Bernie Sanders Wants to ‘Rotate’ Conservatives Off Supreme Court

The Vermont Senator has a bizarre alternative to court packing.

In last night’s Democratic debate, a leading contender for the nomination offered a Constitutionally suspect plan for ensuring abortion remains protected.

Sen. Bernie Sanders (I-Vt.) on Thursday night floated the idea of rotating Supreme Court justices to other courts to bridge the current ideological divide.

“I do not believe in packing the court,” Sanders said during the second of the first two 2020 Democratic presidential debates. “We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”

Sanders made the comments while addressing a question posed about what he would do as president if a conservative-led Supreme Court struck down Roe V. Wade, the landmark ruling that established the right to an abortion.

[…]

This isn’t the first time Sanders has offered the idea rotating Supreme Court justices.

“What may make sense is, if not term limits, then rotating judges to the appeals court as well,” Sanders said at the We the People summit in Washington in April, according to CNN. “Letting them get out of the Supreme Court and bringing in new blood.”

Preet Bharara, who once served as U.S. attorney for the Southern District of New York, questioned the idea, asking on Twitter whether he was “missing something.”

A Sanders spokesperson told The Hill that Sanders’s plan to reform the courts “would be to rotate Supreme Court justices down to circuit courts after a set term limit, serving out the remainder of their lifetime appointment in lower courts.”

“Bernie believes if we were to pack the court, Republicans would simply do so the next time they gained power,” the spokesperson said. “Bernie’s plan would only require an act of Congress.”

The Hill, “Bernie Sanders says he would move to ‘rotate’ Supreme Court justices if elected

Sanders is right that any plan by Democrats to pack the Supreme Court if they take control of the White House and Senate would backfire. Not only would Republicans follow suit the instant they had the chance but the legitimacy of the courts as independent arbiters—granted, already on shaky ground—would be destroyed forever.

But his alternative is just . . . nutty. There’s no way around it.

Yes, the Constitution allows Supreme Court Justices to serve as Circuit judges. Indeed, it was common practice in the early days of the Republic. But neither the President nor the Congress has the authority to remove a Supreme Court justice from his seat—other than via impeachment—and send him down to the lower courts.

Were Sanders to somehow to persuade the Congress to go along with such a scheme, the Supreme Court would surely strike it down 9-0. Because every single Justice has a stake in ensuring that they can’t be relegated.

FILED UNDER: Bernie Sanders, Campaign 2020, Supreme Court, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor 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. Daryl and his brother Darryl says:

    Bernie and Joe need to just go home.

  2. I think Bernie sees Warren, Buttigieg, and Harris coming at him in the rearview mirror and he’s getting desperate enough that he’s starting to come up with idiotic and unworkable ideas like this and his student loan forgiveness plan.

    6
    3
  3. @Daryl and his brother Darryl:

    Dude, Biden may be the only viable candidate that the Democrats have in the field at this point.

    3
    6
  4. Blue Galangal says:

    @Doug Mataconis: I had that very conversation with my husband this morning. He’s all rah rah Harris schooled him! Which from our POV is true. But from a lot of people’s POVs? Biden is gonna be the one who sounded reasonable and unfortunately Harris is going to sound “strident” or “mean” or “shrill,” and “playing the race card.”

    This is not saying that the Trump voters need to be courted. This is just saying that Biden is a strong candidate for disaffected Trump voters and it won’t be surprising if they like him even more after this. (Their entire raison d’etre nowadays is victimhood so they’ll have no trouble feeling sorry for Biden.)

    However, in the unintended consequences section, the fact that F&F thinks this exchange was hilarious and keeps playing it over and over might be showing some disaffected Trump voters who still watch Fox that Biden is Their Guy.

    1
    1
  5. Blue Galangal says:

    @Blue Galangal: LOL at myself – I posted this before reading the comments under the debate thread. On the other hand – I did call it. 😉

  6. Daryl and his brother Darryl says:

    @Doug Mataconis:

    Dude, Biden may be the only viable candidate that the Democrats have in the field at this point.

    Curious why you say that? Based on current polling? Did you watch last night?
    Biden looked old and slow…hardly up to prosecuting the case against Dennison.
    IMO if he is the Democrat’s best hope…Democrats have no hope.
    And now he has come out with this “hoodie” comment…………….

    2
    1
  7. @Daryl and his brother Darryl:

    Read the last paragraph of my post in the debate and you’ll understand.

    This is not the end of Biden any more than Reagan’s first debate in 1984 against Mondale was the end of his Presidency. There’s more than enough time for him to learn his lessons from last night and improve debate performance.

    Besides, anyone who decides who they’re supporting for President based on a “debate” where even the candidate who spoke the most only got 19 minutes of airtime probably shouldn’t be voting at all.

    3
    2
  8. Daryl and his brother Darryl says:

    @Doug Mataconis:

    Read the last paragraph of my post in the debate and you’ll understand.

    I don’t mean to hijack this thread…but it’s not about this debate.
    The guy is old and slow. Dennison will knock him around. He doesn’t have the mental agility to deal with Dennison’s adderall fueled streams of nonsense. We’ve already seen how Dennison easily baited him into gutter-sniping a couple times.

    anyone who decides who they’re supporting for President based on a “debate”

    I really can’t imagine voting for Dennison, no matter who the Dems run…same as I held my breath and voted for Clinton. But Biden is a known quantity. He has been around forever, and I don’t think he’s the guy. And I’ve stated that many times before this debate.

    2
    1
  9. @Daryl and his brother Darryl:

    We’ll see.

    In any case, getting back to the subject of the post. An idiotic idea like this certainly demonstrates that Bernie Sanders isn’t they guy who can beat Trump.

    1
    1
  10. Daryl and his brother Darryl says:

    @Doug Mataconis:

    An idiotic idea like this certainly demonstrates that Bernie Sanders isn’t they guy who can beat Trump.

    No body who self-identifies as a socialist is ever going to be President in our lifetimes. Period.

    2
    1
  11. An Interested Party says:

    Dude, Biden may be the only viable candidate that the Democrats have in the field at this point.

    Well of course a libertarian would think that…

    2
    1
  12. @James:

    Sanders is right that any plan by Democrats to pack the Supreme Court if they take control of the White House and Senate would backfire. Not only would Republicans follow suit the instant they had the chance but the legitimacy of the courts as independent arbiters—granted, already on shaky ground—would be destroyed forever.

    You are correct, but I am inching ever closer to thinking that such maneuvers may be necessary at the rate we are going, and given the lack of viable options.

    6
    1
  13. @Doug Mataconis:

    Dude, Biden may be the only viable candidate that the Democrats have in the field at this point.

    That assumes only a white, male centrist (relatively speaking) can win. I am not sure that that is at all the case.

    6
    1
  14. Jen says:

    An idiotic idea like this certainly demonstrates that Bernie Sanders isn’t they guy who can beat Trump.

    Same as it ever was.

    I know his supporters think otherwise, but honestly I’ve been out of active politics for years and think that Republicans would have a cakewalk with a Sanders run.

    *Total up the cost of all of his ideas and make sure that it’s on every flier, web, TV, and print ad.
    *Emphasize the “socialist” part of “democratic socialist”–voters who can’t even name the three branches of government certainly aren’t going to parse that out.
    *Focus on his thin legislative accomplishments over the (many) years he’s been around
    *Point to his pro-Sandinista work, allude to the trouble in Central America, and link that to the immigration problem
    *Get a SuperPAC to publicize some of the nuttier stuff: his fiction writing, theories on cancer, etc.

    Republicans were all ready to go with the term “environmental racism” to describe his support for shipping Vermont’s nuclear waste to somewhere (I think) in Texas. This is just another weird idea that his supporters will fall all over and would make for some really interesting direct mail pieces about how he’s throwing out the Constitution, etc.

    6
    1
  15. Just nutha ignint cracker says:

    @Doug Mataconis:Biden as the only viable alternative the Democrats have says something about either the party or the electorate. Either way (and I lean toward a problem with the electorate), it’s not good news.

  16. OzarkHillbilly says:

    Biden is not the only viable candidate. If you think that he is I have 2 words for you: President trump.

    As for the subject of the post, I want my magic pony too.

  17. MarkedMan says:

    I’m curious. I had strong opinions about Bernie going into the debate so I don’t consider myself qualified to evaluate his performance. What did everyone else think?

  18. EddieInCA says:

    MarkedMan says:
    Friday, June 28, 2019 at 18:30

    I’m curious. I had strong opinions about Bernie going into the debate so I don’t consider myself qualified to evaluate his performance. What did everyone else think?

    As an avowed Never-Bernie member, I thought he was…. Bernie. Last night he seemed and acted like the cranky neighbor down the street telling everyone to not only get off his lawn, but to make sure they pick up their free lemonade and cookies before they leave.

    In other words… his act, like Trump’s, is getting stale. Others have taken his positions and improved on them, and he’s still stuck in 2015.

  19. Teve says:

    @Just nutha ignint cracker: there was a poll recently that showed three or four Democratic candidates beating Trump by like seven points.

  20. wr says:

    @Just nutha ignint cracker: “Biden as the only viable alternative the Democrats have says something about either the party or the electorate. ”

    Or about the person who is claiming he knows who is “viable.”

    I’m going with #3.

  21. Kathy says:

    I’m convinced by now that the key to booting Trump out is to get out the vote on the Democrats’ side. So while any candidate would likely beat Dennison in the popular vote, what we want is a candidate people like and, contra Heinlein’s dictum, want to vote for.

    By this I mean a candidate who 1) makes people want to take the time and trouble to cast a vote, and 2) makes people want to vote for him rather than against El Cheeto (plenty of independents to vote against him, if that is the point).

  22. Scott F. says:

    @Steven L. Taylor: if only a 76 year-old, white, centrist male can win in the US in 2020, we should just give the election to Trump, then start planning for how we form a new government from the burning ashes.

    That may a bit dramatic, but if our electorate can’t see itself to vote for any of a half-dozen or more smart, highly-capable candidates on offer from the Democrats this cycle over the corrupt, inept and dangerously authoritarian incumbent, we just don’t deserve good governance here.

    10
  23. @Kathy: I think turnout is key (especially in a few key states). I am less convinced it will take a special candidate to motivate Democratic voters. I think that the 2018 mid-terms demonstrated that anti-Trump sentiment alone will help motivate Democratic voters. The Democratic nominee simply can’t be someone who turns off voters in some mass way.

  24. @Scott F.: You have a point.

  25. Modulo Myself says:

    Both Warren and Harris will do better, in a heartbeat, that addled Joe. Bernie looked like a spry teenager next to Biden, who was having trouble with enunciation. That’s always a sign. I was worried about Biden’s chances but that debate last night–I mean the guy looked like a nice grandpa shrinking in his best suits that he’s worn for the last 20 years. He will be edged out in the least mean way possible.

    I think the main reason were watching this premeditated freakout by dullards about open borders/free health care/education is that a real leftist could and probably will win this election and they will win it in a way that the total defectives on the other side will have no idea how to contest. After that, there’s no one with intelligence and talent under 45 who is a Republican or libertarian. Nobody.

  26. An Interested Party says:

    I’m going with #3.

    Indeed…before he became president, there were plenty of people who argued Trump could never win…I’m sure there are those who argued that Obama could never be president either…

  27. Just nutha ignint cracker says:

    @wr: That works for me, too.

  28. James Joyner says:

    @Steven L. Taylor:

    You are correct, but I am inching ever closer to thinking that such maneuvers may be necessary at the rate we are going, and given the lack of viable options.

    Could be. I’m increasingly of the view the our entire institutional system—the Constitution itself—is simply not viable and that, paradoxically, that same system makes it next impossible to undertake the massive reforms that are necessary to fix it.

  29. Kathy says:

    @Steven L. Taylor:

    Democratic voters are well motivated, and they’ll vote for anyone their party nominates.

    Independents and Republicans who don’t like Trump, do need a candidate they can vote for.

  30. @James Joyner:

    I’m increasingly of the view the our entire institutional system—the Constitution itself—is simply not viable and that, paradoxically, that same system makes it next impossible to undertake the massive reforms that are necessary to fix it.

    We agree on this.

    That is why I think something like court packing may soon be attempted because it is at least within the realm of the possible.

  31. @Kathy:

    Independents and Republicans who don’t like Trump, do need a candidate they can vote for.

    And I understand that logic.

    I expect, that as we are already seeing in some commentary (see, e.g., David Brooks) that a lot of Republicans will end up talking themselves into voting for Trump no matter whom the Dems nominated because taxes or because abortion or because capitalism.

    And the issue is less the Dems being sufficiently popular (HRC, she of the lousy approval ratings, won more votes) than it is about turnout in key states.

  32. And, I will note, the key to getting the vote out is making sure the Democratic voters are energized, not that a handful of disaffected Republicans are.

  33. wr says:

    @Steven L. Taylor: I think every Republican columnist for the NY Times has now written the column demanding that the Democrats nominate a moderate Republican so they can feel good about voting for him. My own feeling is that if they want a moderate Republican candidate they should actually do the hard work of trying to fix their own party — which they cheerled all the way to Trumpland — rather than insisting that we become subservient to their desires.

    Mr. Brooks, Mr. Douthat and Mr. Stephens are all going to face a choice next year — Prove that they’re actually sincere in what they say about Trump and vote for an actual Democrat, or do what Republicans always do and fall in line.

  34. James Joyner says:

    @wr:

    Mr. Brooks, Mr. Douthat and Mr. Stephens are all going to face a choice next year — Prove that they’re actually sincere in what they say about Trump and vote for an actual Democrat, or do what Republicans always do and fall in line.

    I don’t keep up with Douthat or Stephens sufficiently to know but Brooks endorsed and, presumably, voted for Hillary in 2016.

  35. James Joyner says:

    @Steven L. Taylor:

    That is why I think something like court packing may soon be attempted because it is at least within the realm of the possible.

    I suspect so, presuming a Dem President gets a Dem Senate. I think adding two seats to undo the Garland gambit would be defensible, if seen by many as illegitimate.

  36. @James Joyner: The reference is to a column Brooks wrote this week (Stephens, too) about their distaste for the Dems after the debates (I am not sure if Douthat has chimed in). There is a vibe at the moment in which NeverTrump conservative columnists are giving advice to the Dems (I have seen Jennifer Rubin and Max Boot do it too).

    It is as if they really expect the Dems to nominate the most moderate candidate to appease them, despite the fact that none of them are Democrats.

  37. @James Joyner:

    I suspect so, presuming a Dem President gets a Dem Senate. I think adding two seats to undo the Garland gambit would be defensible, if seen by many as illegitimate.

    Exactly. At this point I am expecting each side to increasingly press whatever short-term advantage that it can find within the existing rules–at least that is more likely than the old norms coming into play–issues of broad legitimacy be damned.

  38. John430 says:

    Question: Do rules of the DNC allow for non-Democrats to run on their ticket? Sanders is not a Democrat. Or did he re-register as one?

  39. @John430: Our parties are extremely porous. Membership (or affiliation) mostly just means self-identification.

    Keep in mind, too, the primary is a contest to see who gets to be THE Democrat, so Bernie’s previous affiliations aren’t really relevant at this stage as long as he can get on the ballot in the caucus and primary states.

  40. Trumps is another illustration of the limited (nearly nonexistent) power the national party committees have over control of label and nominations.

    Our parties are exceptionally weak.

  41. An Interested Party says:

    Our parties are exceptionally weak.

    And yet they have a stranglehold on the two-party system…