Supreme Court Situation (Court "Packing" Debate)

[bryan]

First post here. From browsing around, it looks like things are very polarized here, so I'm not sure if an objective debate is possible, but let's try.

Quick Background:

Supreme Court Justice Antonin Scalia died on Feb 13, 2016 - approximately 9 months before the election. President Obama nominated Merrick Garland on March 16, 2016.

The Republican-led Senate stated that the next president should nominate a judge to fill the vacancy and refused to conduct hearings to allow the nomination to move forward it remained vacant until President Trump's nomination of Neil Gorsuch on Jan 31, 2017.

Ruth Ginsburg died on Sept 18, 2020 - approximately 1.5 months before the election and despite their earlier position (that the next elected president should nominate a nudge to fill an election year Supreme Court vacancy), the Republican-led Senate is on track to confirm Amy Barrett to fill the Ginsburg vacancy.

If successful, Republican-nominated judges would outnumber Democratic-nominated judges by 6-3.

Back to Present

Now there are questions about what Joe Biden should/would do if elected President. Some on the more progressive/left side of the Democratic party think he should expand the court and add more liberal judges. Republicans say that that would be "packing the court" and manipulating the structure/make-up of the court just to give the advantage back to the liberals.

Let's State Our Positions and Debate!

It's easy to take a partisan approach to this and create an argument to suit your desired outcome. But if the argument isn't based on fairness, logic, and reason, it may well just be contrived and weak as a result.

So TRY to take yourself out of the particulars on whether "your side" has the advantage or disadvantage with the current situation, and propose what you think is a fair approach going forward to address (or not-address) the current situation and recent history in the Quick Background section.

I've thought a lot about this, and it bothers me that people can't take their blinders off and debate things respectfully and objectively. So let's see if we can.

My thoughts will follow in the next post.

[bryan]

So here's what I think:

The problem all started with the Republican Senate's refusal to move the Garland nomination forward. 9 months prior to the election (>11 months prior to next president taking office) was clearly PLENTY of time to conduct hearings and have an up/down vote on the nomination. But their argument was that a Supreme Court seat vacated in an election year should be filled by the next president because it should reflect the will of the people, who would have their say later that year.

They used that argument despite there being a fairly recent precedent to having an "opposite party"-led Senate approve a President's nomination in an election year: In 1988. an election year, a Democratic-led Senate approved Republican President Ronald Reagan's nomination of Anthony Kennedy.

So they tried to establish a new rule, attempting to justify it with noble, idealistic-sounding reasoning.

Now, if the Republican Senate simply said "We refuse to move the nomination forward, because we have the power to kill it" . . .well, that's clearly obstructionist politics, but at least it's truthful. The problem with that is they could choose to kill nominations in any year - the 1st, 2nd, 3rd, or 4th year of an opposite-party President's nomination. And that's clearly not how government is supposed to work, so they linked it to it being an "election year".

So, to me, that's really where the problems started.

Now, with the Ginsburg vacancy and Barrett's nomination, Democrats argued that the election year precedent of 2016 was reason to leave the seat vacant until the next President could select the nominee. Since Republicans could no longer use the previous "election year" argument since the 2020 vacancy occurred more than 7 months closer to the election than the 2016 vacancy, they changed their reasoning to say that a same-party Senate and President can/should fill a vacancy. There's no logic to that argument, but at least it gets us closer to the truth that "the results" outweigh consistency in logic.

I would argue that the contradiction in logic between 2016 and 2020 is itself a form of Republican court-packing - manipulating the make-up of the Supreme Court by not following consistent rules and standards in the nomination/approval process.

My assertion is that a nomination by any sitting President, even in an election year, should move forward. A President's term is 4 years and their right to nominate a Supreme Court candidate should hold for those 4 years. The people will have their say in an election, and when their choice for President takes office the following January, they will also have their 4 years to make their nominations.

Now if a vacancy occurs too close to the next inauguration and turnover in the Senate, then there may not be enough time. And games can be played by both sides to try and speed things up or slow things down (to beat or run out the clock), so I think there should be a bi-partisan agreement on what time is sufficient to run through that process.

Using that argument, the Garland blockage was not valid and the Barrett nomination is valid. So the Republicans effectively "stole" one Supreme Court seat.


As far as what to do about that: If the Democrats win the Presidency and the Senate, I think they have a reasonable basis for adding two Supreme Court seats to mitigate the effect of the stolen seat. I don't think I need to explain in detail, but it basically takes two extra seats to undo the effect of the stolen seat and restore the balance back to what it would have been had the seat never been stolen. The Republicans would still have a 6-5 advantage on the court, but that "advantage of 1" would have been there even had Garland been confirmed and Trump had his two valid nominations.

Even though it expands the number of justices by 2, I don't see that as Democratic "court packing" - I see it as undoing the effect of an obstruction that never should have happened. I would be dead against the Democrats adding 4 seats to gain a 7-6 advantage. That, to me, would be simply taking advantage of a majority and would indeed be court packing.

Had the Republicans blocked Garland, BUT remained consistent with their own logic and left the Ginsburg seat vacant, I would argue that nothing should be done.

As an aside: I also think both parties need to agree to raise the standard for the number of votes required to confirm a Supreme Court nominee. A simple majority makes it too easy for the majority party to force through an extreme justice and with lifetime appointments and the stakes being as high as they are for the highest court in the land, I believe the standard should be higher to make it possible to confirm moderate justices and hard to confirm extreme justices.

OK, I've had my say. What do you all think is fair and reasonable?

[donquixote99]

Remember the moral teachings of 'Butch Cassidy and the Sundance Kid." The Republicans, in advancing the Barrett nomination, have declared their position to be 'no rules in a knife fight,' and are therefore eligible for a swift kick in the nuts. Butch Cassidy uses the advantage gained to knock his rival out, but, importantly, not to kill him.

I don't want to go too far with this illustration--screenwriter William Goldman was just working on establishing Butch as a likable character, not on building a moral philosophy. But basically, his scene works because we the audience WANT rules. We cheer the downfall of the 'no rules' guy. And it is by showing restraint, by knocking is rival out instead of slitting his throat, the outlaw leader Butch Cassidy restores the moral order.

In the political knife fight now occurring in the real world, people of normal good will want just that. What brings the Republicans back is a sharp check on their ruthless action, but not an attempt at a death blow. I actually think Bryan's suggestion of two new court seats, but not four, takes us there.

Dispicable as the in-office GOP has become, remember they were not always this way. Parties that go extreme don't stay there, because the electorate won't let them stay there. Trumpism has never commanded a majority, and is about to be corrected by a landslide repudiation. Afterwards, let's not kid ourselves about the desirability of permanent one-party rule by either side. Either party, possessed of unchecked power, will be corrupted by it. The goal must be to decimate the Republicans, but not destroy them. Forbearance in court-packing would be an important 'we can go forward together' olive branch.

Of course, if the Republicans try the no-rules-in-a-GUNFIGHT approach, we'll have to go to Butch's plan B, delivered soto-voice to Sundance: "...kill him."

[donquixote99]

Welcome to the forum, Bryan.

[JJIII]

Welcome!

[Oerets]

Welcome to PC!

In a nutshell the Republican Senate slow walked judges in Obama's term. Long before the opening on the supreme court. The Republicans more then just practiced court packing once trump arrived. Approving hundreds of federal judges, majority left vacant unfilled during the last administration by the senate. Also the three on the supreme court.

https://en.wikipedia.org/wiki/List_o...y_Donald_Trump

Have now little, no credibility in or objecting too, they the republicans as I see it when it comes to the possibility of increasing the numbers if or when it happens.

[mpholland]

The original court was six members I believe. It has been expanded and shrunk 5 times in the past. Roosevelt attempted to expand it again in 1937, but failed. The idea isn't new. Lincoln was successful in getting Congress to create a new circuit during the civil war to make the largest ever SCOTUS at 10, and only 3 years later the judicial courts act reduced it back down to 9. The wording was supposed to take it back to 7, but congress increased it again before enough seats were vacated to make the 7.

Another option would be to take a new look at the definitions of "good behavior", which is what currently allows justices to serve for life. It seems to me that Congress and lower courts should be able to utilize that term to have a measure of control over the SCOTUS. The one thing we have to remember is that vindictiveness runs high in politics and anything one side does opens the door for the other down the road. This has been so prevalent of late that Congress is pretty much just a body attacking and defending its powers more than actually utilizing them. This is bad for the American people, no matter what party they belong to.

[bryan]

First, thank you all for the welcome and the balanced viewpoints (in my opinion, balanced). I think everyone that's commented here so far is more on the Democratic side or leans that way, correct? I'm hopeful that we'll hear some from the Republican-leaning side as well.

Originally Posted by donquixote99

Remember the moral teachings of 'Butch Cassidy and the Sundance Kid." The Republicans, in advancing the Barrett nomination, have declared their position to be 'no rules in a knife fight,' and are therefore eligible for a swift kick in the nuts. Butch Cassidy uses the advantage gained to knock his rival out, but, importantly, not to kill him.

I don't want to go too far with this illustration--screenwriter William Goldman was just working on establishing Butch as a likable character, not on building a moral philosophy. But basically, his scene works because we the audience WANT rules. We cheer the downfall of the 'no rules' guy. And it is by showing restraint, by knocking is rival out instead of slitting his throat, the outlaw leader Butch Cassidy restores the moral order.

In the political knife fight now occurring in the real world, people of normal good will want just that. What brings the Republicans back is a sharp check on their ruthless action, but not an attempt at a death blow. I actually think Bryan's suggestion of two new court seats, but not four, takes us there.

Dispicable as the in-office GOP has become, remember they were not always this way. Parties that go extreme don't stay there, because the electorate won't let them stay there. Trumpism has never commanded a majority, and is about to be corrected by a landslide repudiation. Afterwards, let's not kid ourselves about the desirability of permanent one-party rule by either side. Either party, possessed of unchecked power, will be corrupted by it. The goal must be to decimate the Republicans, but not destroy them. Forbearance in court-packing would be an important 'we can go forward together' olive branch.

Of course, if the Republicans try the no-rules-in-a-GUNFIGHT approach, we'll have to go to Butch's plan B, delivered soto-voice to Sundance: "...kill him."

Thanks for the thoughtful reply. I like the wisdom (and optimism) that "parties that go extreme don't stay there" - I do hope that's true and that a significant amount of the extreme polarization between parties starts to dissipate when Trump is no longer President. As well as your point that unchecked power, by either side, can lead to corruption. Finally, I agree that forbearance and focusing on rectifying a wrong versus exacting vengeance and punishment gives us the best possibility for going forward together, even with our differences.

I think it's inevitable that the far right will position even a two-seat addition as reprehensible court packing and exploiting an advantage. I would hope that more moderate Republicans and more balance-minded elder statesman of the party would see that as a reasonable and fair action and be open with their opinion about it. Leadership (even just "thought leadership") shouldn't be just a "when you're in the majority" thing.

And also inevitable that some on the far left will say that it doesn't go far enough and Democrats are being suckers by not using their advantage to get an overall advantage. But that would lead us to a tit-for-tat cycle that wouldn't end well.

I don't know what Biden would ultimately do if he's elected with a Democratic Senate, but I'm optimistic that he would be a voice to tell the far left that it's unwise to take advantage of an advantage and forbearance and attempting to do what is just/fair is what can help to unify us.

Really, if something is done, the Democratic messaging of the "why" will be important, and I think part of that is making the case that an expansion (assuming no more than 2 seats are added) is not "court-packing" but rectifying the inconsistent application of the election year "rule".

Originally Posted by Oerets

Welcome to PC!

In a nutshell the Republican Senate slow walked judges in Obama's term. Long before the opening on the supreme court. They more then just practiced court packing once trump arrived.

Have no credibility as I see it when it comes to the possibility to increasing the numbers if or when it happens.

I agree with the first part about slow walking judge appointments - I believe that's why Harry Reid had to do away with the filibuster for certain judicial approvals, correct? Can you please explain your second comment, as I'm not sure who the "they" is as far as having to credibilty, etc. Thanks.

Originally Posted by mpholland

The original court was six members I believe. It has been expanded and shrunk 5 times in the past. Roosevelt attempted to expand it again in 1937, but failed. The idea isn't new. Lincoln was successful in getting Congress to create a new circuit during the civil war to make the largest ever SCOTUS at 10, and only 3 years later the judicial courts act reduced it back down to 9. The wording was supposed to take it back to 7, but congress increased it again before enough seats were vacated to make the 7.

Another option would be to take a new look at the definitions of "good behavior", which is what currently allows justices to serve for life. It seems to me that Congress and lower courts should be able to utilize that term to have a measure of control over the SCOTUS. The one thing we have to remember is that vindictiveness runs high in politics and anything one side does opens the door for the other down the road. This has been so prevalent of late that Congress is pretty much just a body attacking and defending its powers more than actually utilizing them. This is bad for the American people, no matter what party they belong to.

Yes, totally agree about that open door and cost of vindictiveness. The standard of "good behavior" and applying that as a means of control will be tricky. It would have to be attempted on a bi-partisan basis when there was no vacancy in question. In other words, try to have a reasoned debate/negotiation on what this involves when the stakes aren't high.

[mpholland]

Originally Posted by bryan

First, thank you all for the welcome and the balanced viewpoints (in my opinion, balanced). I think everyone that's commented here so far is more on the Democratic side or leans that way, correct? I'm hopeful that we'll hear some from the Republican-leaning side as well.

I guess I forgot to welcome you.

Welcome!

There really isn't a party that applies to me so I am non-affiliated. Admittedly, I do lean to the right of center, but more toward libertarian than republican. I also have an ability to understand all sides and prefer more to listen than speak. I am far more "fair and balanced" than Fox.

[bryan]

Originally Posted by mpholland

I guess I forgot to welcome you.

Welcome!

There really isn't a party that applies to me so I am non-affiliated. Admittedly, I do lean to the right of center, but more toward libertarian than republican. I also have an ability to understand all sides and prefer more to listen than speak. I am far more "fair and balanced" than Fox.

Thanks mpholland, for the welcome and appreciate the background on you as well. Big fan of "fair and balanced", even if the perspective is different than mine might be. But I'd bet there's a lot of overlap as well. Fundamentally, I think everyone has more in common that it seems at times.