnell won’t have the votes. I have Romney, Murkowski, and Collins as nos. That means they need one more. Sasse? Lankford? Lee? Portman? Toomey?

    I trust Murkowski for No – Susan Collins and Mitt Romney no-so-much. Grassley, Sasse and Alexander are spineless. Toomey, Lee, Langford and Portman? I have a hard time seeing any of those guys flipping.

    Hoping for a miracle, but I don’t see more than 2 – Murkowski and either Collins or Romney.

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  46. An Interested Party says:

    But honestly, I think the best solution here is term limits. 18 years. Replace every 2 years.

    Talk about “think harder”…I’d love to know what majority of SCOTUS would rule that judicial term limits are constitutional…

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  47. Gustopher says:

    @Teve:

    eastern WA would/should split off from the new country and join the Trumpers in Idaho.

    They should join Idaho now. Cede Eastern Washington to Idaho, and they will be happier (they will get the Republican state government they always vote for), and the folks in Western Washington would be happier (not paying taxes to support those meth-toothed mouth-breathers).

    We can dynamite Steven’s Pass to keep them on their side.

    Ok, but seriously, they would be happier, and we would be happier, and it wouldn’t affect the Senate. There would be a slight change in the Electoral College, but it would actually make it more representative (Eastern Washington — I mean, Western Idaho’s votes would actually matter), so it would be a good thing.

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  48. Gustopher says:

    @Hal_10000:

    You’re going to make things worse not better. Think harder.

    You cannot get to a just compromise until all sides want change.

    And, instituting that level of reform cannot be done with amending the constitution, so it’s likely a non-starter even if Republicans were willing to compromise in good faith.

    I’d prefer 2 judges per term, and the court fluctuates in size. If we end up with a tie, we end up with a tie.

    And a requirement for a vote on all SC nominees after 90 days, lower court nominees after 45, or the Senates advise and consent is implicitly given. And a throttle on the rate of nominations.

    But to get there, we have to make the Republicans eat a shit sandwich, so they will want to get there.

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  49. Moosebreath says:

    @Gustopher:

    Not sure I agree with most of your prescriptions, but “But to get there, we have to make the Republicans eat a shit sandwich, so they will want to get there.” is exactly right. Until Republicans are made to feel some pain, they will keep breaking larger and larger norms.

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  50. Teve says:

    @Hal_10000:

    It simply escalates a situation that has been building for 20 years, getting its biggest kickstart when the 108th Congress filibustered Bush judicial nominees, hoping he’d lose the election.

    You mean the 10 judicial nominees that the 108th Democrats filibustered?

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  51. Kurtz says:

    @Hal_10000:

    And really, the bet solution is for Congress to reclaim their responsibilities and stop out-sourcing legislation to the judiciary.

    One time I looked at the history of the August recess on the Senate. Gov website. It said that as legislating became a year-round job, it became necessary to give everyone a break. Boohoo. That’s pretty much everyone’s life until they’re too infirm to do anything.

    Fuck that. Congress is a hive of bums, and mostly because of Republican politics.

    The point you’re making is the solution to regulation as well. The GOP bitches about over-regulation when they played a part in crafting bills and then passing them. If the executive branch is doing things they shouldn’t, Congress can amend the laws that gave the executive in the first place.

    But that would require work, You know, like a real job.

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  52. Just nutha ignint cracker says:

    @Scott O: No. The one that I am thinking of was definitely related to pre-Civil War politics and had to do with the idea that a string pulled taut eventually breaks. Your quote is about 120 or so years after the time of mine. It was a good thought for the period and situation, though.

    @Gustopher: Well, that IS why it’s hanging (or is that hanged?)–just not in the balance, as it were.

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  53. Just nutha ignint cracker says:

    comment deleted by cracker. Information inaccurate.

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  54. James Joyner says:

    @KM:

    This will the SECOND SC seat stolen, against norms and legitimate traditional behavior, by the same President and party with half a decade.

    Assuming it even happens, I count ONE seat. If one takes the view that Presidents are entitled to fill Supreme Court vacancies at any point in their term, then Obama should have been able to pick the vacancy created by Scalia’s death. But it naturally follows that Trump should therefore get to fill the RBG seat. Conversely, if you agree with the “Biden Rule,” then Trump rightfully filled the first seat and this seat should remain open until we know who will be President in January. It takes a lot of contortion to think Democrats should have been able to fill both with divided governnent. And, frankly, less to argue the Republicans should have been able to fill both.

    @David Anderson:

    Expanding the court and adding states are well within historical precedent to find new equilibriums that allows for a party that has consistent majority support at the presidential level to actually govern.

    Point me to that history. Changing the size of the court for partisan purposes has been taboo now for nearly two centuries. States have been added to the union on a party equity basis for nearly as long.

    @Sleeping Dog:

    Perhaps Congress should decrease the size of the SC and dismiss the newest members. The SC membership has been reduced before.

    Again, none of this has happened in two centuries plus. And, even then, it was to not fill vacancies. The Constitution is clear: Justices serve for life.

    @Teve:

    Proportional reward for cooperation and proportional punishment for betrayal coerces the other side into cooperating.

    We’ve been playing Tit-for-Tit since at least the Bork hearings. But packing the Court is a disproportional response.

    @wr:

    …other than that, Mrs. Lincoln, what did you think of the play?

    My point is that, like @KM above, Democrats are double- and triple-counting. If Trump fills the Ginsburg seat, there’s an argument ONE seat was stolen. If Biden fills that seat, I’d argue we’re back to square one. Some are counting the two GW Bush picks as illegitimate, which I just don’t buy—especially since they both came after he was re-elected by a majority of the voters.

    @EddieInCA:

    That this doesn’t bother you more is really troubling, Dr. Joyner.

    It bothers me only because of the timing. I think it’s perfectly reasonable for an opposite-party Senate to deny the President a Supreme Court seat with an election hanging in the balance. Had Scalia died, as Ginsburg did, in September, I’d have supported the move. But he died in February and a replacement was named in March. That’s a bridge too far.

    @Michael Reynolds:

    quiet in the face of gerrymandering

    Aside from the fact that I’ve called out gerrymandering and racially-based suppression techniques for quite a number of years, this really is a both-sides situation. Democrats have likewise used every tool at their disposal to rig the game in their favor. They haven’t used voter suppression in recent years because it doesn’t favor them.

    @DeD:

    It’s an appropriate response to the flagrant and raw unscrupulous power grab by Mitch McConnell and the GOP. A balance has to be brought to the system, and that doesn’t mean a partisan rubber stamp for the Democrats.

    So, again, I think we’re at zero. If Biden gets to fill RBG’s seat, then Gorsuch is really no harm, no foul. We get to ONE if Trump gets to fill RGB’s seat and goes on to lose the election. Adding, say, FIVE Democratic seats would absolutely not balance that out—it would radically change a balance that has been arrived at over a quarter-century of appointments.

    @Gustopher:

    What about slowing every federal court appointment for 8 years through the Obama administration, so they can shove through countless right wing ideologues throughout the judiciary?

    They were more aggressive about it but were doing exactly what Harry Reid and the Democrats did in the second Bush term. It’s been Tit-for-Tat for years, with steady escalation. I think Merrick Garland was a disproportionate response but not a nuclear one. I think massive court packing would be nuclear.

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  55. wr says:

    @Hal_10000: In other words, the only acceptable solutions are the ones that are impossible to bring about, while any suggestion that can be enacted is off the table.

    Moscow Mitch couldn’t have said it better!

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  56. wr says:

    @James Joyner: “And, frankly, less to argue the Republicans should have been able to fill both”

    In both cases, the Republicans invent rules that only apply when they want them to, and only in their favor. And so both seats are stolen because there are no actual rules.

    Basically, if you’re cheating at poker but you actually one won hand without cheating, no one’s going to let you keep that pot when they take the rest back.

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  57. KM says:

    @James Joyner:
    It’s two because by their own stated logic in both cases, their other case is invalid. They claimed one set of standards to get a seat that rightfully was Obama’s to appoint and then turn right around and claim its opposite day to try and get this one. THEY are the ones telling the world they’re stealing multiple seats by blatantly changing the rules to let them win – I would acknowledge RBG’s spot was Trump’s to fill if they hadn’t decided head’s they win, tails we lose.

    I see @wr beat me too it with a great analogy. Cheaters don’t get the benefit of the doubt for a “legit” win that happens under circumstances they’ve fraudulently manipulated. That’s what happens when you poison the well, James – sometimes you need to drink from it yourself and screw yourself over. If they back down and let Biden appoint RBG’s successor, they can have their stolen seat as it’s paid for by their legit one. They can see it as getting an advance on a future opening, not a BOGO.

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  58. wr says:

    @KM: “I see @wr beat me too it with a great analogy.”

    And I was going to say that you explained my point much more clearly than I had!

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  59. Jim Brown 32 says:

    @James Joyner: It all about how you approach it James. All Biden would have to do is appoint a bi-partisan committed to come up with a list of 10 candidates. He picks 4 to be added to the Court–“legitimacy’ problem solved. In other words, as my Grandmother used to say: Go pick what you want for me to give you this ass-whoopin with.

    This is what escalation with exit ramps to de-escalation looks like. It also makes Democrats look more like good-faith actors should the Republicans try to expand the Court in retaliation.

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  60. Jim Brown 32 says:

    @Jim Brown 32: Biden also would have a chance to establish the Court with an independent identity as true 3rd party brokers.

    It is entirely unacceptable for a “Judge” to be completely predictable in the way they vote. How are they different that partisan legislators? I would expect a Judge, someone with incredible insight and reasoning to find ways to both perceive and apply the law that average people simply haven’t considered. That’s not what we have on the court today. They goes for both the Conservative rubber stamps and the Liberal ones.

    Biden could really do this nation a square if he put 4 purple judges on the court.

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  61. @James Joyner:

    Okay, you proved that you’re purer than all of us who have been told to shut up and take it.

    States were often introduced for partisan gain after the Civil War (Washington State, Montana, Wyoming, North and South Dakota in a very tight cluster produced 10 first term GOP Senators)

    Right now the system in the US is set up that a minoritarian party can and will routinely have complete political power in both the short term and then be able to implement structural veto points in the Supreme Court for when a party that routinely has majoritarian support can’t implement its agenda on batshit insane reasoning (Shelby County, NFIB v Sebelius on both the mandate and Medicaid expansion holdings etc).

    If McConnell held true to the Garland rule, that is fucking shitty rule but consistent. But announcing that he is going to fill the seat is a declaration of 2 things:

    A) Power is all that matters
    B) The new norm is 51 and fuck you.

    So yeah, highly likely that McConnell can seat a reactionary. And Democrats have the choice of being either the Washington Generals or choosing to use constitutional powers to protect their own interests.

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