Biden Open to SCOTUS Expansion
After weeks of evasion, the frontrunner hints at a compromise policy.
My friend and co-blogger Steven Taylor has repeatedly made the case for Democrats expanding the size of the Supreme Court to overcome the unrepresentativeness of our institutions while I have made the case that court-packing would be illegitimate and undermine the institution. Last night, former Vice President Joe Biden suggested a middle course.
WaPo (“Biden signals he’ll take a position on Supreme Court expansion before the election“):
Joe Biden for weeks has resisted answering a straightforward question: Does he support expanding the Supreme Court beyond its current nine seats?
On Thursday night, the Democratic presidential nominee signaled for the first time that he would take a position on that before the Nov. 3 election, and he showed in the clearest terms yet that he was open to the controversial proposal of adding more seats, as many liberal activists are urging.
Biden’s comments were not always clear, but he suggested his views on reforming the Supreme Court would depend on whether Senate Republicans follow through on their plans to rapidly confirm Amy Coney Barrett to the court.
ABC’s George Stephanopoulos, hosting a town hall meeting Thursday night, asked Biden: “If the Senate votes on Coney Barrett’s nomination before the election, you are open to expanding the court?”
“I’m open to considering what happens from that point on,” Biden replied.
“Don’t voters have a right to know where you stand?” Stephanopoulos soon followed up.
“They do have a right to know where I stand, and they’ll have a right to know where I stand before they vote,” Biden said.
Asked if he would come out with a “clear position” before Election Day, he added: “Yes. Depending on how they handle this.”
By “how they handle this,” Biden clarified that he was talking about the Barrett nomination before the Senate. Biden and his fellow Democrats have sharply criticized Republicans for moving ahead with the nomination so close to an election, arguing that they should wait and let the next president decide whom to nominate.
“It depends on how much they rush this,” said Biden.
Biden also mentioned “other alternatives” for transforming the court, a few moments after referring to ideas proposed by former South Bend, Ind., mayor Pete Buttigieg and others “to determine whether or not you can change the way in which the court lifetime appointment takes place — consistent, arguably, with the Constitution.”
Buttigieg, who ran against Biden in the Democratic primary, proposed a 15-member Supreme Court in which five members would be appointed by Democrats, five by Republicans and the other five by unanimous agreement of the first 10.
Another idea at least worthy of consideration, Buttigieg said during a debate last year, would be term limits for justices rather than lifetime appointments.
Before being pressed to go further, Biden had reiterated his wariness of the idea of adding justices to the court, suggesting that could lead to repeated expansions each time power switched between the parties.
“I have not been a fan of court-packing because I think it just generates what will happen every — whoever wins, it just keeps moving in a way that is inconsistent with what is going to be manageable,” Biden said, reiterating the position he voiced in the Democratic primary.
To me, the speed with which the Senate confirms Barrett to the Court is irrelevant. There’s simply no doubt that she would be confirmed under normal order. She’s highly qualified and was easily confirmed to the Court of Appeals quite recently.
To the extent that Biden is implying that Barrett’s nomination is illegitimate because of what happened with Merrick Garland’s nomination, I think he’s on more solid ground. While Republicans actually signaled that the “no confirmation in an election year” concept only applied when the President and the Senate were held by different parties in 2016, that’s not the message they sent. Further, while there’s some practicality to the idea, it’s incredibly cynical.
Steven and I disagree mostly at the margins on the problems caused by the increasing unrepresentativeness of the American system. In particular, he counts the two nominees that George W. Bush got through in his second term as part of the problem and I don’t, since he was re-elected by a popular vote majority. (Although I fully concede his point: He almost certainly wouldn’t have been elected in 2004 were it not for his having been elected under inversion in 2000.)
Because of that, I think it would simply be illegitimate for Democrats to ram three, four, or five Ruth Bader Ginsburg clones in and overturn the outcome of three decades’ worth of elections* in one fell swoop. Not only would it invite tit-for-tat if Republicans ever win again but it would undermine the role of the courts, turning them into a much more blatantly partisan instrument. (There is an argument, advanced most notably by Jamelle Bouie, that this would be a good thing but I disagree.)
That said, I think something like the Buttigieg proposal is salable and, indeed, probably a good idea. Expanding the Supreme Court to fifteen members to “pack” it with six liberals would be outrageous. Expanding it to fifteen to change the character of the institution—to make it what it arguably is supposed to be—into one that does not have a predictable ideological or partisan bias is another thing altogether.
I’m not sure that the Buttigieg plan is Constitutional, however. Rather obviously, term limits would require an amendment. Adding more seats would not. But the Constitution is rather clear that the President appoints new Justices with the advice and consent of the Senate. Having the Supreme Court itself essentially appointing Justices could theoretically be done under this process but, if a future President didn’t want to go along with the plan, I don’t see how he could be forced to.
But, again, a super-sized Supreme Court that’s appointed on the basis of character and competency and not the best guess of whoever happens to be President as to how they’ll vote on controversial cases would be a welcome change.
__________________________
*Justice Clarence Thomas, the member of the Court with the longest tenure, was appointed by George H.W. Bush, elected in 1988.
As if they aren’t already (outside of the few fig leaves Roberts has thrown to “protect the legitimacy” of the court)…McConnell’s Federalist Society Assembly Line alone has already turned the courts into a blatantly partisan instrument…
I think it was illegitimate in the first place to treat the courts as blatanty political institutions. That’s clearly not how the authors of the Constitution intended it to be.
@An Interested Party:
I think McConnell has clearly used parliamentary gambits to gain partisan advantage, perhaps in illegitimate ways. But I don’t think using the Federalist Society as a vetting instrument is any more problematic than means Democrats use to find liberals for the bench.
@drj:
I just don’t think the Framers are useful in this discussion. They had no inkling that the courts would have anything like the power they wound up having in setting basic public policy. Partisanship naturally flows from that.
To clarify:
The “outcome of the past three decades’ worth of elections” should – in line with Constitutional expectations – have had a far smaller impact on how the SC has ruled.
To further strengthen my point, it is utterly unfair to bind (and continue to bind) current voters by the decisions made by voters in the past. In a democracy, voters should be able to change their minds.
The Framers came up with lifetime appointments not to bind future voters, but to make the courts independent of political pressures and interests. Obviously, that is not what happened.
Oh, there is someone left who still doesn’t know the Supreme Court is a partisan institution, and it’s Joyner.
James, here is every SCOTUS appointment/confirmation:
1) Locate a nominally qualified partisan hack who’ll give you want you want.
2) Carefully tutor said hack in the fine points of lying to Congress.
3) Hold hearings in which partisan Senators ask partisan questions and elicit dishonest answers.
The choice of nominee is partisan, the prep is partisan, the questions are partisan, the answers are partisan. But somehow the new justice is not?
@Michael Reynolds: You left out the role of the Federalist Society. Recruit likeminded law students into a cult that marinates them in a stew of propaganda, surrounds them with an echo chamber, and after confirmation provides an appreciative audience and “friends” who will keep them from straying.
@Michael Reynolds: Our disagreement is really at the margins, I think. Mostly, I would substitute “ideological” for “partisan.” That may be a distinction without difference but I think it’s about worldview rather than putting someone on the bench who will ratify a party’s policies.
But, unlike @drj, I don’t find it particularly problematic that the courts follow the election returns but slowly (and imperfectly). If they’re going to be in charge of deciding our most contentious issues, that’s only natural. It’s somewhat organic.
It has gone off the rails a bit because of the Garland gambit, as that should very much have reflected the results of the 2012, not the 2016, election. Trump should be on his second Justice, not his third.
@gVOR08: The Federalist Society was created as a counterpart to all manner of legal societies and institutions that create a deep bench of highly-qualified liberal legal scholars for Democrats to draw their judicial nominees from.
@An Interested Party:
This doesn’t get enough attention. The Republican Party no longer even weighs in on who gets selected to the courts but instead farms it out to an institution wholly controlled by secret billionaires. Republican/Federalist Society judges know that for their career to advance they have to please these billionaires. They might not know them personally, but the expected direction of their decisions is, from what I understand, pretty specifically delineated by the guest speakers that are invited to the all-expense paid junkets funded, once again, by the billionaires.
As responsible, intelligent people we need to be cautious about seeing conspiracies behind every action. But we don’t act as responsible, intelligent people if we default to saying that everything is a crazy conspiracy. Something like this actually is a conspiracy, albeit not a very secret one (only the identify of the ultimate funders is closely held, if widely suspected). Sometimes our hair should be on fire.
To talk about norms the Democrats should adhere to is absurd when the Republicans have literally sold the selection of judges to the highest bidder.
JJ: Your both sides do it is showing. Selecting judges from only the Federalist Society is like Dems selecting judges only from the ACLU except most legal scholars find federalist views to be fringe worthy if not actually bonkers. Ask on of the how they feel about the 13th amendment. The fact that Judge Amy and Kavanaugh were are the Brooks Brothers riot in Miami in 2000 tells you everything you need to know. Do you see such naked partisanship with Sotomayor or Karan?
@James Joyner:
This quaint opinion has been overtaken by reality. Federalist Society judges are currently overturning centuries of precedent concerning public safety because Republican’s don’t want to wear masks. Many of these precedents have stood unchallenged since before there was a United States, yet the Republican judges are tossing them in the trash.
James, it is simply naiveté or wishful thinking to believe the Federalist Society is about worldview or philosophy. This may be what the judges tell themselves so they can look in the mirror, but the rest of us should face reality.
This brings up a point that Barret made in response to a Leahey asking if SCOTUS is “the final word”.
Her response was (paraphrased) “Yes it is. But we have no power to enforce our decisions.”
This was in the context of Brown v. Board of Education. Her point was that despite a unanimous decision, it took two more cases and then the National Guard stepping in before anything actually came of it.
James, if you were a hospital administrator, and were considering hiring an extremely skilled surgeon who only chose to save the lives of Christian patients while letting the others die, would you consider him to be “highly qualified”? That seems to follow from how you apply that phrase to jurists.
@James Joyner:
I’m seriously wondering when they are useful to a political discussion, as they seem, admittedly in retrospect, to have been hopelessly naive politically.
Illegitimate is clearly being defined now as “the party I disapprove of does it but it’s OK for my guys”. @James, right now Lindsey Grahman & Co are breaking Constitutional rules to ram a Scalia clonethrough and freely admitting it. They’re insisting on a vote and don’t have the bodies to properly call for it because they want to overturn over FIVE decades worth of elections and jurisprudence while they still have the chance. They’re just doing it and damn anyone’s opinion on the matter.
They’re the ones blatantly being illegitimate and possible illegal with this rushed session and their highjinks. In fact, ACB needs to be impeached immediately upon the new Congressional session for this sham of an appointment in order to preserve the legitimacy of the Court. The GOP is playing with fire and deserve the court expansion they’re going to get in response. After all, if Might Makes Right as y’all seem to insist on, get ready for the pounding when the blue wave gives power to those who think it’s Right to have 13+ judges.
James wants to shut the barn door now that the horse has already bolted. Sorry James, the DEMs get to answer the Republican tat, and with a tit if they so choose. Rolling over will only encourage the GOP to do more tatting.
And c’mon James, the GOP has already turned the SC into a blatantly partisan instrument. That was their plan all along. They know their ability to win elections is getting worse every day so they have decided to rig the courts instead. You know this.
@James Joyner:
Setting aside the SC for the moment, McConnell held up 110 Obama-nominated judges and confirmed over 200 Trump/Federalist-nominated judges. It has not only gone off the rails, it’s left the train station altogether.
@Blue Galangal: I read somewhere that 1/4 of federal judges are now Trump appointed (this may be wrong). I do know that at least 50 were rated unqualified.
There is a tit for tat risk with so called Supreme Court packing. The obvious solution is court reform and this fiasco leads to that It’s a net win. There are many reforms that can be achieved without constitutional amendment.
@James Joyner:
The GOP ceased to have an ideology long ago. The idea that Mitch McConnell has deeply held beliefs beyond ‘me want power’ is ludicrous. Small government and balanced budgets? Riiiight.
American conservatism is an empty box. There is no such animal. There are just people using pseudo-conservative terminology to cover for unbridled greed, racism, misogyny and anti-intellectualism. And that is all the GOP has been since 1968. You bought into the academic cover stories. You fell for the illusion that think tanks and chin-strokers were the party. They were never the party. Trump revealed the truth. He didn’t cause it, he just stripped away the bullshit.
What never-Trump Republicans have not yet come to grips with is that their party did not leave them, but rather that they were dupes, suckers who fell for the illusion that they themselves helped to create, and in the process fed and watered the monster. Your party’s voters didn’t suddenly become creeps, they were always creeps, and at some level you must have known it. You just thought you and your fellow smart, civilized, ideologically-driven ‘conservatives’ were the ones holding the leash. Trump showed you who was using who.
@Pylon: I agree with your premise, but we should refer to them as McConnell appointees. Trump has no idea who these people are and wouldn’t know one if they bit him.
You hope the threat is enough to keep the Roberts in line. That’s part of the push and pull of politics. FDR never actually packed the court, but the threat was enough to get them to knock off their bullshit.
@James Joyner:
FTFY
This is what you are arguing for. If the courts are political, the party representing a minority of voters should not get to bind the current (and likely future) majority for another three decades or so.
This is simply not how democracy works.
Elections ALWAYS overturn the previous elections. That is what elections are for! If you believe that the courts are political and should somehow reflect voters’ preferences, court packing by the current majority should be entirely legitimate.*
Specifically, what on earth could be a valid reason to tell a voter “You can change your mind, but not for another thirty years”?
In other words, your entire defense of the status quo rests on an intrinsically flawed premise.
* Not my opinion, by the way, but it follows from your argument.
Another flawed assumption. You are ignoring human agency. Specifically, McConnell’s refusal to have hearings for Garland was most definitely not “organic.” It was a deliberate attempt to entrench minority rule.
@MarkedMan:
There’s a failure by mainstream media to recognize that what we call conservativism in America is actually reactionary movement. They got great marketing, but their ideas aren’t traditional or historically rooted at all.
@drj:
James is scrabbling to find a way to argue that both sides do it (with respect to imposing minority rule) despite the fact that only one side is actually in the minority.
@Michael Reynolds:
Your cynicism is adult in nature. Your convenient dismissal or failure to address or understand the most fundamental issue at hand – strict constructionism, or not – is intellectually light.
Oh, how different this convo would be if HRC had competently defended the “blue line” in 2016 or not committed any number of other own-goals that allowed Trump to squeak by in the EC…
My view is that if the SCOTUS and nominations are going to be blatantly partisan (and I don’t see an off-ramp for that given the state of our politics and the ends-justify-the-means attitude by activists), then the power of the SCOTUS should be much reduced – which is equally unlikely, unfortunately.
If anyone is interested in root causes, I think a strong case for the politicization of the courts can be laid at the feet of the Legislative branch which spent decades ceding power to the Executive and is now de facto ceding power to the courts due to an inability to actually legislate. And activists seem to have realized that winning in the courts is both easier and quicker than the difficult work of legislation and it also has the added benefit of not having to compromise. Plus, losing in the courts feeds the activist feedback loop and increases the desire to put the “right people” on the bench.
With the sorting of the political parties into ideological tribes/gangs, partisans now only care about power and achieving their agenda. The institutional brakes have been bled dry and concern for “norms” or institutional legitimacy is secondary. It’s become like the famous line from Vietnam – “we had to destroy the village to save it.” Hence the frequency with which supposed “principles” are tossed aside when they become inconvenient to achieving partisan aims or responding to some outrage committed by the other side.
Those who support court-packing should consider the long-term effects and the likelihood that a tactical victory will be pyrrhic. Democrats, in particular, have not played a very good tactical game with their previous escalations over the past two decades, particularly getting rid of the filibuster for judicial nominees. Court-packing could simply be the latest in a series of moves that end up hurting Democrats more than it helps them.
But I actually think court-packing is unlikely even if the Democrats do control all three branches. If ending the filibuster was the “nuclear option” then court-packing is the “thermonuclear option.” I’m skeptical that court-packing has sufficient support among Democrats, much less the population as a whole.
Biden should definitely pack the court, and pack the judiciary, too.
I favor a more structured, fair kind of reform. But as of now, there is no incentive for the Republican party to even contemplate such a thing, because they are getting their Justices on the Court, and their judges on the federal courts.
They’ve been playing hardball and the democrats have been playing along. That has to stop. Biden needs to play hardball in return, so the GOP will have no recourse but to consider reform if they want to get anything out of the system.
@keef:
Strict constructionism wouldn’t have struck down the preclearance part of the voting rights act. It definitely doesn’t give you Bush v. Gore. At the supreme court level, the close decisions are straight up political.
Yeah, we would be asking how SCOTUS could possibly function with only 6-7 judges as McConnell would have made sure to come up with some bogus reason to deny HRC any SCOTUS picks…
As if McConnell wouldn’t have ended the filibuster for SCOTUS picks if Reid had acted differently previously? Give me a break…
And instead of court packing what would should the Dems do? Perhaps they should be like a battered wife and just let Republicans continue to abuse them…
@Michael Reynolds: I’m really talking here about the judges. They’re ideological, although often in a rather unusual way, rather than partisan.
@drj: It has simply long been understood to be how the system works: openings come up and the President appoints a Justice to fill the vacancy, with the advise and consent of the system. That’s organic and slow. It’s imperfect in that, say, Jimmy Carter didn’t get a pick but not particularly problematic. Over time, politics naturally shapes the outcome—Presidents and Senators are elected creatures. No, it’s not “democratic.” The courts aren’t supposed to be, at least not directly. But they’re reflective of a representative process.
And, again, I agree that McConnell rendered the process less organic and more partisan by blocking Garland.
@Andy:
I honestly think we do.
That should tell you something about the current state of judicial nominations and the quality of judicial rulings.
I prefer my judicial losses at least somewhat believable and not being pulled out of thin air.
@An Interested Party:
That’s the way escalation works. Unless one can be confident that escalation will provide a decisive advantage, then escalation is usually dumb.
At this point, who can honestly say that Reid nuking the filibuster has served Democrat’s interests well over the long term? Or that Schumer wasting it on Gorsuch instead of Kavanaugh was a good idea? Or the decision in the first GWB term to start regularly blocking judicial nominees in the first place?
The reality is that the GoP’s current favorable position WRT the judiciary was aided and abetted by short-sighted decisions that Democrats made over the last two decades.
The biggest problem for Democrats hasn’t been a lack of desire to play hard-ball, their biggest problem is they’ve played hard-ball poorly. Maybe court-packing is the genius strategic move that will finally be decisive and won’t come back to haunt Democrats later. But it doesn’t appear that way to me since advocates aren’t discussing it in terms of strategic effects, but only in terms of a tit-for-tat tactical advantage and retribution. One should at least be self-aware enough to realize that court-packing, once deployed, is a weapon that both sides can use.
@James Joyner:
Fine. But then they shouldn’t be nakedly partisan – especially if that partisanship is distributed unequally.
You can’t have it both ways.
Personally, I think the time has come to admit that the system no longer works- not even like it did twenty years ago – and that there is a need for a new equilibrium.
It was never perfect, but it worked. Thanks to GOP hardball tactics, it no longer does.
Looks like McConnell is going for a committee vote on the 22nd and a confirmation vote on the 26th. He’s got about a week margin then to avoid the blatant farce of lame duck senators voting to confirm a lame duck president’s nominee, while claiming he’s executing the will of the voters.
Please gawd, give us enough senate seats so McConnell can’t block everything in an all out effort to make Biden a one-term president.
Whatever Biden decides, what I would really like to see is a new law that: 1 Establishes a Federal Judicial Nominations Board made up of distinguished jurists who would vet potential nominees; 2 Only those rated as “Highly Qualified” would be eligible for appointment; 3 Requires a final Senate vote within 60 calendar days from the date the nomination is submitted to the Senate. Of course, this wouldn’t stop someone like Judge Barrett, but it would prevent future Merrick Garland atrocities.
So the Democrats should have just let Republicans continue to filibuster Obama’s judicial nominees for no good reason other than they didn’t want to allow him to make court picks…I’d love to know what grand strategy the Democrats should have pursued to counteract Republican obstructionism…
At this point, Democrats really have no alternative but to pack the courts, considering that Republicans have stolen one seat and are violating all norms to fill another seat…
@An Interested Party:
Well, I’m sure it’s totally different if the next ruling stating that only Republican presidents are above the law is 272-269 instead of a mundane 6-3.
@An Interested Party:
My argument isn’t about counterfactual speculations on what the Democrat’s should have done, it was about the effects of what the Democrat’s did, which your reply does not address.
Just as with their rationale for court packing, what alternative did they have? The notion that Democrats shouldn’t make moves to counter Republicans moves leaves Democrats with no options but to continue to let Republicans do whatever they want…drj was joking with his comment about a SCOTUS decision involving hundreds of justices but perhaps there is a kernel of a solution there…maybe Republicans will stop being so blatant with their power grabs and actually negotiate in good faith with Democrats after they (Republicans) get a taste of their own medicine…
@Andy:
It would be a different conversation, for sure. Remember, in 2016 Republican members of the Senate, including McConnell, were floating “we’re okay with an 8-member Court”–they were well on their way to stonewalling any of a Pres. Clinton’s appointments, just as they had with Obama.
@James Joyner:
I agree, but I’m not sure that’s better. I’d rather have a partisan Republican judge interested in governance and American prosperity than the intellectual equivalent of a vegan Trotskyite judge.
@Andy:
Your recurring error is to believe that Democrats are somehow causing Republican intransigence and aggression, and that if Democrats had fought back even less than they did that Republicans would not have behaved so badly. There is zero evidence for this — none, zip, nada — and much evidence to the effect that the GOP would simply have grabbed even more even faster. You might as well assert that Ted Kaczynski would have bombed fewer people if everyone had just been a little more Luddite overall.
It’s bad enough when people assert that only Democrats have agency; it’s even worse when they then blame Democrats for the things they are opposing, as if resisting the threat somehow causes it.
@Andy:
Translation: I don’t have any idea what Democrats should have done instead, but I reserve my right to say that what they did do was the wrong thing. Even if I have no evidence that what they did had any effect whatsoever.
Hint: it is not escalation when you take away the stick someone is beating you with.
@An Interested Party:
Which is, again, escalation. That’s how it works.
That you believe that Democrats had no other choice (a disputable opinion, especially considering Republicans would argue they were just doing what Democrats did to Bush) does not relieve Democrats of responsibility for the run-on effects of their decisions – not just this particular instance you want me to consider in isolation, but the entire escalation chain.
And again, you’ve avoided my actual argument which suggests you can’t dispute it. So, let me be direct: Have escalations by the Democrats starting with filibustering Bush judges in 2001 served the interests of Democrats over the long term? Have the results of those actions actually benefited Democrats?
I think the record clearly shows the answer is no, but if someone wants to argue that those decisions were strategically wise and have given Democrats anything more than a temporary tactical advantage, I’d like to hear it.
My point in bringing this up is not to play a game of coulda, shoulda, woulda but to challenge the assumption that this new, very big, proposed escalation will turn out any different than the previous ones. Because that’s how escalation works.
And, the most important question in any escalation chain is: How does this end?
@Kathy:
And in their most wildest dreams would not have imagined Facebook or OTB.
Or that the Constitution would only be amended 13 times (after their tenure)
Republican: (punches Democrat)
Democrat: (punches back)
Republican: you shouldn’t escalate! Where will it end?!?!
@DrDaveT :
This is the language of abuse : “why are you making me hit you?”. The only people who blame Dems for bad GOP behavior are the type of people who tell abused wives that if they hadn’t angered their husbands, he wouldn’t have given them a black eye. It’s literally the same “logic” – don’t upset the unstable person or it’s your fault they attack you. You have no right to attempt control or to stop the unstable person’s reign of terror because by doing so, you’re upsetting the natural balance of power with them on top and you crushed under heel.
It’s meant to shame and discourage change. Just accept that terrible people are going to do terrible things to you and anything you try to change this won’t work or will make it worse. Let them do as these please, lay down and take it. The official term for this is learned helplessness and there’s been blatant efforts by people to foster that mentally in liberals for decades. Rather than admitting half the country is insane and prefers to let even crazier versions of themselves destroy our nation, they chastise liberals for “provoking” conservatives and “making” them reactionary jerks.
@Bob@Youngstown:
Never in the wildest dreams would they have predicted Trump. Quite frankly, they would have expected someone like him to be disposed of before he ever got to the whole running for Office bit. Remember back in their day, honor was a thing and duels still occurred. Fraudsters like Trump were ridden out of town on rails, tarred and feathered or worse. They would have expected the public to have dealt with him and thus never planned for someone like him to ever reach the highest echelons of power.
Seriously, if we were to go back and tell the Founders that within a decade a black man and Donald Trump was POTUS, I do believe they’d be more shocked at Trump. The racism would have blinded them to Obama’s qualifications and worth but Trump would have offended every single one of them to the core.
@keef:
I believe Barrett is regarded, like most of the Federalist Society, as an “originalist”, which is not the same at all as strict constructionism. However the distinctions between strict constructionism, textualism, and originalism are hazy, and confusing to a lay person. In fact, I think they’re confusing to law professors and Justices. Perhaps you could explain and expand on your point of view.
@drj:
I actually am partial to the Buttigieg proposal or similar.
Particularly if the number of Judges is set by statute.
https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491
@DrDaveT:
My opinion on what the Democrats should have done or whether or not I think they did the wrong thing (which you are making bad assumptions about), has nothing to do with an analysis of the effects of the decisions that Democrats actually made.
So answer the question: Have the escalations Democrats engaged in over the last 20 years benefitted Democrats – yes or no? And what is the argument for court-packing that benefits the Democrats over the long term considering all the possible GoP responses?
The desire to avoid taking my argument head-on, and instead trying to make it about what I think the Democrats should have done is a nice attempt at avoidance, but it won’t work.
And this is another attempt to avoid the argument and it is also false. I have never claimed that only Democrats have agency and I’m not “blaming” Democrats for “resisting” or whatever you want to call it.
I thought it obvious, but perhaps I should explicitly state for your benefit that when it comes to escalation it takes two to tango.
I’m simply pointing out what I think obvious, which is that Democratic escalations over the past 20 years – for whatever reason – were not as effective as Republican ones. And further that Republicans were able to capitalize more on norms that Democrats broke – ie. the filibuster. If you want to argue that is not the case, then let’s hear it.
Or to put it another way, no one doubts that Democrats have been “resisting,” the question is why has this resistance been relatively ineffective and why should anyone believe that court-packing will be any different.
@Andy:
And I’m pointing out to you what I think is obvious, which is that there haven’t been any Democratic “escalations”. Escalation is when you do something to me, so I do something worse to you, so you do something even worse to me, etc. Nothing the Democrats have done comes close to qualifying as “worse”.
Again, if I take away the stick you are hitting me with, that is not “escalation”. Even if I then smack you with it once or twice. And, more importantly, my taking away your stick in no way caused you to be hitting me with it in the first place, and if it makes you so mad that you then start hitting me with a tire iron that is not in any way my fault.
You have, for some time now, repeatedly stated that the Democrats (invariably) did the wrong thing — but have at the same time said (invariably) that you don’t know what the right thing would have been, or if there even was a right thing. It’s an intellectually bankrupt position — you can’t sensibly criticize actions that you admit might have been the optimal actions in the circumstances.
@Bob@Youngstown:
Or that both would be referenced in the same sentence 😉
@Andy:
Absolutely. Absent that Obama would have gotten even fewer judges appointed and even more would have been left for Trump to appoint and McConnell to shepherd through.
One sided disarmament never works out for the side that disarms itself.
@gVOR08:
A textualist believes in interpreting the precise language of the Constitution to argue for whatever position their personal prejudices favor.
A strict constructionist places this into a broader context of the Articles of Confederation and Federalist/Anti-Federalist Papers before arguing for their prior preference.
An originalist feels free to invoke sentiments attributed to the Founding Fathers that are not explicitly presented in any document when arguing for the position their personal prejudices favor.
I hope that makes it clearer for you.
@keef:
Drew, Drew, Drew. Mr. Zero Hedge Trumpie, you have no standing to criticize anyone for lightness. Camera…person…covfefe. You worship a moron. And you lie. A lot.
But while you’re here, since you are a master of the universe, tell us who Trump owes 400 million (minimum) to. Not a bank – they stopped loaning Trump money long ago. Very unlikely that even an Adelson would give Trump money – Adelson didn’t get rich loaning money to deadbeats.
Which leaves who? What? Sovereign wealth funds. Right? Right.
@Andy:
Short of expanding the Regional District Appeals Courts and/or the Supreme Court, the only way this (McConnell/Garland, McConnell destroying all norms for the judicial approval process) ends is for Republicans to be out of majority power for the next 24 years or so.
Regarding originalists vs. textualists vs. strict construction, I receive the Washington Post book review email, and there was an interesting segment on reading in there today. Precisely, what it means to read. I’m excerpting below because there’s no way I can paraphrase in a way that does it justice.
@James Joyner:
Sure. But those days are gone. You keep on harping about how it used to work. It used to work like that because there was an agreement on all sides about how far things would be taken. It used to be that if the opposition party controlled the Senate and an opening came up, the president would nominate someone that was considered more moderate, and then the Senate would approve. That’s gone. It used to be that either Senator from a potential Judge’s home state could torpedo a nomination for any reason, regardless of party. That’s gone. It used to be that the Judiciary committee actually took their job seriously and recognized the need for cooperation on both sides, since power would shift from one side of the table to the other. That’s gone.
So you can spend your time moaning about the good old days, or you can talk about what can replace it. For my part, I think very little can be done in a cooperative fashion. The idea of taking Mitch McConnell or Grassley or Graham at their word is ludicrous.
If Biden has the house and senate he should create as many new seats as he can, at all levels and fill them with centrist-to-progressive judges with a lot of common sense and empathy. He should do it as fast as possible. And the Democrats should work out working relationships amongst the more conservative and liberal factions of the party as to how judges will be put forward. They should honor these norms within the party, because a reasonable scenario is that in 12-16 years the Republican Party will be a minor annoyance and the Dems will have split into at least two major factions.
@Andy:
FWIW, I think it clearly did benefit the causes the Dems promote. They were able to stop judges that would have been bad for those causes and they were able to install judges that would treat those causes fairly.
Your whole “clearly did not” is predicated on the idea that if Dems had obeyed these norms when they were in power, the Republicans would have obeyed them when they got back in. There is no evidence whatsoever in favor of that, and some pretty conclusive evidence against it.
@James Joyner:
I refer you to the excellent comment by @DrDaveT: above. It’s not really an ideology if it can be made to fit any situation that gives advantage to your side. That’s not ideology, it’s just bullshit. It’s like an armed robber calling himself a communist because he’s sharing your wealth. With himself.
The percentage of people actually capable of remaining faithful to any ideology, including religion, is so disappearingly tiny it may not even exist.
@DrDaveT:
Right after Bush was elected, the Democrats started filibustering regular judicial nominations. Democrats filibustered more nominations in the Bush presidency than had been filibustered in the previous century. That’s an escalation.
Reid pulled the trigger on the “nuclear option” to get rid of filibusters for judicial nominees – that was an escalation.
Those are the two most obvious examples, but there are more.
Now I get that Democrats did these things in response to things the GoP did and that both Democratic and Republican partisans believed their escalations were justified considering the circumstances. But the argument that Democrats never escalated at all is without merit.
And that continues to be true today with talk of nuking the filibuster for legislation and packing the court – both of which would be escalations.
@Grewgills:
First of all, thanks for actually addressing my argument.
I would counter that with the filibuster intact, Democrats would be able to continue to block Trump’s judges as before and the GoP would not have had the votes or the excuse to nuke the filibuster for SCOTUS nominations. Kavanaugh would almost certainly not be a justice today for one thing.
So I think your comment about disarmament is ironic – Democrats haven’t been able to stop Trump’s nominations because they disarmed themselves by nuking the filibuster and then wasted a pointless filibuster attempt on Gorsuch. Sure, it allowed Obama to get a bunch of judges seated, but it left Democrats without any weapons to stop Republicans from doing the same thing, and the GoP has capitalized on this much better than the Democrats were able to do.
Again, you base your argument on a false premise…if only Democrats hadn’t gotten rid of the filibuster than McConnell would have allowed them to use it against Trump nominees? I don’t think so…
@DrDaveT: It does clarify things indeed. While strict constructionism allows a degree of, shall we say, “flexibility”. Originalism is pure Calvinball.
@Andy:
Let’s try that again. When Bush won, he (or rather, the porto-Federalist Society) started nominating highly partisan judges into virtually position. The Democrats responded to this sudden flood of ideologues with the tools at their disposal.
@Michael P: This is true. However, Trump may well become a dirty word politically after this election, and i don;t mind tying those judges to it.
@al Ameda:
So in other words, never.
@An Interested Party:
It’s not a false premise. McConnell and the Republicans might have nuked the filibuster at some point if the Democrats hadn’t done it first. Then again, they might not have. Or the circumstances may have been different. However you slice it, counterfactuals require certain assumptions and yours are no more valid or any truer than mine or anyone else’s.
But who does if first, as I’ve been trying to explain, isn’t really that important because once the filibuster is nuked, it’s nuked for everyone. The party that does it gains some immediate advantage because they can use it first, but that advantage isn’t decisive or enduring. And, as I’ve argued here, that has exactly been the case for the Democrats who traded a short-term advantage to fill Obama’s seats for the long-term disadvantage of not having a weapon to stop the GoP from doing the same and more. And so far, the GoP has better capitalized on that.
Like most things, I come at this from a strategic point of view. Those who want to succeed over the long-term need to think over the long-term and consider many factors including how your own actions will help the other side and affect the big picture. If I have a criticism of the Democrats, it’s this – a failure to appreciate the potential long term consequences of their actions – consequences which we’re seeing right now. That’s why I don’t have a ton of sympathy for Democrats because it was obvious at the time that nuking the filibuster was a risky long-term strategy, one that could easily blow up for them – which it has.
If there were any Republicans here I would say the same thing to them. Republicans have all kinds of excuses for why their norm-breaking is justified (they still talk about Bork FFS) and also don’t seem to have much interest in long-term strategy. Their chickens may come home to roost at some point and they’ve opened the door for Democrats to match what they’ve done which Democrats will surely use that to the greatest extent they can if given the opportunity. And the GoP will not be victims either just because Democrats are able to use the weapon the GoP unsheathed more effectively than the GoP did.
So that’s why I think escalation is usually dumb because it trades short-term gains for long-term risk. And if one is interested in such things, the literature on the effectiveness of escalation strategies in geopolitics and international relations supports this view. So I disagree that not escalating is a sign of weakness or that amounts to “disarmament.” Such arguments were both bad in the context of cold war nuclear tensions and they are not any more valid in the context of domestic politics.
@MarkedMan:
That you believe the escalation was justified does not make it any less of an escalation.
Oh sure…McConnell, who has made it his primary goal to shape the federal judiciary, would of just stood by and tolerated Democratic filibusters…yeah…
Both sides in the Cold War realized the danger of mutually assured destruction…Republicans have not shown that they fear any kind of destruction from their escalation, perhaps Democrats should just wait for Republicans to realize this? You keep harping about how horrible escalation is when the only alternative for Democrats is to do nothing and allow Republicans to gain as much power as they can…in the end, the only way to end escalation is for both sides to come to the bargaining table and work out a deal…Republicans have given no indication that they are willing to do that…
@Andy:
“My opinion on what the Democrats should have done or whether or not I think they did the wrong thing (which you are making bad assumptions about), has nothing to do with an analysis of the effects of the decisions that Democrats actually made.
So answer the question: Have the escalations Democrats engaged in over the last 20 years benefitted Democrats – yes or no?”
Umm, that’s what they have been answering. The question on whether the escalations benefitted Democrats is compared to what? Compared to sitting on their hands and doing nothing in the vague hope that Republicans would get tired of winning, as you seem to be arguing for, it’s certainly better.
“And what is the argument for court-packing that benefits the Democrats over the long term considering all the possible GoP responses?”
If the GOP realizes that rulebreaking can go both ways, and that they can lose some of the rounds, they may come to the table and work out a de-escalation. It may not be a certainty, but it’s better shot than hoping for Thomas and Alito to die under the next Democratic President who has a Democratic Senate to confirm their replacements.
@James Joyner:
And I suspect that the readership and commentariat here would be less vocal if your admission wasn’t always followed by “oh well, that’s just how politics works and y’all gonna have to get used to it” while noting that you also fully approve of the outcome–leaving you positioned as a believer that “the ends justify the means [provided that my team wins].”
@Michael Reynolds: In defense of Zero-Hedge Trumpie, you are leaving out the boutique banking services of Deutsch Bank–and I assume other similar operations. I don’t know how much money these operations have to
launderloan out to marginal borrowers, but I’d be willing to guess that a big chunk of it has been going to Trump. I would also guess that he’s pretty much leveraged out his “real estate empire” and will need a new scam when he leaves the White House no matter what year that happens.Financially, the best thing that can probably happen to Trump is to have a massive MI on November 3rd. Not good news for his family to be sure as they’d be left holding the bag, but priorities are what they are.
Variation on an old joke: Trump, Xi, and Putin are on a life raft in the ocean when suddenly a German Uboat surfaces and fires a torpedo at their raft. Who is saved?
A: The world.
@Jen: Moreover, which ones of “the people who wrote it” would be willing to grant her the authority to make an interpretation of what they were thinking and what they meant? Her gender itself renders her opinion non-authoritative. It’s pretzel logic.
@An Interested Party:
As I said, that is one of several possibilities.
But your argument is a post hoc argument. At the time Democrats nuked the filibuster no one was making the argument you’re making here and now. The reason they nuked it had nothing to do with fears that the GoP might nuke it first or about fears of what McConnel might do in the future.
And you didn’t reply to the second (and most important) part of my argument, which is that escalation only gives a brief advantage and ensures the opposition will use that same tool against you.
It would be nice if people could just at least admit that these escalatory measures are risky, given the substantial evidence that is the case.
The claim that the only choice is to escalate or “do nothing” actually proves the point because that is exactly the logic of escalation wherever it is found.
Furthermore, Republicans have gained as much power in the judiciary as they have because of Democratic escalations. Again, nuking the filibuster has – in fact- benefitted the GoP more than it has the Democrats up to this point. Packing the court risks the same result.
Indeed, like Trump not tweeting for the rest of his life is one of several possibilities…possible? Sure…likely? Absolutely not…
Would you care to offer a third choice?
That seems to be based on the assumption that Republicans would not have gained that power if Democrats had not escalated, a quite flawed assumption considering how ruthless McConnell has been in achieving his goals…he has clearly shown that when one party is in charge of the Senate and the White House, it can do whatever it legally wants…Democrats would do well to follow that example…
@Just nutha ignint cracker:
in December my 69-year-old dad was sitting in a chair and fell over on the floor. The paramedics said he was probably dead before he hit the ground. Massive heart attack. He had severe diabetes, and some other health problems. But it was just 3 2 1 lights out. I used to work in hospitals. I’ve seen people waste away in hospital beds from bone cancer in agonizing pain. I’ve seen people take a month to die from liver failure. When my dad died I wasn’t even sad, because if you gotta go, you wanna go the way he went. Alive, alive, alive, BAM. Dude lucked out.
@MarkedMan: “Let’s try that again. When Bush won, he (or rather, the porto-Federalist Society) started nominating highly partisan judges into virtually position. ”
Let’s try that again. When Bush was given the presidency by five right-wing justices in an argument so ludicrous on its face even they said it could never be used as precedent, he starting nominating…
@Andy: You are correct in an academic sense, however, I believe you err in making a “long term” assessment at this point. There is risk in any play and I believe the Democrats made a calculated risk that they were best positioned demographically to win the Presidency more often than Republicans in the long term. They lost their first bet believing HRC could beat the Republican nominee and certainly beat Trump. They lost the percentage play but it appears, one cycle later, that they again have the odds in their favor. I don’t believe you are correct in treating one Presidential cycle away from Obama as “long term”.
With pretty much every “also ran” that could be the Republican Nominee tarred with the stench of Trump–it appears the Democrats again have the long term odds in their favor. You win some you lose some–but it appears they have the odds on their side for court reform and little chance of Republicans being positioned to escalate or response with any impact.
@Andy: I also think you failed to consider the weight in priority of posturing the Judiciary for both Parties. Its clear the Judiciary angle was only partially uncontested space for the Republicans until the Trump Administration. Now its fully contested–which makes for different outcomes over the long term as both Parties factor their moves and counter moves into their calculus.
Its a different fight assaulting a beach with no defenses than it is is assaulting one with defenses and reinforcements.
@Andy: “It would be nice if people could just at least admit that these escalatory measures are risky, given the substantial evidence that is the case.”
It would also be nice if you were to actually consider these “escalatory measures” in context and provide some kind of suggestion of an alternative. Because these measures can only be “risky” when compared to a different course of action.
It’s really easy to keep saying “they were risky!” But unless you can say that there were other moves possible that were less risky, then it turns out it wasn’t the escalation that carried the risk but the situation to which escalation was the chosen response.
@An Interested Party:
Since we are talking counter-factuals, we both must use assumptions. It’s your assumption that doing anything other than what the Democrats actually did would have benefited the GoP more in the counter-factual than it has in reality. That assumption is both questionable and relies on a series of other questionable assumptions. Not to mention the post hoc reasoning discussed previously.
And the other mistake you make is assuming McConnell’s ruthlessness is the primary or only relevant factor that matters. He’s had a razor-thin margin and would have to depend on the votes of a handful of moderate GoP Senators for any action and all of them have long been (or at least were for most of the last two decades) predisposed to preserve Senate rules and norms. Democratic actions (nuking the filibuster and then pointlessly filibustering Gorsuch) gave those moderate senators the political space and justification they needed to seat Kavanaugh and justify GoP escalations. It’s highly unlikely that McConnell could have gotten them to agree to the nuclear option, much less for SCOTUS nominees, absent the Democrats breaking that norm first. This is particularly true given Kavanaugh’s flaws.
So this illustrates another problem with escalation – it tends to unite and not divide opponents. Taking actions that one reasonably knows will result in a more united opposition does not make a lot of sense unless the payoff is really worth it. And for nuking the filibuster, the payoff was at least arguably not worth it considering the result is going to be a 6-3 Supreme Court.
Not attempting a doomed filibuster on Gorsuch would be a start. Several Democratic Senators, including Michael Bennet from my own state, have that view.
I would also note that my position is not an isolated one on the nuclear option – many Democrats have argued the same thing including Chuck Schumer who has maintained all along that Reid nuking the filibuster to begin with was a mistake. I don’t know if anyone has asked him your question, but presumably, he and those who agreed with had some idea of a “third choice.”
My guess is that the third choice is an option that is always present in any conflict escalation scenario – match what the other side does and escalate only when there is a decisive advantage in doing so.
Now I understand that several here, perhaps including you, hold the view that failing to escalate and instead of engaging in reciprocity is “weakness” and “disarmament.” I think that view is not only wrong but is also a perfect example of the psychology of escalatory spirals. It’s a feedback loop with each side deluding itself that each escalatory ratchet is necessary, warranted, and is sure to cause the other side to back down or negotiate from an unfavorable position.
And this, in my view, is exactly what is happening in the judicial wars. The next escalations the Democrats are considering won’t be any different except in terms of scale.
@Jim Brown 32:
Jim, thanks for your excellent comments.
I think you’re right that “long-term” is debatable. Personally, I’m looking back at the last 20 years when the judicial wars started to get hot, but we could go back another 8 to the Clinton Presidency when Republicans started blocking nominees in committee (which was one of the primary reasons Democrats used to justify using the filibuster during Bush’s term).
That may be true now. But then again, I’ve heard variations of that argument for the last 40 years from each side claiming they were poised for long-term or even enduring control of the government. It hasn’t happened yet.
And when Democrats previously escalated over the past 20 years, they did not have the apparent political advantage they have now.
If I’m understanding you correctly here, I think that supports my position – the escalation spiral has resulted in the judiciary being fully contested. This really should surprise no one since that’s how an escalation spiral works. But I don’t see how this changes the fundamentals since both sides seem intent on continuing to escalate whenever possible. What’s changed is the perceived stakes and the level of damage to civic institutions.
Escalatory spirals are unsustainable by definition but are difficult to end because of the feedback loop. And the side that is losing in an escalatory spiral (whether the losing is real or perceived) is not incentivized to throw in the towel, but to engage in even bigger escalations – which is exactly what the Democrats are considering now and not just to restore some status quo ante, but to gain an advantage.
I asked this before, how does this end? I’m reminded of the classic Star Trek episode “Let That Be Your Last Battlefield.”
@Andy: Andy, great counter points. My point about partially versus fully contested space was in reference to the fact that Republicans, without a doubt, have been achieving their objectives in spite of Democratic passive defense. Assuming the most likely scenario (according to current data) of Republicans losing both the Presidency and the Senate–they will have fired they last salvo with ACB against mere passive defense by Democrats WRT to the Judiciary.
I believe Democrats will expand the Judiciary to include the SCOTUS to water down Federalist Society influence within that Branch of government. Yes, this represents an escalation–but not an escalation in kind. This is a round house kick in what used to be a boxing match–hard to predict how your opponent will react to an assymetric response. Even when Republicans invariably get control of the Presidency and Senate again–they won’t ever again find the light resistance and nonchalants about Judges by Democrats or their voters that allowed them to make as much progress as they have over the past 30 years. They may have to take escalatory action within the Legislative or Executive Branch to check any Reforms the Democrats make to the Judiciary.
Where does it end? Well, unless we figure out what Free Speech and Campaign Finance means in an era of 24/7 special interest TV news and social media disinformation–it probably ends up with people shooting at each other. That’s how it goes down when these elements stir the pot overseas–I don’t see why America would be any different–unless action is taken.
@Jim Brown 32:
Thanks Jim! I think you make some good points.
I’ve run out of time for further debate in this thread, but I just wanted to pop in and thank you and everyone else for the civil discourse.
@Blue Galangal: And there in lies the problem in my mind. If the President sends a name to the Senate; the Senate should be required to hold a hearing and a vote forthwith. No holding it up. The vote is he vote if nominated.