Court Packing

Bernie Sanders' Alternative to Court-Packing is Almost as Bad

It may be better only in so far as it is much more likely to get invalidated by the courts.

|The Volokh Conspiracy |

Senator Bernie Sanders (I-Vermont).

Over the last two years, a debate has arisen on the left over the issue of whether Democrats should try to "pack" the Supreme Court in response to what many see as the GOP's illegitimate appointments of Justices Neil Gorsuch and Brett Kavanaugh. By expanding the size of the Court, advocates hope to add enough liberal justices to reverse the current 5-4 conservative majority on the Court. At least for the moment, Sen. Bernie Sanders is arguably the front-runner for the Democratic  nomination for president. That makes his position on this and other issues all the more important.

The  good news is that Sanders says he is against court packing, which is a contrast to some other current and former Democratic presidential candidates. The bad news is that his alternative plan is almost equally bad. Sanders appears to understand the downward spiral that conventional court-packing is likely to create:

Court-packing, Sanders told MSNBC's Stephanie Ruhle during an event titled "Our Rights, Our Courts," would produce a kind of death spiral for the Supreme Court.

"We add two more judges. The next guy comes in — maybe a Republican — somebody comes in, you have two more," and before you know it, he said, "you have 87 members of the Supreme Court. And I think that delegitimizes the Court."

To my mind, the big problem here is not just "deligitimization" of the Court, but the risk of gutting judicial review by allowing and party that simultaneously controls the presidency and Congress to immediately fill the Supreme Court with its own political allies, thereby ensuring that their preferred policies would get little or no judicial scrutiny. That is what makes court packing qualitatively different from other political maneuvers the two major parties have resorted to in their ongoing struggle over judicial nominations. While Democrats have every right to respond to GOP nomination "hardball" in kind (and vice versa), court-packing would go far beyond that for reasons well explained by liberal legal scholars Noah Feldman and Neil Siegel.

I. Sanders' "Rotation" Proposal

Still, Sanders understands at least some of the risks likely to be created by court-packing, To avoid them, he proposes a plan under which justices can  be "rotated" off the Supreme Court:

But then he suggested another alternative: It may be possible to "rotate judges" off the Supreme Court and onto lower courts.

"A federal judge has a lifetime appointment," Sanders told Ruhle, but the Constitution "doesn't say that lifetime appointment has to got be on the Supreme Court — it's got to be on a federal court."

The Sanders campaign did not respond to a request for comment regarding this proposal.

Instead of adding new justices to the Court, Congress could pass a law removing some of the current justices and transferring them to lower courts (or, alternatively, giving the president the power to do so). Then, the president can appoint new Supreme Court justices who will be more to his or her party's liking. Instead of countering the appointments of Gorsuch and Kavanaugh by creating new Supreme Court seats, this approach would allow Sanders (or some other left-wing president) to simply transfer them to some lower court, and then replace them with liberal justices.

It isn't hard to see how this plan could easily lead to the same sort of spiraling dynamic as court packing. Imagine Sanders gets elected president in 2020 and—with the help of a Democratic Congress—sends Gorsuch and Kavanaugh to judicial purgatory. Perhaps they end up being consigned to a specially created federal court that considers weighty matters such as appeals of tickets issued to vehicles illegally parked on federal government property. Meanwhile, their Supreme Court seats get taken by newly appointed liberal justices.

How would the next GOP president and Congress respond? Most likely they would do the same thing to two (or more) liberal justices. Perhaps Elena Kagan and Sonia Sotomayor end up joining Gorsuch and Kavanaugh as parking ticket court judges. Meanwhile, two new conservative justices take their seats. Of course, the next Democratic president backed by a congressional majority would retaliate in kind, and so on.

The end result would be the neutering of the courts as a check on the power of any president backed by a congressional majority, which is exactly the risk created by conventional court-packing. Indeed, justices would hesitate to get on the bad side of almost any president, for fear that his or her party might gain a majority in the future, and then transfer them to some judicial hell-hole.

The ability to undermine judicial review as a check on government power is the main reason why court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela. Sanders' "rotation" proposal can easily be used to achieve the same result by slightly different means.

Of course Democrats could (and likely would) argue that Gorsuch and Kavanaugh are special cases, because the former got a "stolen" seat thanks to the Republicans' blocking of President Obama's nomination of Merrick Garland, and the latter was confirmed by GOP-controlled Senate despite the sexual assault accusation against him. But such "special case" arguments can be made to justify conventional court-packing as well. Neither is likely to persuade Republicans not to retaliate in kind.

I have somewhat more sympathy for complaints about the process that led to Kavanaugh's confirmation than complaints about the "stolen" seat. But, for purposes of predicting the likely reaction to Democrats' adopting Sanders' rotation idea, it doesn't really matter what I think, or what the Democrats themselves think. What matters is whether Republicans (and GOP-leaning independents) will accept the idea that Democrats are entitled to dump Gorsuch and Kavanaugh without risking retaliation in kind. For obvious reasons, such agreement is highly unlikely.

The one way in which Sanders' rotation proposal may be less dangerous than court-packing is that the former is far more likely to be invalidated by the courts, as unconstitutional. As Ian Milhiser of Vox points out in an article otherwise somewhat sympathetic to Sanders' idea, the rotation proposal probably violates the Constitution's requirement that judges "shall hold their offices during good behaviour." Moving a Supreme Court justice to a position that is obviously a different office—albeit still in the judicial branch of  government—surely violates this rule, which is generally understood to allow judges to hold their offices for life, absent some sort of egregious wrongdoing on their part.

I will not try to assess the constitutional issue in detail here. But I would add that any legal challenges to the "rotation" of justices off the Supreme Court will themselves be considered by the courts. And judges will have obvious incentives to rule in a way that prevents the president and Congress from seizing the authority to send them to the judicial doghouse whenever they issue decisions that the party in power disapproves of. Even if the  specific justices who the president seeks to remove are recused from the case, the remaining justices are unlikely to uphold a plan that will predictably place their own positions in jeopardy in the future.

By contrast, conventional court-packing is pretty obviously constitutional. The Constitution does not establish a set number of justices for the Supreme Court (or any court), and Congress can (and in the nineteenth century actually did) change their number at will. Court-packing constrained only by political norms against it, norms which may now be eroding.

But even though it is unlikely to survive legal challenge, it is premature to say that Sanders' rotation plan is harmless. Should Sanders (or some other president) make a priority of enacting this plan, and a Democratic Congress goes along with it, a judicial decision invalidating the plan could lead to an ominous confrontation between branches of government. Would Sanders—who has a history of admiring authoritarian socialist regimes—simply accept the courts' decision, or would he claim it was illegitimate and not entitled to obedience? If he chose the latter path, it would at the very least create a very dangerous situation, in which the Supreme Court might suffer a "crisis of legitimacy" from which it would be difficult to recover.

II. A Rotation "Lottery"?

Ian Milhiser suggests a somewhat different version of the rotation proposal—first conceived by legal scholars Daniel Epps and Ganesh Sitaraman—could pass constitutional muster:

In an influential paper published in the Yale Law Journal, law professors Daniel Epps and Ganesh Sitaraman suggest two ways to restructure the Supreme Court in the hopes of depoliticizing it. One of their proposals, which former South Bend, Indiana Mayor Pete Buttigieg often touts on the campaign trail, is to expand the Supreme Court to 15 justices and implement a nonpartisan selection method for five of those justices.

Epps and Sitaraman's other proposal is a "Supreme Court lottery."

It works like this: Every one of the 179 active circuit judges would receive a promotion to associate justice of the Supreme Court. For the most part, this promotion wouldn't change their day-to-day work very much — they'd continue to hear cases on their current court, and they'd continue to do more or less the same work they've been doing as circuit judges.

But there would be a catch. Under Epps and Sitaraman's lottery proposal, "the Supreme Court would hear cases as a panel of nine, randomly selected from all the Justices" — meaning that this panel would be randomly selected from among the nine current justices plus the 179 new justices. Epps and Sitaraman would also reshuffle this panel very frequently….

The advantage of this "lottery" proposal is that it might be constitutional. Barring extraordinary events, Congress cannot strip a sitting justice of their "office," but it can give the same office to a whole bunch of additional people. Under the lottery proposal, Gorsuch would remain an associate justice of the Supreme Court. He'd just have 179 new colleagues.

I am skeptical of the constitutionality of this idea, too. Milhiser himself notes that a judgeship in which the justices have the same status as the 179 circuit judges and only a less than 5% chance of getting to vote on any given case, may not really be the same "office" as a Supreme Court seat is today. The lottery proposal also has a variety of potential practical flaws, such as the danger of wild swings in precedent as a more conservative panel reverses the decision of a recent liberal predecessor and vice versa. Circuit courts, which also sit in randomly selected panels, control such tendencies by allowing appeals to the full "en banc"circuit. But it is hard to imagine an en banc procedure in which 188 justices sit on a case.

Another problem with the lottery approach is that, it too, is subject to spiraling escalation. If Democrats enacted a law creating a lottery that includes the 179 circuit judges because they see this pool as more likely to make decisions they like than the current nine Supreme Court justices, what's to prevent Republicans from expanding the pool to include some group of lawyers who are likely to be more conservative? Democrats could then retaliate by changing the pool to be more liberal, and so on.

Pete Buttigieg's plan to increase the size of the Court to 15 and require it to be ideologically balanced may be less risky than either rotation or lottery because it could potentially block future escalation by permanently fixing the size of the Court. In my view, the enactment of his plan would require a constitutional amendment. If, on the other hand, if it could be done by ordinary legislation (as Epps and Sitaraman claim), it too could lead to dangerous escalation. I may have more to say about the Buttigieg proposal in future posts.

Of course, both the Sanders rotation plan and court-packing might seem attractive to those who believe that neutering judicial review is a feature rather than a bug, or at least think that a neutered Court is better than one with a conservative majority. I do not have the space to address these claims in this post, which is already quite long. But I have taken them elsewhere, including here and here.

Noah Feldman and Neil Siegel are far from the only left-of-center critics of court-packing. A good many others oppose it, as well. Hopefully, they will recognize that Sanders' rotation plan creates similar risks.

And, lest I be accused of opposing court-packing only when politically convenient, I will take this opportunity to point out that I have some beefs of my own, with the current conservative majority. Perhaps more importantly, the current round of debates over court-packing began in 2017 when prominent conservative legal scholar Steve Calabresi and his coauthor Shams Hirji proposed a plan for Republicans to  pack the lower federal courts. I opposed that plan for  the same reasons as I now object to Democratic court-packing proposals, and other ideas likely to have a similar impact. The Calabresi-Hirji plan ultimately came to nought; but something like it could easily gain traction in the future, if the norm against court-packing is broken.

 

 

 

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  1. Please elaborate on your concerns with Justice Cavanaugh’ confirmation where he defended himself from an organized smear campaign made up of completely false charges and was confirmed in accordance with the Constitution.
    What did he do that was illegal, immoral or unethical????

    1. Indeed. That throw away line seems the most significant in the entire piece; I’m unaware of any procedural issues AT ALL in the Kavanaugh nomination/confirmation.

    2. Nothing was said about “illegal, immoral or unethical”. You made that up and objected to it. Strawman, meet thy definition.

      1. So if nothing was “illegal, immoral or unethical”, what is the basis for the “complaints about the process that led to Kavanaugh’s confirmation” with which Prof Somin sympathizes?

      2. “Nothing was said about “illegal, immoral or unethical”. You made that up and objected to it. Strawman, meet thy definition.”

        OK, what was said was, “…what many see as the GOP’s illegitimate appointments of Justices Neil Gorsuch and Brett Kavanaugh…”

        So what was even arguably illegitimate about the appointment of Brett Kavanaugh, except that many felt that he shouldn’t be confirmed? The Dems couldn’t even filibuster, having shot their wad on Gorsuch.

        1. You’re still engaging in a strawman. He’s not saying the appointment was illegitimate; he’s saying that many see it as illegitimate.

          I don’t agree with those people, but I understand why they see it that way. And I’m sure if the same thing was done by democrats, republicans would be losing their minds.

          1. Again, how could anybody even arguably claim that Kav was “illegitimate”? I understand that people incorrectly claim that the Senate was required to vote on Garland. But even if the claim against Kav were true, is anybody even arguing that the Senate can’t confirm a rapist to the court, if it chooses? Maybe it would be unwise, but not illegitimate.

          2. He didn’t just say that some people think the appointment illegitimate; That would be a trivial observation, at current levels of partisanship, the mere fact that Kavanaugh was nominated by a Republican President guaranteed that.

            He said, “I have somewhat more sympathy for complaints about the process that led to Kavanaugh’s confirmation than complaints about the “stolen” seat. ”

            What could have led to that sympathy is an obvious question, because there weren’t any procedural irregularities to justify such complaints.

          3. I never said you were a dumbfuck, I just said some people say you’re a dumbfuck.

      3. “Gorsuch and Kavanaugh are special cases, because the former got a “stolen” seat thanks to the Republicans’ blocking of President Obama’s nomination of Merrick Garland, and the latter was confirmed by GOP-controlled Senate despite the sexual assault accusation against him.”

        “Despite” “sexual assault accusation against him,” as if this de-legitimizes his appointment.

        1. Republicans never blocked anything. They simply didn’t consent to the nomination. That was their constitutional part of the appointment process.

          As for Kavanaugh…. we can stop any appointment by mere accusation?

      4. . . . what many see as the GOP’s illegitimate appointments . . .

        He’s assuming that the author agrees that the appointment’s were illegitimate rather than pointing out that there’s been more than a bit of hoopla surrounding them.

        Nothing was said about “illegal, immoral or unethical”. You made that up and objected to it. Strawman, meet thy definition.

        That’s not what happened at all. What happened is he countered that there was nothing ‘illegal, immoral, or unethical’ about those two men, therefore there should be no one seeing their appointments as illegitimate.

        Strawman, meet thy definition.

    3. The process issue is that the Senate had their normal hearings, and nothing really adverse came up. Then, the nomination was ready for a vote, and Senator Feinstein all of a sudden said “Wait! We have someone who claimed that Kavenaugh almost raped them in HS”. What she didn’t say was that her last minute surprise had been replanned, with Feinstein having been in communication with this witness long before the hearings had been completed, and the Senate could easily have heard her evidence with the rest of the testimony. So, because of the optics, the Republicans reopened the hearings, Blasey Ford testified, her story was found not credible by a majority of the Senate, and all of a sudden, complaints that Kavenaugh had committed ever more egregious sexual crimes, with less and less credible evidence exploded. I think ultimately after the smoke cleared, better than a thousand women had come forward claiming something evil by Kavenaugh, and the FBI found none of the claims remotely credible. It was clear at the time that Feinstand the Democrats were trying to delay Kavenaugh’s confirmation beyond the 2018 election, where they had a chance at gaining a Senate majority that could have rejected Kavenaugh.

      In short, the Democrats were cheating for partisan political advantage, and the Republicans, seeing the game being played, ultimately refused to play.

      1. “with less and less credible evidence exploded.”

        I’ll have to quibble with that, since Blasey Ford didn’t provide any evidence or supporting testimony. The fewer details, the harder the claim Is to refute.

        And obviously Swetnick and Avenetti were paid Republican plants whose claims were designed to discredit all the other accusers by the shear absurdity of their claims.

        1. How dare you suggest that the “Creepy Porn Lawyer”, AKA, CNN – MS/NBC Democrat Presidential candidate, Avenatti was a GOP plant! As soon as he finishes serving his likely 40+ year sentence for extortion, he’ll likely sue you … for something or other.

    4. Somin has talked about it before; he thought that the Senate should have treated it more as a employee selection process and less of the weird trial thing it became. He believed the Senate should have investigated the claims more seriously rather than split into “he said/she said” groups and then decide on the preponderance of evidence.

      He did not say that Kavanaugh did anything morally wrong during the confirmation.

      1. The Senate possesses no serious investigative capacity. And no one could conduct a serious investigation of a high school party that happened 35 years ago. If that is Somin’s position, it is incoherent.

        1. If that is Somin’s position, it is delusuional.

          FTFY.

        2. One quibble. We don’t know it happened 35 years ago. It could have been 34-36 years ago, lacking both date and location.

          So it wasn’t even enough of an accusation to investigate. It wasn’t a “he said-she said”. It was a “he said- she half-said”.

      2. There wasn’t anything to investigate: It concerned an alleged event decades past at some indeterminant time and place, and those alleged to have witnessed it denied any memory of it.

        How do you investigate something like that? Hop in a time machine and shadow Kavanaugh for several years? The allegation was carefully designed to be unfalsifiable!

      3. “Somin has talked about it before; he thought that the Senate should have treated it more as a employee selection process and less of the weird trial thing it became.”

        You can think the Senate should have done a lot of things. Surely Somin doesn’t think that the Senate is required to delay confirmation of a justice over an uncorroborated decades-old allegation in order to have a legitimate confirmation?

        1. How about a simple term limit?

          Get appointed to the USSC, serve 20 years, get moved out to a nice sinecure somewhere (lower court, traffic court, counting the hairs on fuzzy caterpillars, whatever).

          Now, USSC justices are appointed like they are now, they serve long enough to be able to leave their mark on jurisprudence, no worrying that ‘too many’ will decide to retire during the term of the ‘wrong president’.

          The only disadvantage I see here is that knowing when a justice will leave the USSC then certain presidential elections will become culture war flashpoints.

          And of course, replacement of losses due to misadventure and old-age. But those are rare enough that it would be hard to pack the court that way unless you’re gonna mow them down wholesale. And if we’ve reached that point its time to shut ‘er down anyway.

  2. Rotation would also disrupt the chummy relationship, so often depicted here, between the Justices and the regulars among the Supreme Court Bar. No longer can arguments be tailored to the individual justices. Lawyers who are not regulars will no longer be at a disadvantage. Can’t have that, obviously.

    1. A big problem with rotation would be that the Senate considers nominees differently for lower courts than it does for the Supreme Court, and this is absolutely proper. I think everyone here, liberals and conservatives, would agree that a Supreme Court justice has a lot more power than a trial judge and it’s proper to look at his or her record more carefully in nomination and confirmation.

      So then you are going to rotate someone up into the job who never received that scrutiny?

      1. Rotation between lower federal courts and SCOTUS would work if you subjected all federal court judges to SCOTUS grade vetting.

      2. Exactly, a lot of district court and even appellate level judges are not Supreme Court material.

  3. Ask Bernie if he would be willing to rotate the job of President if he gets elected.

    I’m pretty happy with the 4-4-1 “balanced” court we have had in recent decades and continue to have today.

    IANAL but I do like to listen to SCOTUS oral arguments. Almost every time, I’m impressed by the thorough preparations and valid questions asked by the justices. Every one of them is deserving of the position they hold.

    But in my view, it is primarily the left who look to the courts to accomplish social change that should be settled by elected representatives. During my lifetime the left acted and the right reacted at SCOTUS.

    1. IANAL but I do like to listen to SCOTUS oral arguments. Almost every time, I’m impressed by the thorough preparations and valid questions asked by the justices. Every one of them is deserving of the position they hold.

      Yeah, I agree with you about this. I don’t agree with RBG all that much, but that lady is seriously sharp. I figure a lot of these questions SCOTUS gets are the hardest questions there could be. They do not get any easy questions. How many jusdges before them could not answer the questions. At least a dozen, I suspect. I mean, at the end of the day, they can’t push their questions ‘upstairs’. They’re it. And the arguments are generally very, very close on either side. Really tough calls to make. I love the back and forth.

      I am also fine with ideological and philosophical diversity. In fact, I think we need that with something like SCOTUS.

      I recommend the Short Circuit series every Friday night on Volokh Conspiracy. Great synopses.

  4. The problem now is because of the small size (9), any change can instantly flip the court – which really isn’t healthy for our society.

    I say expand to 25 justices.

    That way each president will (probably) get to put their “people” on the court while not having too drastic flip flops.

    As our society generally (and generationally) swings to the left/right, then the court will also generally swing in that corresponding direction.

    1. I haven’t done the math, but I suspect that although the probability of one single nomination flipping the court would be reduced, the probability of the court flipping during one session of Congress would be unchanged – ie it would take 2.77 times as many nominations to flip the court, but there would (on average) be 2.77 times as many vacancies in any given period.

  5. Sanders plan is a new Trillion Dollar Coin idea.

  6. We need staggered 20 year term limits, set to start 20 years after the amendment passes (to kick the can far enough forward to avoid fights over the current court stopping it from passing).

    1. Why 20 years rather than 18 years (which is what I’ve usually seen proposed)?

      1. 18 seems like the right number, because there are 9 seats and that would give every President 2 appointments per term.

  7. It should be clear that Bernie doesn’t actually object to manipulating the makeup of the Supreme court to guarantee particular outcomes. He simply has some concerns about the mechanics of how to accomplish it.

    1. If Trump somehow wins this election I would support getting rid of the filibuster and packing the courts. And while Democrats are burning everything to the ground they need to look at McConnell and say “this is all on you!”

      1. The lower courts are already being packed by virtue of the Dem’s silly use of the nuclear option and McConnell’s hard work.

        Getting rid of the filibuster risks disaster if a hypothetical president AOC comes along in a wave election after the GOP does something stupid (like invade Iraq) or has bad luck (the economy crashes because of Dem policies but when there is a GOP president).

        1. Getting rid of the filibuster risks nothing, because the Democrats already got rid of it for lower court nominations, and they were quite openly stating before the 2016 election that they’d get rid of it completely if Republicans tried using it after they (they thought!) took Congress.

          The filibuster is dead the moment Republicans need to use it, and we have already been warned of that. So there’s no downside to Republicans getting rid of it first.

          Actually, there IS a downside, and it’s the reason it’s still around: A fair number of the Republican Senators are RINOs who run on doing things they have absolutely no intention of doing. By keeping the filibuster alive for legislation, McConnell has been able to block votes which would have exposed them, and resulted in their being primaried.

          IOW, the Republicans keep the filibuster around to have an excuse for losing fights they didn’t really want to win.

          Not a motive Democrats typically share, so the next time there’s a Democratic Senate, the filibuster is history, count on it.

          1. The blue slip process where a home state senator can simply block any and all district court appointments in their state needs to be looked at again. The blue slip process is being abused, and that is wrong.

            1. The blue slip process has been largely discarded by McConnell.

              1. It is still in use for District Court judges. Senator McConnell did away with the blue slip privilege when Team D senators abused the process relative to circuit court picks. Team D brought that on themselves with their behavior.

                I’d give it a year for District Court judges. You get a year from nomination to return the blue slip, or a written explanation why. If the explanation is just bullshit in the estimation of the Majority Leader, the hearing occurs and on to a vote. A year of screwing around with a judicial pick is enough time, IMO.

                Personally, I would trade winning the House for keeping the Senate for POTUS Trump. The Article III project needs four more years to really take hold. Give POTUS Trump a Team R Senate, then some real judiciary change can happen.

                1. I didn’t know that, thanks for the update.

                  1. Yup. No prob. To me, the judiciary is the big thing. If anything will turn the ship of state, the judiciary will. That is why to me, the article iii project is the real outcome we are looking for – a remaking of the judiciary that cannot be undone.

          2. The Republicans keep the filibuster around for two other reasons beside sham votes: 1) long memories of being in the minority where it mattered, and 2) tradition

            Either one of those is a valid reason.

            Please, also be aware that in a 2 party system, that regularly has wild swings between control of the various branches of government based upon winner take all elections because there no viable option for punishing the party in power other than voting for the other guy (or abstaining, which is half a vote for them) you will get schizophrenic policy implementation.

            1. And right now it doesn’t really matter, there is nothing that they could get thru the Senate with a bare majority that they could also get thru the House, unless it was something most Republicans opposed and a few moderates jumped to the Democratic side.

          3. The filibuster for lower court appointments only started in 2001 thanks to Senator Schumer. Before that, other delaying and deferring procedures were used. Schumer pushed for the idea that judges could be opposed entirely because of their political affiliation. And now, the Dems want to prevent judges from being members of the Federalist Society (but let them stay on more partisan organizations as long as those organizations are leftist).

        2. (the economy crashes because of Dem policies but when there is a GOP president).

          Hilarious.

          1. Yes, it is pretty funny. The root of the housing crisis, for a recent example, was the Community Reinvestment Act, a Democrat wonderlaw of suck if ever there was one. Not that both parties don’t bear some burden for that fiasco.

            More along the lines of something you may actually think through: I assume you can make the connection that Carter wasn’t to blame for stagnation as much as Nixon and LBJ were? With nowhere else to go, the people assign blame and go to the other guy; in 1980 it was Reagan and in 2008 it was Obama.

            An animal spirits moment may happen to either party, and the GOP was the ones chairless when the music stopped due to a bad Democrat law, the Community Reinvestment Act.

            1. The Community Reinvestment act contributed to the meltdown, no doubt. But it was just an exacerbating factor, it just wasn’t a large enough part of the mortgage market to take the housing market down by itself. People being able to buy houses with no money down and take out money at closing was irrational exuberance at its worse.

              Most of it was just poor decision making by both consumers and financial institutions a like.

              1. Not just the CRA, but also outright threats of regulatory retaliation if mortgagers engaged in proper diligence. Because due diligence would inevitably result in disparate impact.

                To prevent that the entire system was forced to run on the honor system.

        3. The lower courts are already being packed by virtue of the Dem’s silly use of the nuclear option and McConnell’s hard work.

          Because it wouldn’t have occurred to McConnell to get rid of the filibuster if it proved inconvenient. Uh-huh.

          1. Well, history is not on your side on this one, because McConnell didn’t get rid of the filibuster for judicial nominees. It was Harry Reed, a Democrat. Moreover, McConnell warned that it will come back to haunt them, which of course it did. Which is why I disagree with Brett about getting rid of the filibuster in general.

            1. Yes. I know it was Reid.

              So it’s not a question of history, but of my judgment as to what McConnell would have done or, maybe, what Trump would have pressured him to do whether he thought it was a good idea or not.

              Basically, I think that McConnell possibly would have done it regardless – he’s not exactly respectful of norms – and I’m confident Trump would have put the heat on. Senate Republicans have not demonstrated much willingness to defy Trump’s demands.

              1. It is a question of what somebody did actually do (reid), versus what you think someone might do. Don’t be pissed, but I am going with what someone actually did.

              2. I’m confident Trump would have put the heat on

                What heat ? Trump has no heat to put on McConnell. McConnell has given Trump exactly what McConnell wants to give Trump – judicial confirmations and a tax cut. Because those are McConnell and establishment Republican policies.

                On Trump’s executive branch appointments, McConnell has happily winked at Schumer’s slow walk tactics. And as for Walls, fuhgeddaboudit. The legislative filibuster was been extremely convenient for McConnell from 2017-19. Now, he can relax with D control of the House.

                The only weapon Trump has against McConnell is going nuclear and campaigning against establishment Republicans in the Senate. But obviously that is against Trump’s own interests. McConnells and Lindsay Grahams are bad. But not as bad as Blumenthals and Wydens.

                Though if he gets re-elected, the longer he gets into his second term, the less damaging trying to take out establshment Republicans and RINOs will be to Trump’s presidency. So it might get entertaining then.

                Appointing conservative judges is a Trumpian campaign promise to get votes he might otherwise have got. It’s n

    2. It should be clear that Bernie doesn’t actually object to manipulating the makeup of the Supreme court to guarantee particular outcomes.

      Not many people do.

      1. LOL. you are correct if the people you associate with are the same as yourself.

    3. This. As usual people dance around cornball ways to carve up the crypto-legislature of the Supreme Court instead of lowering its ridiculous power.

      Same thing with Congress and the Presidency. People don’t like it when the too much power is held by the other, but are so greedy they won’t do anything about it because next time…next time.

  8. Of the three branches, the last one I want to think about screwing with is the judiciary.

  9. For 51 years, only Republican appointees have been Chief Justices. For 26 years (1967 – 1993), only Republican Presidents got to nominate Justices. Partly this is due to happenstance: Carter was the only President to serve a full term without getting a chance to fill a spot, and he was preceded by 8 years, and succeeded by 12 years, of Republican Presidents. But partly it is due to the system breaking down, through Republicans’ newfound intransigence when a Democrat is in the White House; the imbalance between Republican and Democratic Presidents in their appointees (Republicans nominate hardliners, Democrats nominate moderates); and the widening political gulf separating smaller states from bigger states. It was pretty bad during the segregation era, and we are returning to that situation, where Senators representing only 20% of the general population (and that, a segment which is virtually all white) are able to put in place a Supreme Court whose decisions are in accord with only a similarly small slice of the population.

    1. Perhaps you see yourself as a moderate and those who do not agree with you as hardliners; OK because they probably see you the same way.
      The major problem for the Court is the ‘Living Constitution’ group who see anything written down as malleable to whatever means they have at the moment. If what was ‘up’ in the 18th and 19th centuries now means ‘down’ to progressive interpreters, then why have laws written down at all?

    2. “It was pretty bad during the segregation era, and we are returning to that situation, where Senators representing only 20% of the general population (and that, a segment which is virtually all white) are able to put in place a Supreme Court whose decisions are in accord with only a similarly small slice of the population.”

      You are talking hypotheticals. You can’t get anywhere near your 20% as long as Texas and Florida still send Republicans to the Senate.

    3. “(Republicans nominate hardliners,”

      Warren, Brennan, Blackmun, Souter, O’Connor, Kennedty say hi.

      1. That was a long time ago.

        1. So, just graduated from high school, then?

        2. Roberts is no “hardliner”. Recent enough?

    4. You made this claim a couple days ago and it was soundly debunked. I’m surprised you’re still using it.

      Yes, it is true that the smallest 25 states collectively make up only 20% of the population (16.3% actually based on the 2010 census). However, the political makeup of those smallest 25 states are about as divided as the rest of the country. The breakdown of Senators from those 25 smallest states are 19 D, 29 R, 2 I. (The tally for all Senators is 45 D, 53 R, 2 I.)

      The census shows the racial mix across those 25 smallest states to be pretty close to the rest of the country, too. Non-whites in the population as a whole are about 26%. Non-whites in the smallest 25 states make up about 20%. A difference of six percentage points hardly counts as “virtually all white”.

      1. My hard-red state is 5% Native America, 5% Black, 15% Hispanic, only 60% non-Hispanic White.

        1. Forgot one; Hispanic Whites – 15%.

    5. You’ve got your numbers wrong: a Democrat (LBJ) appointed a Justice (Marshall) in 1967 and a Democrat (Clinton) nominated a Justice (Ginsburg) in 1993. That limits it to 24 years, during which there were only nine appointments anyway. FDR appointed eight Justices in just six years, so it really just comes down to chance. As for Chief Justices there have only been four in those 51 years out of 17 ever in 231 years. Those are pretty similar rates so it also really just comes down to chance.

    6. If you think Souter, O’Conner and Kennedy, all 3 nominated by Republicans are hardliners, what is your definition of a moderate?

      1. Sotomayor, probably.

        1. Such a “wise Latina” that one, eh? In fairness to your comment though, Sotomayor is a moderate compared to Ginsburg.

          1. Fidel Castro is a moderate compared to Ginsburg,

      2. As time goes on, I admire Souter more. More because he voluntarily left as opposed to judicial philosophy.

    7. Earl Warren was a Republican appointee, too.

    8. Democrats nominate moderates

      Wat?

      Ginsburg is a moderate? RGB herself?

      Kagan is a moderate?

      Breyer is a moderate?

      But Thomas is a hardliner?

      Gorsuch is a hardliner?

    9. It was pretty bad during the segregation era

      You mean those moderate Democrats that supported slavery, Jim Crow, and segregation? It was pretty bad back then? When the Democrats were appointing ‘moderates’ to the USSC?

    10. are able to put in place a Supreme Court whose decisions are in accord with only a similarly small slice of the population.

      You mean a ‘hardline’ Supreme Court that doesn’t let you run roughshod over us little people out here in the sticks?

    11. And let’s not forget that a REPUBLICAN APPOINTED ‘HARDLINER’ twisted himself into painful contortions to keep the Obama administrations signature legislation alive despite widespread antipathy towards it.

    12. Republican intransigence? O’Connor, Souter, please. These were backroom deals.

  10. I have no liking for mean old communists but Sanders is right to suggest the federal judiciary needs some reforms. How about making them “ride the circuit” or look into reforming their discretionary appellate jurisdiction (although this won’t fix the damage they’ve already done)?

    1. Some reforms, yes. “Reforms” designed to turn them into a rubber stamp, no.

    2. Reform is only desirable if you can identify the aspect of the current arrangements which you find undesirable.

      So far as I can see, the aspect of the current arrangements which liberals find undesirable is simply that SCOTUS does not have a reliable liberal majority. And they are particularly upset about that because for few glorious hours in February 2016 it seemed like that dream might be within reach.

      But it’s not easy to see why folk who do not dream of a reliable liberal majority on SCOTUS should share the desire for the sort of reform that liberals propose.

      The current situation is hardly ideal from a conservative point of view – a very shaky and unreliable majority for reducing the flow of new law plucked directly from judicial rear ends for policy preference reasons. But it is tolerable.

      The conservative ideal – a reliable majority for reading what it says, ruling accordingly whether you like the answer or not, eschewing the fun of electing yourself Congress-for-the -day, and then going home – is far more remote from actualisation than the liberal dream.

      1. I wouldn’t mind reforming it to give them 18 year terms starting with then most senior justice in 2022. If someone resigns or dies in office then their term becomes the next one to be replaced and the other slots slide back 2 years.

        Thomas would go in 2022 but if Ginsburg dies or retires first then that term would expire 2040, and Thomas’ term would expire 2024.

        It would take a constitutional amendment but it wouldn’t pack the court on either side, and then it wouldn’t be the norm to have justices in their 70’s 80’s and 90’s. So I think it would be relatively non-controversial especially because Thomas is the first one up.

        1. I agree that you have identified an aspect of the current arrangements which is unsatisfactory – that of having Justices hang on and on and on. And the related pressure to pick younger Justices simply because they’ll last longer. So getting rid of life tenure seems like a good idea. I’d be inclined to go for a slightly different scheme, which would allow for reappointment.

          1. the term is 9 years
          2. but the Justice can be reappointed to another 9 year term by the then President without another Senate confirmation
          3. but the President can nominate someone else to the vacancy subject to Senate confirmation in the usual way

          Perceived advantages :

          (a) no need to hang on till you’re 240
          (b) no pressure to appoint a spotty 26 year old
          (c) if a Justice turns out to be good, in the eyes of the beholding President, (s)he can keep going for another 9 years, even if the other side controls the Senate
          (d) and even if the President is not that keen on the current Justice, it may be a better option for the President than either leaving the slot vacant, or compromising with the Senate including…

          ….marginally increasing the chances of cross party reappointments, which would help depoliticise the perception of the court at least – eg a reasonably moderate D Justice (OK work with me here) hits her term limit when there’s an R President who faces a D Senate and likely defeat in November, the reasonably moderate D Justice may be a better idea than a high risk of a D President appointing Chairman Mao next February.

          1. Pretty well thought out.

            Too bad that any reform that looks workable would need a constitutional amendment.

  11. I hope the Supreme Court is enlarged by two seats when Democrats have the ability to arrange that.

    I hope the House of Representatives is enlarged by 100 or so seats (thereby reducing the amplification of backwater voices in the Electoral College).

    I hope the electorate continues to improve — less rural, less bigoted, less religious, less backward, less white — which will solve most of the relevant disputes over time.

    1. Wait, you want the House enlarged by 100 or so seats? Depending on how that’s done, you’re going to get MORE representation of us deplorable white clingers.

      1. Unless accompanied by extensive gerrymandering, an increase in the size of the House probably would result in a larger increase in Republicans. Democrats have a problem with being inefficiently distributed, and the current coarse district maps actually reduce that by causing city edge districts to include votes from Republican areas.

        Increase the number of districts without gerrymandering, and the cutoff in Democratic support at the edge of the city would be more accurately represented.

        1. I presume that if the idea came from our local racist the fair-minded and always just Rev, than it will be some sort of population based plan that will minimize rural areas.

          1. I sense you guys are missing the consequence of enlargement of the Electoral College.

            1. Actually, you are. Dope.

              1. I think FiveThirtyEight did an analysis of the effect of the underrepresentation of large States in the Electoral College relative to population. I forget the details but the effect of 2 EVs per State for the Senate representation was very small, and the effect of small States with 1 or 2 Reps getting more Reps per capita than big States was tiny. Like 2 or 3 EVs out of 538.

                1. Yup, this is one of those things Democrats blame their losses on, but if you run the numbers, it’s actually insignificant. You could have had a House with a thousand members, and Trump would have won in 2016.

            2. I sense that you are missing the basic math. The corollary of the debunking above of captcrisis’ claim that ‘Senators representing only 20% of the population can control politics’ is that large states are, in aggregate, as mixed as small states.

    2. For someone who claims to be one of our “betters,” your understanding of the Electoral College and basic math is abominable.

      Under the current arrangement, 435 out of the 538 electors are based on proportional representation in the House of Representatives. (100 are Senators, 3 from D.C.) That means that 80% of the Electoral College distribution is already based on proportional representation.

      Add 100 Congresspersons, the proportion is 535 out 638, or 83%. A very minor difference, that would only matter in a very close election.

      And the scheme would affect both red and blue states. California and New York would get a bit more power in the Electoral College, but so would Texas and Florida. So it is not clear that it would make even a marginal difference.

      The real problem with the Electoral College, in my opinion, is that each state is winner-take-all. That immediately takes about 40 states out of real contention, leaving about ten swing states. It would improve things if we amended the Constitution to require proportional distribution of electoral votes. That would mean each state is now in contention — Republicans would have a chance at getting (some) electoral votes in blue states, and Democrats the same in red states.

      I assume you will do your usual, which is to give no substantive response and simply give your usual cant about backwards, deplorables and the arc of history. For others here, they can see who has substance and who doesn’t.

      1. Maybe = That would mean each state is now in contention — Republicans would have a chance at getting (some) electoral votes in blue states, and Democrats the same in red states.

        Personally, I like the winner take all system. It makes for a more decisive result. I think that is what the Founders were after. They debated proportional electors and rejected that.

        1. I mean, they did no such thing. Nothing at all about the constitution specifies WTA vs. proportional electors.

          1. In fact, two states (Maine and Nebraska) have some kind of proportional division.

          2. Because that wouldn’t have even meant anything. Proportional to what?

            The original idea was to select as electors those you thought best capable of selecting the best President. To use a business analogy, you’d want hiring managers with great track records of hiring superior talent, then send them to DC to help figure out who among all of the People is the best guy for the nations needs at the time. In a war? Pick a general. Everything is peaceful? Pick a businessman. Multiple yearly plagues? Pick a doctor.

            But the point was that you chose electors to go pick the right guy for President, not pick a group of lackeys to refuse all but their patron. The fact that it didn’t work out almost immediately doesn’t change things – that’s how they designed it nonetheless.

          3. David (and others)…The Founders explicitly debated proportional electors at the Convention. They declined to write that into the Constitution, and left the matter to the states (which makes sense to me). The math is pretty clear, to me at least….WTA is far more likely to produce a decisive electoral result, which I think is really what we want in elections.

      2. They should just use the Maine Nebraska model and one electoral vote per congressional district, and 2’bonus votes for the statewide winner.

      3. The proposals I have observed have involved using the smallest state population as the benchmark for district population. That would add more than 100 districts, as I understand it, with several beneficial consequences, including minimization of disparate district populations and a reduction of the structural amplification of backwater votes in the Electoral College that approximates five percent.

        I doubt debates concerning this proposal are hidden. You could probably find some information about this issue with a Google-compatible device.

        1. I generally decline to perform basic research for clingers — how are they to overcome poor education and to learn to function in modern society if they do not learn to conduct basic research? — but here is a head start.

    3. Do you have an inside contract on enlarging the House wing of the Capitol building to accommodate 100 more Representatives?

      The real problem with the House is not that it is small, it is that they abdicated legislating to the Executive and Judicial branches, legislation by executive order and court decisions, while the Legislative engages in partisan bickering. 100 more dolittle poseurs? No thanks.

      1. Truthfully, I would like to expand the House to 1,350 members. The reason is that I believe it would dilute the influence of Team D and Team R by having more ‘third party’ candidates get elected. It would force more coalition building to pass controversial legislation. I also think we would have more more ideological diversity, which I believe would help alleviate the tribalism we see today.

    4. I hope you get what you want, for the popcorn-watching situations of unintended consequences.

  12. I’m not sure the constraints in this area are as tight as people imagine. If Congress choses to, it can create a “SCOTUS II” of nine justices, vest it will appellate jurisdiction of all cases outside of SCOTUS’s original jurisdiction, leave SCOTUS will only its original jurisdiction, and let the President appoint all 9 justices of SCOTUS II. A terrible idea, but perfectly constitutional.

    1. Don’t think that works.

      Article III states:

      The judicial Power of the United States, shall be vested in one supreme Court . . .
      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

      Seems pretty clear that there has to be one Supreme Court, with the jurisdiction stated there, subject to exceptions made by Congress. Don’t see how you can split it up into two Supreme Courts. (It’s not just the use of “one.” The term “supreme” means there has to be one court that has final authority on all issues of law under the laws of the United States.)

      1. The exceptions clause says Congress can make exceptions to the court’s appellate jurisdiction. Make every case an exception.

        1. Court rules it’s ok for states to ban abortions, Congress removes that from the Supreme Court’s review.

          See, these “that’ll get ’em!” plans only work when one lives in the fantasy world of only oneself being in control.

          1. Agreed. I didn’t say it was a good idea, I said it was constitutional.

        2. “The exceptions clause says Congress can make exceptions to the court’s appellate jurisdiction. Make every case an exception.”

          You might be able to do that. But what you cannot do is then create another Supreme Court. There has to be one Supreme Court, not two.

          If you took away SCOTUS jurisdiction, then there would be unresolvable Circuit splits (and splits between state courts of last resort) on the meaning of federal laws and the federal Constitution.

  13. The end result would be the neutering of the courts as a check on the power of any president backed by a congressional majority, which is exactly the risk created by conventional court-packing

    That has already been done, perhaps irreversibly. Thank Mitch McConnell.

    Note also, nothing anyone can say to the contrary can have any meaning. In a dilemma structured the way this one is, the only opinions which count are the opinions of aggrieved parties. Leave the court as it is now, and aggrieved Democrats will do something to undo it when they get the political power to accomplish it. After that, tit for tat, and permanent loss of the judiciary as a legitimate part of American governance.

    There is a solution. Depoliticize the court completely. The predicate for that is that at least one party possessing sufficient command of both political branches must recognize the need to do it. With that in place, the method is fairly simple:

    1. Threaten to use politics to pack the court. It must be plain that the threat is politically unstoppable, except by yielding to compromise.

    2. As a compromise, offer an alternative of permanent de-politicization.

    3. After agreement among the parties, get rid of the court’s too-politicized incumbents, to create a clean slate. Ask for resignations, or use impeachments if necessary.

    4. The parties agree to use an ultra-stringent super-majority requirement for Senate consent to approve a nominee. The standard should be hard enough to pass that any trace of partisan politics in a nominee’s background guarantees failure for the appointment.

    5. At that point, the president’s party affiliation ceases to mean much in the appointment process. If the Senate approval process bars politics in the appointees’ backgrounds, then either party ought to be able to make appointments which completely satisfy the other party, basing them only on judicially-relevant criteria such as legal knowledge, judicial temperament, writing ability, etc. Instead of cultivating politics as means of advancement, candidates ambitious for supreme court appointments would learn instead to shun politics. In that respect, they would adopt a code of honor similar to the one some professional military men have observed, avoiding politics even to the extent of never voting. Eisenhower did that.

    6. Refill the court with new justices, based on the new requirements. As a tender of good faith, the party forcing the compromise could offer the majority of new nominations to its rival. It ought to make no difference.

    1. Missing from your analysis is the difficulty of finding the angel-applicants who have no “trace of partisan politics” in their backgrounds. The very act of seeking a judgeship is a political decision. Virtually every decision a judge makes has at least some political impact.

      Since that’s an undefined standard and since shills in both parties have been more than willing to make up claims in order to allege partisanship, I see no hope that your proposed process would do anything except maybe depopulate the judiciary.

      1. Rossami, I agree that non-partisan judges may presently be less common than the others. I doubt that needs to be permanent. The present system is designed to reward partisanship, and produces what it rewards. A system working in the other direction might be equally productive, and yield a more useful result.

        Anyway, even if genuinely non-partisan judges are but a tiny fraction, enough will be found to fill at least a better Supreme Court than the one which is now actively squandering its own legitimacy by writing utterly predictable outcomes into pretty much all the cases which feature notable political valence.

    2. “That has already been done, perhaps irreversibly. Thank Mitch McConnell.”

      It didn’t start with Mitch McConnell, so you aren’t doing very well right off the bat. If you don’t understand the problem, you are going to have a hard time coming up with a solution. And your solution is laughable.

      “1. Threaten to use politics to pack the court. It must be plain that the threat is politically unstoppable, except by yielding to compromise.”

      I’m going to kick you in the balls, unless you agree to a compromise and let me hit you in the face. Do you really think that works? This is simply power politics at play, exactly like what McConnell did. Leaving aside the stupidity of the proposal, why would the minority party view it any more legitimately?

      That great start continues.

      “2. As a compromise, offer an alternative of permanent de-politicization.”

      You can’t permanently depoliticize a political process. And your pie in the sky proposal does nothing to actually depoliticize the process.

      “3. After agreement among the parties, get rid of the court’s too-politicized incumbents, to create a clean slate. Ask for resignations, or use impeachments if necessary.”

      I love how your hypothetical senators are so pure that they won’t consider politics in confirming supreme court justices, yet so corrupt that they will abuse the impeachment process to get there. And who exactly is deciding which incumbents are “too political”? Do you really believe that the party with the power to kick the other party in the balls would be willing to apply the same standards to its own justices as it does to the other party’s? I don’t. Do you really believe that either party is honestly capable of applying the same standards to the other side’s justices as it does to its own? I don’t.

      “4. The parties agree to use an ultra-stringent super-majority requirement for Senate consent to approve a nominee. The standard should be hard enough to pass that any trace of partisan politics in a nominee’s background guarantees failure for the appointment.”

      In the real world, this just makes it easier for members of the minority party to block nominations of legitimate candidates for partisan political purposes. Reducing the size of the faction needed for the faction to advance its partisan goals is an odd way to take politics out of things.

      “5. . . . In that respect, they would adopt a code of honor similar to the one some professional military men have observed, avoiding politics even to the extent of never voting. Eisenhower did that.”

      Leaving the rest of the silliness aside, can anyone think of any relevant differences between career military men and justices? I can.

      “6. Refill the court with new justices, based on the new requirements. As a tender of good faith, the party forcing the compromise could offer the majority of new nominations to its rival. It ought to make no difference.”

      The majority? Why not all of them? According to you it doesn’t matter which side is making the nomination.

      1. lathrop’s thinking is, well, not very good.

      2. Three replies so far, from folks who apparently think they have won an advantage, and aim to enjoy it.

        1. No, three replies from people who understand the obvious flaws in your proposal (which I notice you’ve made no attempt to defend).

      3. jph12, perhaps I could have been clearer. The proposed compromise is premised on removing all the current justices, not on distinguishing them and keeping the ones you like. That is what I meant when I said, “clean slate.”

        The rest of your comment strikes me as mostly blather. But you do say, “Reducing the size of the faction needed for the faction to advance its partisan goals is an odd way to take politics out of things.”

        Maybe that deserves response. Unless you suppose there will never be any appointments, and that some minority faction likes that and wants it to continue, it is mysterious how obstruction will achieve any goal to advance a minority political agenda. Of course, under the proposed system, neither will consented appointments advance partisan goals. Which is the point—to create a system where both parties are sufficiently armed to defeat partisan appointments altogether, and wait until non-partisan appointments are forthcoming. In principle, that would leave voters free to remove senators or presidents who tried continuously to obstruct such a system. I doubt it would turn out to be a practical problem. The advantages of a stable system for managing a depoliticized court would be manifest, and I think highly persuasive.

        The practical problem, of course, is that presently one side supposes it is positioned to reap a long-term political advantage from the judiciary, and is loathe to give that up. Perhaps that includes you. I am merely suggesting a tactic which might have power to defeat that kind of thinking, but without creating an unending cycle of tit for tat retaliation. Sorry you don’t like it.

        1. “The proposed compromise is premised on removing all the current justices, not on distinguishing them and keeping the ones you like. That is what I meant when I said, “clean slate.””

          So we just shut down the Supreme Court for a couple of years until we get nine new justices confirmed? Great plan. Pretty tough on those poor suckers on death row, though.

          And what about the lower courts? Don’t we have to clean house there as well? After all, all of the justices that you find so objectionable were lower court judges first (except Kagan, of course). If they are too partisan to be Supreme Court justices, surely they were too partisan to be circuit court judges.

          “The rest of your comment strikes me as mostly blather.”

          That’s because you aren’t very smart.

          “Unless you suppose there will never be any appointments, and that some minority faction likes that and wants it to continue, it is mysterious how obstruction will achieve any goal to advance a minority political agenda.”

          We saw it happen under the super majority system, so it shouldn’t be that mysterious. It’s that compromise you keep talking about. Give us something we want, or we won’t let you have what you want.

          “In principle, that would leave voters free to remove senators or presidents who tried continuously to obstruct such a system.”

          Now you are adding voters to your pie in the sky proposal? It just keeps getting more laughable. McConnell’s power play certainly didn’t seem to hurt the Republicans in the last cycle, and I bet it doesn’t hurt him this year either. If you want to make the case that Harry Reid nuking the filibuster cost the Democrats the Senate in 2014, be my guest, but I’m skeptical.

          “The practical problem, of course, is that presently one side supposes it is positioned to reap a long-term political advantage from the judiciary, and is loathe to give that up.”

          No, the practical problem is that nominating and appointing judges is an inherently political process under our system of government, and both sides have been taking ever further advantage of that for 20 to 30 years. Pretending that you can somehow wish away the politics is just silly.

        2. lathrop, your proposal will go nowhere. And that is a good thing for the Republic. You advocate majoritarian tyranny.

          1. Commenter_XY, at least you are sharper than jph12, and maybe more honest too. Yes, my thought is to take political structural advantage out of Supreme Court appointments. I think that not because I favor tyranny, but because I favor democracy.

            With the court issue structured as it is now, the alternative to majoritarian tyranny is minoritarian tyranny. As I have said, minoritarian tyranny has its fans, and it looks like you and jph12 may be among them, at least for now, while you think your side gets the advantage.

            My thought is that the nation needs a judiciary that people of all political stripes concede is legitimate, and that neither kind of tyranny can deliver that. So the court dilemma must be adjusted, to structure it differently. Which is why I am trying to propose a method to take the tyranny out of the system altogether.

            1. Your plan basically amounts to kicking the board over and starting a new game, because you’re losing the current one.

              That’s why it starts with getting rid of the current Justices.

              1. Brett, you might as well just admit it. You want a rigged court to deliver political victories for your side. That’s how you win the game, for a while, until you kill the court as a viable institution.

                I don’t want to lose the game. I don’t even want to play the game. I want a useful court, playing the non-partisan role in national governance it was intended to play.

            2. lathrop, the Founders explicitly rejected democracy. They knew it was nothing more than mob rule. You’re trying to stack the deck. Nice try.

              No, we have the rules for Courts and how we put judges on them. They served us well (I think) for a couple of centuries now. And hell, I say that as someone who doesn’t agree with a lot of the decisions coming from SCOTUS. Nobody said running a Republic with three co-equal branches of government would be easy. 🙂

              1. Commenter_XY, the founders did what they did. I am not aware of any instance during the doing of it when they summarized what they did as a rejection of democracy used within a republican framework—which was the only framework under serious discussion.

                I am keenly aware that some of the features now so often touted as deliberately anti-democratic were not selected to impede democracy per se, but instead to thwart it, in service of just two particular political objectives, both now irrelevant. One, so that democracy would not be used to dis-empower small-state politicians, who had become accustomed to outsized deference under the articles of confederation. Their assent was sought to broaden the base for ratification. Two, so that majoritarianism would not support politics hostile to southern slavery.

                That is the historical basis for what you suppose to have been a principled rejection of democracy—once again, meaning democracy constrained by republican principles. Philosophical critics of pure democracy though some of them were, the founders were by no means acting as supporters of run-wild anti-majoritarianism when they structured America’s government. More the contrary. They were trying to shore up a system too vitiated by the lack of any principle for action, which they had concluded only majoritarianism could provide.

                Madison, for instance, was keenly opposed to minority power, and for almost every government purpose preferred majoritarianism over alternatives. He was not always able to make it happen, for the reasons I mentioned.

                As for the specifics of the compromise proposal I mentioned, there is nothing in it which any supporter of present practice on court vacancies should view as outlandish or too-novel. If you back McConnell’s actions, you can hardly recoil from my suggestions. The advantage on my side is that compared to McConnell, I am trying to restore balance, and take political opportunism out of the proceedings—something McConnell never dreams of doing.

    3. Stephen, I think I know what your proposal reminds me of. Robert Heinlein’s short stories where he proposed handing all nukes to the UN in order to prevent a nuclear war between the USA and the Soviets. It sounds great on paper. Remove the ultimate weapons from the countries and give it to someone neutral. However, looking back on 70 years, and the UN is anything but neutral. It’s partisan and bickering. That would have been a phenomenally stupid idea. Oddly, this was shown by his prior 1941 work “Solution Unsatisfactory”, where the head of the very task force Heinlein advocated made himself de facto king of the world

      To compare, your idea sounds great, but it relies on people being angels and not going for political advantage. Furthermore, it demands political neutrality when the majority of people define that as “agreeing with me”. Sorry, but it will not work, in short, medium, or long term. The closest thing possible is the current system, where at least the Supremes are exempt from any political pressure or reprisal.

      1. Ben, keep in mind. At the earliest moment my proposal could seem feasible, the Democrats would be on the verge of lunging for an unstoppable and overwhelming court pack. Followed by a subsequent attempt to quickly solidify that advantage with pro-majoritarian constitutional rulings—with a particular focus on armor-plating the political processes against minority influence.

        So I think the most cogent argument against my proposal would be that given such power, the Democrats would never consent to any compromise. But that, of course, is not an argument against trying to talk them into it, for the good of the nation. I don’t see anything in what you say to suggest that once implemented a compromise of that sort would not work. I am not proposing to trying to talk anyone into becoming an angel, I am trying to build machinery with the power to constrain devils. In that I am following right in the footsteps of the founders, trying to set force against force. I think if the opportunity ever comes up, then it’s worth a try.

        Also, I’m still skeptical that objectors are mostly upset that I have proposed something they think could rob them of a long-term political edge courtesy of the Supreme Court. Hope you are not one of those.

        1. No. I’m just annoyed because you think that it might work. You are saying “non-partisan” and “political neutrality” like such things actually exist when they are objectively impossible standards. Listen to any moderate, and you will find them complaining that they are accused of being far left and far right on the same talking points. Everyone thinks of themselves as a moderate, and many people declare differences to be partisan extremism.

          1. I disagree that my compromise proposal demands either political neutrality, or non-partisanship. I expect those worthy values to continue to be honored in the breach. I am just trying to suggest a method to force political actors to set partisanship aside during one activity—picking justices. I do not believe I have seen anything save arguments from incredulity to suggest why—given the premises necessary to enable it—the proposal could not succeed.

            Let’s make it slightly more concrete. Say that hypothetically the compromise proposal will require 90% of Senators voting to agree to confirm a justice—an extremely stringent standard it would seem. But in the history of the court since the Civil War, there have been at least 10 such confirmations where votes were counted—plus 37 voice vote confirmations—and probably all or nearly all of those voice votes would also have met the standard, or someone would have called for a recorded vote.

            Why are such nearly unanimous confirmations, once-customary, suddenly impossible now? Please say what you think would actually happen to break the process.

  14. I don’t care if you rotate judges, appoint judges for a limited term, or for a lifetime. Politicians will try to appoint judge that have a judicial philosophy that agrees with their politics. Nothing will change.

    1. Oh, I believe you are wrong about “nothing will change.” Just wait until Democrats reclaim the levers of authority. I hope and expect to see a clingapocalypse. That, with the predictable demographic prospects, makes me content.

      It will give the Conspirators plenty to whine and rant about.

  15. “this panel would be randomly selected from among the nine current justices plus the 179 new justices.”

    One of the factors that makes it much more likely for the Supreme Court to agree to hear a case is when there is a circuit split (and they tend to like well-developed circuit splits, with more than two circuits weighing in). Obviously the judges that were on the panel that issued the decision being argued would be excluded from the lottery, but what about all the rest of the judges who issued decisions on either side of the split?

    I would assume that at least the first panel in each circuit would have to be excluded (and everyone who participated in an en banc decision), but the rest of them could probably get away with saying they were just following circuit precedent. Still, I’m not sure I’d like to be facing a temporary justice who had ruled against my position in a similar case not too long ago.

    Oh, and the lottery’s proposal that it takes a supermajority to overturn a federal law simply enshrines their partisan political preference (which they should recognize by their unwillingness to state whether the same requirement should extend to state laws).

  16. Couple of problems with Sanders’ proposal:

    (1) Federal judges are not appointed and confirmed as “free-floating federal judges,” they are appointed and confirmed to specific courts, including SCOTUS and the lower courts. Lower court judges were never appointed and confirmed as Supreme Court justices, so I do not see how they can possible be empowered to sit on the Supreme Court.

    (2) Who decides which Justice is rotated to a lower court? Does the president do that, no doubt based on partisan principles? I can’t see how that could possibly pass Constitutional muster.

    OTOH, if it is random rotation, then you could well have the more liberal justices rotated. In a big abortion case with the potential to overrule Roe v. Wade, what would happen if, say, Ginsburg and Sotamayor were rotated off, and two conservative Circuit judges rotated on? So this might make the problem worse, from his perspective.

    1. Additionally, a judge is confirmed for a specific position. And it is lifetime. The Bern’s lunatic proposal will go nowhere. But at least it will confirm for everyone that the man is a stark, raving socialist who thinks nothing of subverting our Republic.

  17. Implicit in every left wing power grab is their assumption that only they have the right to govern. If you don’t believe what they want to jam down your throat you are just wrong. Keep that in mind. These people just want to rule you and nothing else.

    1. Jimmy, you’ve hit the nail on the head.
      When has any prominent conservative, even in the face of such unconstitutional decisions as Roe and 0bergefell, advocated “court packing”?
      This is solely a leftist, idea floated when the see their undemocratic efforts to have law made by five, of the nine, glorified lawyers, going away.
      Everyone needs to be reminded that virtually every leftist movement in our society has been through judicial fiat, not the democratic process.

  18. You could achieve a rotation effect by using the exceptions clause to give final appellate jurisdiction to a rotating panel of circuit court judges instead of SCOTUS. Then SCOTUS only has its original jurisdiction.

    1. Hooray for thwarting constitutional design!

      The Supreme Court is a crypto legiature, wrongly, so is fought over for control of it. The solution is to shove its power down to lower courts so now fighting over control of them, and the shovin’ rules, gets added to the fun?

  19. Democrats are always talking about how to accomplish some authoritarian power grab.

    They never seem to consider winning elections and then prudent governance with a public-service focused attitude. It’s always some scheme, some trick, some made up story, some way to manipulate emotion, some constitutional workaround to get power, to then remake the public into the right sort of people.

    1. When your politics are a religion, complete with demons on the other side, it’s ok to lie and trick the demons — they’re just evil demons.

      And btw, listening to talk radio lately, the other side pretty much feels the same way.

  20. Any court packing or restructuring for partisan political advantage would be treated mercilessly by the voters.

    While only 38% of Americans have a great deal/a lot of confidence in the Supreme Court, only 11% have that much confidence in Congress. They certainly aren’t going to sit still for making the Supreme Court more responsive to Congress and the political hurly burly.

    The Presidency is also up to 38%, and the military is at 73% according to Gallup.

    1. Why do you figure that anyone other than Republicans would object to enlargement of the Supreme Court or of the House of Representatives?

      Look at the way Republicans have cheered reflexively for everything from holding a Supreme Court seat open to Roger Stone, from the push to confirm Justice Kavanaugh to the criticism of Gold Star mothers, from the ‘perfect call’ defense to the humiliation of a soldier whose offense was to be the brother of another solider villified for responding to a subpoena.

      Why would Democrats be disinclined to cheer for reducing the structural amplification of yahoo votes in our government?

      Republicans have lived by the harsh partisan sword. Let’s see how that works out over time in a country whose electorate is becoming less hospitable to clingers every day and in several ways.

  21. I suppose Sanders’ bill would be appealed to SCOTUS and deemed unconstitutional, as none of the justices would want to be rotated. I’d bet even Ginsberg would be against this gambit.

  22. Lets be clear, the only way to get to Judges appointed is to win elections. This is what Democrats need to come to understand. When your candidate doesn’t get nominated you can not just sit out elections. The differences between judges that Bernie Sanders or Pete Buttigieg would appoint is smaller than the differences between the judges Donald Trump would appoint and any Democrat.

  23. Long-term, there are two problems with the current system. The first is that judges can stay on for decades, which in practical terms is a substantive change from past practice. This means that one president’s choice can have major influence for way past what ought to be their sell-by date.

    The second is that there is a great deal of chance in which presidents get to select justices, which of course just exacerbates the issue that, more and more, justices only leave voluntarily when their replacement can be made by a president of the same party as appointed them. So it’s possible for one party’s presidents to have far more influence on the composition of the Court than is warranted by the number of presidential elections that party has actually won.

    My suggestion would be two-fold. The first part is that the minimum age for appointment to SCOTUS ought to be, say, 65 or so. This minimizes the chance that a judge of extreme and/or very partisan views would influence the law for several decades. Whether or not that is constitutional, or enforceable as more than a norm, is a question I’m not competent to answer.

    The second part would be that each president, at the beginning of their term (either first or second) get to appoint one justice, with whatever protections are needed that an opposition party couldn’t simply block the appointment and wait out that president until he/she is gone.

    This would lead to a fluctuating number of justices, but what’s the harm in that? It’s certainly not unconstitutional. If there’s an even number of justices, draft a lower court judge in (by some consensus mechanism) either for a case or for a term to break any ties.

    Overall, it is not a good thing that the Supreme Court has become as powerful as it is, and as much of a political prize to be captured.

  24. Overall, it is not a good thing that the Supreme Court has become as powerful as it is, and as much of a political prize to be captured.

    I would argue that the reasons that the court is as “powerful as it is” are mostly:

    • The Congress/Executive branches have way overstepped their Constitutional boundaries (with the Court’s approval) so there are much more weighty issues to resolve.

    • The Court has gotten in the habit of substituting its policy preferences for that of elected officials which, of course, gives the Court much more power.

    • The creeping Incorporation Doctrine gives the Court much more power over issues they should have no say in.

    The only practical way that I can see to fix this is to replace Justices with originalists every time a seat opens – and that’s really not possible to do unless voters agree the court is too powerful and that is an important political issue. Unfortunately, I don’t see that happening in my lifetime.

  25. Reading these comments, it is striking how unabashedly committed the right-trending commenters are to the notion of winning a contest for partisan advantage on the court. Endorsing partisan advantage as a principle is like endorsing blowing up the court. It cannot work that way. The nation’s public life cannot work with an openly rigged referee calling the shots on every controversy. And when I say it cannot work, I do not mean that merely normatively. I mean there will be break-down, failed political systems, rampant injustice, and eventually violence. Who thinks otherwise? Please, if you are excusing a politicized court, which continuously makes decisions which a large fraction of the population regards as illegitimate, explain how the nation avoids a disastrous outcome from that.

    Alas, having posed that challenge, I have to add an anticipatory condition. If you want to complain about the other side, and what it has done that merits revenge, please just use your time for something else. I am really only looking for constructively-motivated replies.

    1. Basically no “reform” plan, (Reminder, shorn of connotations, “reform” just means “change.”) is viable unless its starting date is shoved far enough out that nobody knows who will be in control when it kicks in. Proposed to take effect immediately, it looks to the side that’s currently ahead as just a desire to kick over the board and start a new game because you’re losing the current game.

      Second, about the only “reform” you can do without a constitutional amendment is enlarging the Court. But enlarging the Court doesn’t obviously have any “reform” aspect to it, an enlarged Court operates in the same way, its members are chosen in the same way.

      My own diagnosis is that the Court’s real problem is that, just as no man should BE the judge in his own case, no man should CHOOSE the judge in his own case. And the federal government chooses the federal judges and justices who decide its own cases.

      The result is that the Supreme court subjects state laws and actions to real review, with teeth, and federal laws and actions to largely sham review which almost always finds federal actions constitutional.

      This conflict was not intended; The Senate was originally intended to be a body of people appointed by the states, to represent the states, and presumably defend state interests, not federal. But the practice of electing Senators made them a native part of the federal government, not the states’ representatives in the federal government. And the 17th amendment ended any even theoretical chance the states could reclaim that control, freeing the Senators from concern about acting against the interests of the states. This is why the vast expansion of federal power only occurred after the 17th amendment was ratified.

      My suggested reform is a constitutional amendment which would replace the Senate, for judicial confirmation purposes, with a body composed of the 50 states’ governors. Thus making judicial selection a compromise between federal (The President) and state interests. Using actual state officers, rather than just people selected by the states, should stop the creep towards them becoming just regular federal officers defending the federal government’s interests.

      Obviously not a proposal the Senate would have any interest in advancing, like so many needed reforms, it could only emerge from a constitutional convention.

    2. lathrop, you have got to be kidding me = Reading these comments, it is striking how unabashedly committed the right-trending commenters are to the notion of winning a contest for partisan advantage on the court. Endorsing partisan advantage as a principle is like endorsing blowing up the court. It cannot work that way.

      First, your assertion is just factually wrong. My observation is the rules the Founders set up were more or less followed wrt judicial nominations for two centuries. The politicization of judicial appointments really began in earnest in the late 90’s early 00’s; with a very brief interlude, circa 1850-1875. Just look at the percent cloture votes for judicial nominations. That is ‘the’ story of politicization. Pretty easy to see who did what.

      Second, your proposal does nothing to stop that politicization trend. Or put more precisely, your proposal purports to end it; but only on terms of Team D’s choosing. Nope, not happening.

      To me, the ultimate answer is for the Courts to stay out of social and political questions. That is what makes judges so damned political and controversial. Judges are substituting their judgment for the considered judgment of our elected legislatures and this is wrong. Our elected leaders should be deciding social and political questions. That is what we elected them to do. That is the friggin essence of a republican form of government.

      I think you and I want the same thing, lathrop. We want a depoliticized process where judicial nominations are not contested simply because of what party happens to control the Executive branch, and the Senate. We have very, very different ways to get there. You appear to want to upset the entire constitutional framework to achieve your ends. I maintain we have a good set of rules, and we ought not abuse them (which both sides are doing, it is merely a question of degree).

      1. “The politicization of judicial appointments really began in earnest in the late 90’s early 00’s; ”

        Technically, it became politicized in the 1930’s, when FDR found the Court enforcing the Constitution a limitation to his ambitions, and set out to eliminate limitation by threats, and eventually, replacement with yes men.

        What happened in the 90’s is that the Republican party FINALLY broke what had been Democratic dominance of the Senate, long enough to play the same game.

  26. Brett, thanks for your comment.

    Note that the reform plan I outlined does not work the way you say. Instead, the side that is currently ahead, as defined politically, takes action to force compromise—which will entail giving up part of its own advantage. According to the premise which enables the compromise to work, the other side’s advantage can’t be given up, because it is already gone, lost politically. The proposed compromise is based on an offer by an overwhelming winner to trade some of its advantage for peace and stability going forward. There is nothing in it to suggest taking away power from another party. Just the opposite, it is an offer to a party which is about to lose overwhelmingly to instead lose less, and share mutual benefits besides.

    1. The side that is currently “ahead” can be defined in two ways:

      1) Currently in control of the elected government.
      2) Currently has a majority on the Supreme court.

      If both agree, the side that has both has no motive to pursue your reform plan, and the side that has neither has no power to pursue it.

      So I only see your plan being followed where the two forms of control are conflicting: The party controlling the legislature and White House faces a Supreme court majority of the opposing side, likely to persist for some time. Such as you’d see if RBG retires in the next few months, and then the Democrats take the White House and Senate.

      Step 3 of your proposal is what I would characterize as “kicking the board over”, erasing the current facts on the ground thanks to their not being to your liking. Why should the party out of power cooperate in this? Because of the threat to pack the Court?

      The problem here is that your plan doesn’t end the threat to pack the Court. It just involves a promise to refrain. But the power to pack the Court derives from the Constitution making the size of the Court a legislative matter, and the only way to take packing the Court off the table is a constitutional amendment.

      We need a constitutional amendment as a commitment mechanism, because there is no trust that any bargain would be complied with. Indeed, the expectation is that the side in power would renege on its side of the bargain.

      Let’s see what your proposed constitutional amendment would say. Threatening Court packing to get buy-in on an amendment isn’t unreasonable, but an amendment is unavoidably part of any Court reform, because legislative compromises are inherently transitory.

      1. I’d add that your proposal, even as it stands, involves some degree of bad faith, as you suggest that the “politicized” justices could be removed by impeachment if they failed to resign, and impeachment, explicitly, is reserved for bad behavior on the part of a judge, not mere refusal to resign when it is demanded.

        So you start out your proposal with a suggestion of gaming the existing rules; Hardly inspiring confidence that the new rules would be faithfully followed!

        1. I am by no means suggesting impeachment for refusal to resign. I am suggesting impeachment for politicizing the court, and especially for doing it outside consideration of cases—an activity in which every sitting justice has engaged. They have all lent their names and the court’s prestige to partisan political activities practiced by think tanks and others. The last justice who may not have done that was, I think, Souter. I could be wrong in crediting him.

          Lest you think I take a partisan approach, I think the worst offender still on the court has probably been RGB, now that Scalia is gone. Sotomayor has been called the most frequent public speaker outside the court, always espousing liberal causes. Kavanaugh succeeded in politicizing himself and the court before he was even seated, when he threatened revenge against Democrats during his confirmation hearing. All five of the so-called conservative justices are in lock-step with the conservative Federalist Society, of which they have all been members, and which at least some of them continue to support publicly, including the Chief Justice.

          There is no place for any of that. All of it degrades the public standing of the court as an impartial arbiter of justice. Publicly degrading the institution you lead is certainly grounds for impeachment in my book.

          1. I am suggesting impeachment for politicizing the court..

            Hey, now that’s not a bad idea.

            and especially for doing it outside consideration of cases…

            But i knew it couldn’t last. “Politicising the court” outside consideration of cases is a very small crime, if it’s a crime at all. It’s only a crime to the extent that it might lead people to think that a judge who politicks outside the courtroom will carry his politicking into the courtroom.

            In other words the serious crime is politicising the court inside the courtroom. Politicising the court ouside the courtroom is a pale shadow of that crime, and only to the extent that people come to believe the shadow may turn into the reality. Even then, it’s very doubtful that judges expressing their views outside courts really makes people more worried that the judges are biased. You have to be very young to imagine that judges don’t have their own political opinions.

            Moving on. Politicising the court inside the courtroom is a very serious crime. Deciding cases by reference to the judge’s political preferences is pretty much the textbook example of departing seriously from “good behavior.” And no doubt judges appounted by Republican Presidents and judges appointed by Democratic Presidents commit this crime more often tham we would like to admit.

            But the real problem is not the personal failings of individual judges, but the existence, indeed popuarity, of a judicial philosophy that permits, nay encourages, judges to decide cases according to their political preferences. That’s what living constitutionalism, “purposivism”, rootling in penumbra, divining unstated “intent” – in short liberal judicial philosophy – is all about. Maximising judicial discretion to look past the text of the law to arrive at the preferred result.

            And these worshippers of maximising judicial discretion and minimising obedience to the text of the law, or the Constitution, are all liberals. Liberal judicial philosophy is facially impeachable. Conservative judicial philosophy – reading the text and applying it whether you like the answer or not – is not facially impeachable.

            A conservative judge may sin, from time to time, and be guilty of as applied impeachable cheating – introducing politics into his judgements. But that is an ad hoc crime. Liberal judges, by virtue of their judicial philosophy, have committed themselves to a career of crime – introducing politics into all their judgements as a matter of principle.

            I applaud your commitment to impeaching political judges. i just wonder if you’ve thought through where this leads to.

            The ideal solution of course is to have a judiciary stocked with people of any and all political views, all of whom are deeply committed to a judicial philosophy of ruthless and unfeeling obedience to the text and the minimisation of judicial discretion.

          2. Again, analyzing this:

            The proposal is only going to happen when the majority on the Court is of different politics than the majority in elected positions, there’s no motive to “reform” when Court and politics align.

            At that point, the only apparent purpose of removing existing justices is to change the fact that the majority on the Court have different politics from the current elected majority. Just another approach to Court packing.

            Why would the elected minority vote to assist this, and lend partisan Court packing some appearance of legitimacy?

            If you want real reform, it has to be by amendment, there’s no substitute. At best Court packing can be a threat to secure support for an amendment.

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