Supreme Court Situation (Court "Packing" Debate)
 

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.

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?

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."

Welcome to the forum, Bryan.

Welcome!

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.

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.

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.

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".

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.

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.

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.

Edited my post.

Added info and comments.


The they are Republicans.

U.S. Supreme court rejects Republican bid to limit mail-in voting in Pennsylvania

https://www.reuters.com/article/us-u...-idUSKBN2742ZH

4-4 ruling, so lower court ruling stands. Shows, however, that another conservative justice (Barrett) would likely have changed the ruling, against democracy. Court packing may very well be necessary to restore the rule of law, which the Federalist Society is determined to destroy.

On the bright side, Chief Justice Roberts has at times shown open-mindedness and willingness to side with the liberal side of the court. It's not clear whether those instances are a reflection of his beliefs or greater desire as Chief Justice for the court to be perceived as balanced and not purely partisan.

But assuming Barrett gets confirmed, this does indeed throw off the ability and influence of Roberts to be a balancing force.

It will be interesting to see how things play out, but as stated in my second post, I think fairness dictates that something be done to re-balance the court given what Senate Republicans have done over the past 4-5 yrs.

CJ Roberts aside, I haven't kept up with how fair-minded the other conservative justices are. If the election is certified for Biden and Trump/Republicans try to contest certain election results all the way up to the Supreme Court to pave a path for Trump to steal the election, it remains to be seen if some of the conservative justices will prioritize justice/fairness over where they might personally lie on the liberal/conservative spectrum.

If the court were to vote along partisan lines (even if Roberts sided with the liberal side, but the remaining conservative side "won" 5-4) and the election results were overturned, it would be a disaster in terms of public trust in the court.

A Supreme Court justice really has the ultimate in "tenure" and job security. While an ambitious rising judge may need to play a certain game to curry favor and position themselves to be nominated by a President to the SC in the first place, once they're confirmed, there's no higher level for them to reach and no reasonable way they can be removed.

With that freedom, any given Supreme Court judge (whether liberal or conservative) would ideally trend toward being more open-minded and less dogmatically beholden to their political party.

My opinion is that the Republicans seek to enter this knife fight with an assault weapon. I don't see things as going back to "reasonable" when tRump leaves office. The Republicans have been on this march to one party rule for quite some time. Their "packing" of the SC IMO is an attempt to make law outside of Congress. IE appeal everything they don't like up the chain to the SC and have the conservative majority decide in their favor. Being new here you probably not seen my opinion that the current Repub party needs to be ended/terminated/kicked to the curb/abolished/done away with entirely and replaced with something else. As I said, my opinion. Back to the topic I think adding two more seats to th SC would be a good counter to the Repubs trying to stack the SC in their favor.

Out of all registered Republicans, I have no idea how many have permanently shifted to the far-right and away from objective facts and how many have simply been mesmerized by Trump and have a chance to come back to their senses once he's gone.

Based on the fact that something like the Lincoln Project was formed and the number of prominent Republicans that have endorsed Biden, there's some signs that there could be an internal struggle for the party to either get back to their roots or continue along their current path. Those that have publicly rejected Trump are just the ones that have been brave enough to do so - I have to think there are many more that are at least conflicted about the path their party has taken, but don't want to rock the boat.

Realistically, the Dems or middle/Independents can't and won't be the ones to end/abolish the Repub party, nor should they try. Attempting to force change, IMO, will only serve to put Repubs on the defensive and at least temporarily coalesce them to resist outside forces. They'll have to internally combust on their own or have an internal civil war that fractures and reforms into something new/different.

But, at the root of any party, is not just (or even predominantly) ideals - it's the desire for power and control. Even apart from their recent "radicalization", the demographic changes in the country simply don't favor today's Repub party. Their continuing to become even more extreme won't reverse that trend - it'll just alienate more reasonable people.

At some point, I think they realize that and will be forced to become more inclusive - otherwise they'll realistically only rarely be able to win elections. I think it's more likely they go back to more traditional Repub ideals and be forced to reject the far-right fanatics in favor of drawing in more fiscally and socially conservative independents, minorities, etc. And not to sound too cynical, but I really don't think that'll be because of some epiphany of how inclusiveness is right after all, but will be a calculated decision to maintain relevancy.

Meanwhile, I don't think it'll all be wine and roses on the Dem side either. There will be an internal struggle between more aggressive progressives and more traditional moderates. However, I don't think it'll be as ugly and fracturing an internal struggle as will happen on the right. Fundamentally, there's a lot more overlap (IMO) between progressives and moderates, but the differences are more related to timing, extent, and methods to achieve those objectives.

Where the Republican party currently is I blame on the politicians leading it. Their lusting for power and their prostitution of themselves have led them down this path. The death of the party must come from the members themselves. This won't happen unless they have somewhere else to go. We must have two parties willing to work together. The current crop of Republican leaders with a few (too few) exceptions won't do this. Don't get me wrong the Democratic party isn't only comprised of saints but the Republican party politicians are actively working against the interests of the American people. Certainly there are progressive Democrats that want their way but this "leftist takeover" of the party the Republican party is promoting is nonsense.

I can pretty much agree with that on a national level. In Oregon however the whole state is controlled by 3 cities that are all democrat. Portland/metro area alone is almost half the states population. They don't understand the issues of rural Oregon and are very selfish to that end. We actually have part of our income tax go to metro lifht rail which only serves the Portland area. There are several other instances that are similar. The fact is rural Oregon can do nothing about it and that is where a lot of the angst comes from. The huge majority of Oregon area is red, but the tiny area of dense population is blue and serve only the big cities. The electorate therefore is blue by supermajority so with the exception of a few counties the governor and legislature is despised by the rest of the state. It isn't extremism that is the problem here, it is simply a tint area of the state holding a huge population. That is also where my feelings stem from for those who argue against the electoral college.

Sorry about the spelling, my phone doesn't do this sight well, and I can't see until I'm done.

Wouldn't that be because the huge majority of Oregon is unproductive dry land? How many votes in the legislature should a hundred square miles of desert get?

Sure, the rural folk's taxes get mixed into the general fund that pays for everything. Now, what percent of that fund are the rural folk's taxes? Less than the straight per capita share, I suspect.

I hear you about the resentments, and I believe. Now give me facts, figures, and practical suggestions.

Reacting to Biden's statement about creating a bi-partisan commission made up of Constitutional scholars to recommend changes to the court: I think it's a smart as long as both the liberal and conservative scholars on the commission have a track record for being open minded and respected for their past publications and positions.

I do think 180 days is too long - I would think 90 days should be more than enough. Given that it would take time once the recommendations are made, the court could be in the 6-3 position for 9-12 months before any changes are made.

Plus, from what I understand, it's Congress that would actually propose any changes, not the President. So depending on how a Democratic led Congress wants to proceed (assuming Dems win the Senate), Biden may create the commission but not get the recommendations before he has to take a public position on what Congress is trying to do.

I'm thinking that making meaningful changes to how SC justices are selected, etc. would require amending the Constitution. I see Biden's commission as a politcal smoke and mirrors response to a politcal, not constitutional, issue/problem.