Court Packing

The Return of Court-Packing

Some progressive activist groups are trying to resuscitate the idea. Whether they succeed remains to be seen.

|The Volokh Conspiracy |

Cartoon criticizing Franklin D. Roosevelt's 1937 court-packing plan.

 

For much of the period from 2017 to 2019, there was an active public debate over "court packing." The first round of that debate was kicked off by prominent conservative law professor Stephen Calabresi, who (along with Shams Hirji) drafted a plan for Republicans to increase the number of lower-court federal judges, so as to enable Donald Trump to tilt the balance of these courts to the right with new appointments (for the record, I  strongly opposed their idea). With the 2018 nomination of Justice Brett Kavanaugh to the Supreme Court, it was the left's turn to advocate court-packing in order to offset what they viewed as the illegitimate GOP appointments of Kavanaugh and Neil Gorsuch; the latter's seat, they argued, was "stolen" as a result of the GOP-controlled Senate's refusal to hold hearings on Judge Merrick Garland, Barack Obama's nominee to fill the seat vacated by the death of Justice Antonin Scalia in 2016.

The conflict over court-packing seemed to abate after the Democratic Party chose a presidential nominee—Joe Biden—who has said he opposes the idea. In addition, court-packing has been pushed out of the news by the coronavirus pandemic, the death of George Floyd and resulting protests over police brutality, and other events. Now, however, some progressive activist groups are trying to get the idea back on the political agenda:

The movement on the left to pack the Supreme Court is gaining momentum.

A group of progressive organizations is for the first time supporting the proposal to add justices to the court in hopes of weakening the conservative majority, according to a memo provided to POLITICO. The move comes weeks before the Supreme Court is expected to hand down opinions on several hotly contested issues, including President Donald Trump's tax returns, abortion rights and the fate of "Dreamers."

The Progressive Change Institute, Be a Hero, Friends of the Earth, Presente and 350 are among those groups that are newly joining the call, according to organizers. Take Back the Court, Demand Justice and the Sunrise Movement, which previously backed the idea, also signed onto the open letter.

"Trump and the Republicans in Congress have used aggressive tactics, including eliminating the filibuster, to pack the courts with conservative ideologues and prevent the will of the people from being heard," said Erich Pica, president of the environmental group Friends of the Earth. "From the fight for racial justice to efforts to stop climate change and protect our clean air and water, the current configuration of the court has consistently stood in the way of progress. We simply do not have a generation's worth of time to replace judges."

The once-fringe idea of packing the court got a major boost during the Democratic presidential primary, when several candidates said they were open to the plan or supported it. Democrats have argued the hardball tactic is needed after Republicans blocked former President Barack Obama's Supreme Court nominee Merrick Garland and others on the lower courts.

 

Whether these groups can succeed remains to be seen. During the court-packing debate in 2018-19, the idea found a number of influential supporters on the left, but also numerous notable critics, including Harvard law Professor Laurence Tribe, Senator Cory Booker, Obama White House Counsel Bob Bauer, and prominent constitutional law scholars Neil Siegel and Noah Feldman.   For present purposes, the most important liberal critic of court-packing was  Joe Biden.  He e explained its dangers well:

At a debate last year, he said, "I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."

If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance. The predictable result will not only be a loss of "credibility" for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government. If the president can pack the court any time his or her party controla both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact.

This dynamic is a key 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. Comparative research indicates that judicial independence is a crucial safeguard for civil liberties and other individual rights. Court-packing, if it succeeds, is an obvious threat to that independence.

These types of concerns were a key factor in the demise of President Franklin D. Roosevelt's 1937 plan to pack the Court in order to break its resistance to his New Deal policies. As Democratic Senator Burton Wheeler put it in a speech opposing FDR's plan:

Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.

Neutering judicial review may seem like a feature rather than a bug, to those who oppose strong judicial review generally, or at least think that a neutered Court is better than one with a conservative majority. I have criticized such claims elsewhere, including here and here.

Today's liberal court-packing advocates claim their plan won't set a dangerous precedent because it is a response to the special circumstances caused by the bad behavior of the GOP in blocking the Garland nomination and confirming Kavanaugh in the face of a accusations of sexual assault. Liberal legal scholars Noah Feldman (Harvard) and Neil Siegel (Duke) have offered strong rebuttals to such claims, explaining why court-packing would be an escalation of the conflict over judicial nominations, not merely retaliation in kind. I expanded on their arguments here.

From the standpoint of preventing a court-packing spiral, the key factor is not the "objective" merit of the Democrats' critique of GOP behavior, but whether Republicans and conservative independents are likely to accept that critique, and thereby forego retaliation for Democratic court-packing. For reasons I summarize here, I think it's pretty obvious the answer to that question is "no." I have some sympathy for Democrats' complaints about the  way the Kavanaugh nomination was handled—much less so for their critique of the "theft" of the seat that eventually went to Gorsuch. But, for present purposes, it doesn't matter much what I think. What matters is how Republicans are likely to react to a Democratic court-packing initiative. That reaction is unlikely to be a favorable one.

At this point, the odds are still against a successful liberal court-packing plan. In order for it to work, the Democrats would have to win the White House and both houses of Congress—an outcome which is entirely possible, but far from certain. In addition, Biden would likely have to reverse his position on the issue.

A court-packing plan is unlikely to succeed without strong presidential support. For the moment, Biden does not seem to have changed his mind. But, like many politicians, he has a history of shifting positions when doing so seems advantageous to him or his party. It has happened on other issues, and could potentially happen on this one, too. A high-profile confrontation between the Court and the executive branch could potentially persuade Biden (or another Democratic president) to promote court-packing even if that wasn't his initial plan.

Biden could also be tempted to adopt a proposal such as the "rotation" plan endorsed by Bernie Sanders during the Democratic primary, or the "court-balancing" plan proposed by Yale law professors Ian Ayres and John Fabian Witt in 2018. These ideas are slightly different from conventional court-packing, and thus could give Biden an opportunity to create a liberal majority on the Court without technically reversing his previous position. But for reasons I discussed here and here, such plans amount to a slightly different type of court-packing and have most of the same dangers.

If I had to guess, I would say Biden—should he become president—is unlikely to pursue either court-packing or other similar ideas. He would probably prefer to spend his limited political capital elsewhere. But I'm far from a perfect political prognosticator, and I could turn out to be wrong on this point.

Since the defeat of FDR's court-packing plan in 1937, the idea has been marginalized in mainstream political discourse. But the events of the last few years have at least weakened the taboo against it. Both Democrats and Republicans have done much to undermine it. Whether it breaks completely remains to be seen.

The only truly foolproof guarantee against court-packing is a constitutional amendment fixing the size of the Supreme Court at nine (or some other number). Prominent liberal political scientist Larry Diamond recently published a column endorsing such an idea, I too would be happy to see such an amendment enacted, but doubt it could happen without a deal under which Democrats got some sort of reciprocal concession from the GOP. Unless and until that happens, it is important that liberal Democratic opponents of court-packing prevail over the idea's supporters within their party.

NEXT: Prof. Randall Kennedy (Harvard Law) on CNN About Accurately Quoting Racial Epithets

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  1. “the bad behavior of the GOP in … confirming Kavanaugh in the face of accusations of sexual assault.”

    Didn’t they retaliate by choosing their nominee in the face of accusations of sexual assault?

    1. Sadly, your comment applies equally to both the Democrat and Republican presidential nominees this year.

      1. “Sadly, your comment applies equally to both the Democrat and Republican presidential nominees this year.”

        If everyone’s accused of sexual assault…

        1. “I grabbed her by the thing, uh, you know what I mean…yeah?”
          -Joe Biden

    2. As opposed to, well, every Dem since FDR???

      1. Hillary was accused of sexual assault??? (Well, if you’re gonna subscribe to the kiddie sex + pizza joint alternate universe delusion, then you’ll lose the credibility you have gained . . . nah; totally kidding. It’s completely in character for you. Yup. Every Dem candidate since FDR. Especially that total slut Jimmy Carter.

        Please. Start taking your meds again, “Doctor.”

        1. “Especially that total slut Jimmy Carter.”

          You’re not wrong.

          “I’ve looked on a lot of women with lust. I’ve committed adultery in my heart many times.”

          I mean, what a pervert.

          1. To be fair to him; unlike Trump, he’s never fantasized about having sex with his own daughter. Which is an entirely different level of creepy.

            1. Amy Carter was 9 years old when Carter took office.
              Ivanka Trump was 37 years old when Trump took office.

              Big difference.

              1. Dr Ed’s moral philosophy,
                “It is fine that Trump has sexual fantasies about his daughter, because she’s over age 18.”

                Folks, the jokes just write themselves.

              2. The problem with Trump’s comment is not so much that he has creepy fantasies. The problem is that he thinks his creepy fantasies are something to brag about. That takes the creepiness to a whole new level.

                1. It’s not that unusual, I’d assume, for a father to be happy that their grown daughter is hot looking. Saying, OTOH. Trump really could use a filter on his mouth.

                  1. “But the things that come out of a person’s mouth come from the heart, and defile him.” Matthew 15:18.

              3. 37?

                Ivanka was no older than 15 when her father was making creepy comments about her and appearing in a number of creepy photographs with her (on his lap, wearing mini-skirts).

                You’re just flailing these days, Dr. Ed. Getting stomped in the culture war has cost you your grip.

        2. Two words: Vince Foster.

          1. Oh, now you’re not even really trying.
            #sad

    3. The accusation against Biden was obviously fake. Tara Reade will likely stand trail for perjury, not for accusing Biden, but for misrepresenting her credentials under oath in a deposition on a previous occasion.

  2. Using the term “court-packing” is likely a fine way to be excused from consequential debate and practical involvement with respect to this issue.

    The Supreme Court has been enlarged (and reduced in size) several times. It is an established practice. It is entirely lawful. It is easier to arrange than most people would expect.

    It seems no more unusual or severe than several of the other practices that have developed recently with respect to judicial nominations and confirmations.

    Whether to enlarge the Court is an important issue. Those who care about the issue should probably be courteous enough to refrain from use of the term “court-packing” — particularly if they do not wish to provoke others to respond forcefully.

    1. Enlarging and reducing the size of the court for nonideological reasons is fine. But the people who are proposing it now want to do it on ideological grounds, just as FDR proposed to do back in the 30’s. It’s a bad mistake, and I don’t think Biden will fall for it. Like many on the left, I was outraged by McConnell’s failure to act on Merrick Garland’s nomination, but 2 wrongs don’t make a right, and if the Democrats do it now the Republicans will retaliate when they come to power. The solution for the Garland debacle is not court packing, but rather to amend Senate rules to require it to act on Supreme Court nominations within a specified period of time, unless a supermajority votes to do otherwise.

      1. The question isn’t whether he’d fall for it. The question is whether, if a Democratic Congress went ahead and did it on their own, he’d veto it.

        And I really doubt he would.

        1. But the vice-president would drop the 25th amendment documents in a heartbeat, and she would sign it.
          Because for this fantasy to come true, the democrats would have to keep the house and win the senate as well as the white house.
          At which point, it is game over.

          Fun fact: in the ‘win all three’ scenario, it would be legal for the democrats to designate the DNC as the ‘other body’ that decides when the President is incapable of carrying out the duties of his office.
          “Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, . . . “

          1. There’s a ridiculous range of partisan entrenchment legislation that’s possible if you’ve got the White house, a bare majority of both chambers of Congress, and no scruples.

            And the quantity of scruples in Washington is declining fast.

            I expect things to get really ugly, really fast, the next time Democrats have that trifecta. They really thought back in 2016 that the age of permanent Democratic control of the federal government had arrived, and they lost the whole ball of wax.

            I don’t think they’re going to be willing to let that happen again if there’s any way to stop it, fair or foul.

        2. Biden will be eating strained peas from a Barney spoon when the time come to veto this. His VP, soon to be Prez will be making that call.

      2. McConnell used his “power” to circumvent a vote on Garland’s nomination and had no compunction doing it. He could have allowed the review and vote then strong armed his caucus to vote against the nomination first in committee then the whole body, but he didn’t. The application of that “power” would have been to his own caucus with the attendant ramifications. If the Democrats take control of the government they can apply the “power” they have achieved to increase the size of the court. Whether they do that will depend on the perceived consequences with respect to the benefits. It is no more odious because of how the “power” is applied–live by the sword die by the sword.

        1. Yeah, see, it doesn’t matter in the slightest whether or not court-packing is “odious”, because it’s stupid and dangerous, and anyone advocating it obviously disqualified on grounds of mental incapacity to even choose which color of sippy cup they prefer.

    2. “Using the term “court-packing” is likely a fine way to be excused from consequential debate and practical involvement with respect to this issue.”

      It’s also the term everyone uses.

      If you can’t persuade people without changing the term, it almost certainly means you have an indefensible position on the merits.

      1. Neither side likes it when it is applied to THEIR idea to court-pack. Being a negative term, it should only be applied to the other team. “Cuz OUR team is just trying to make it fair… ‘n some other stuff.”

        Dems say that court-packing is fair because Reps were unfair with the last two appointments [the last one making it only because Dems accusatory trollop of choice smelled worse than week old cod] and because Reps eliminated the SCOTUS filibuster. But Dems had eliminated all the rest of court filibusters and would have done so with SCOTUS if it would have benefited them. It’s just a matter of timing as to which team would benefit first.

        Both teams are guilty of gluttony under the excuse that they other guys are pigs. Both are guilty of turning the Constitution from a guiding document into one that is just a challenge to get around and “interpret” as necessary to fit ideological goals.

    3. Let’s put that “established practice” into context.
      SCOTUS size was set in 1789 at 6 and kept there for 18 years.
      It was increased to 7 in 1807 and stayed there for 30 years.
      It was increased to 9 in 1837 and stayed there for 26 years.
      It was increased to 10 in 1863 and stayed there for 3 years.
      It was reduced to 9 in 1866.
      It was reduced to 8 in 1867 and stayed there for 2 years.
      It was increased back to 9 in 1869 and has stayed there for 152 years so far.

      In other words, SCOTUS has been run at 9 for over 75% of the country’s history and all the changes were in the first third of the country’s history.

      1. That’s a half-dozen changes, by your account. Four enlargements have occurred.

        Sounds like an established practice. Entirely lawful. Entirely compliant with the rules as commonly understood.

        1. Hahaha Nobody said it wasn’t lawful, idiot. Just stupid one-upmanship on the order of Hatfield’s vs McCoy’s. Betcha you’d be bitchin about it if Reps make it back 4 years later and doubled down. Under your theory of established practice, we might as well start up with public hangings too. Got about 2600 of them ready to go when you are.

  3. Court packing, if it happens, will not happen in isolation. It would be followed by the sort of partisan entrenchment moves an unpacked Court might have struck down, to make sure the opposition never did get their turn at it.

    It’s been said that democracy is like a train: When you reach your station, you get off. Court packing will be the party in power announcing their departure from the train.

    Back in 2017 I suggested that Republicans propose an amendment to take Court packing off the table by fixing the size of the Court. And threaten Court packing themselves if Democrats would not support it. They’re going to regret passing up that chance the next time Democrats are in power.

    1. My position at the time as well. It could have passed. But Republicans have always been about 10 years behind Democrats, stupidly presuming that “they’d never go that far” or being afraid to look like ‘the evil one and his bag of dirty tricks’. Democrats aren’t hindered by concerns over such things.

  4. If the GOP were going to “retaliate” to an effort by Democrats to pack the courts, exactly what difference in behavior would you see from what they have done since Obama was elected?

    It wasn’t just Garland. They choked off every Obama nomination they absolutely could. Then when Trump is in office they fast track every right wing judge they could, even ramming through those that the ABA decisively declared to be unqualified. Goodwin, Teeter, Kobes, Walker, VanDyke. All considered unqualified, except they were palatable to the right wing. Reportedly 1/4 of federal judges are now Trump appointees.

    Then Trump has the gall to brag about how he got so many more judges confirmed than Obama, because Trump is a hard worker and Obama was not.

    So now please explain is this “retaliation” the Democrats are supposed to fear and what exactly are they supposed to get by tiptoeing to avoid the wrath of the GOP?

    1. “Then Trump has the gall to brag about how he got so many more judges confirmed than Obama, because Trump is a hard worker and Obama was not.”

      Obama actually did get to a really slow start on judicial nomination, it was a topic of discussion at the time.

    2. “If the GOP were going to “retaliate” to an effort by Democrats to pack the courts, exactly what difference in behavior would you see from what they have done since Obama was elected?”

      Well, duh: They would pack the Court themselves when in a position to do it.

    3. If the GOP were going to “retaliate” to an effort by Democrats to pack the courts, exactly what difference in behavior would you see from what they have done since Obama was elected?

      Well, and this is just a guess, they’d retaliate by, say, also increasing the size of the Federal judiciary so that they can actually pack it.

      Do you think there’s no actual difference between a 25% Trump-appointed judiciary, and one where it’s 66% Trump-appointed? That there’s no difference between a nine-member Supreme Court with two Trump appointees, and a Supreme Court that has 27 members, twenty Trump-appointed?

    4. Pushing off a nomination or pushing a nomination through is playing rough but it’s still playing the game. Court packing is overturning the board because you don’t like the other players. And once you do that, no one will ever play with you again.

    5. Let me get this straight: One of the President’s jobs is to nominate judges. Obama did no nominate very many, left a lot of judgeships unfilled. Trump nominated a lot of judges.

      And you are complaining because Trump did something better than Obama? Or that Obama did something worse than Trump?

      Your complaint is confusing. Please clarify. Otherwise it smacks of TDS.

      1. 1. I thought Obama sucked at picking judges. You would think that a CONSTITUTIONAL LAW professor would recognize the critical important of federal judges. Duh. So, if I were elected president, a major task between Nov and inauguration would be to get 25 trusted advisors (or farm it out, as Trump did, to Heritage, Federalist Soc, etc), and say, “You have 2.5 months to give me a preliminary list of 200 judges for circuit courts, 50 for appellate courts, and 5-10 for SCOTUS.” Obama did not nominate all that he could have, esp in those 2 first years.
        2. There was no point in nominating anyone his last year or two, as Whore Mitch McConnell made it clear that they (yes, including lower courts) would not get consideration.
        3. Trump does deserve a lot of credit for doing exactly what he promised in regards to judges. Reliably conservative. Often enough thoroughly unqualified (most of his nominations have been qualified enough, IMO). And Whore McConnell just jams them through, regardless of merit. Unless Democrats are idiots, they will have learned something, although any lesson will be pointless unless they win the presidency and Senate. But one should not understate the importance of Trump fulfilling this campaign promise, as it alone is reason enough for many to support him again. He may have lied about getting Mexico to pay for the wall, etc.. But he 100% did keep his promise about getting a ton of conservative judges onto courts.

        1. If it will ease your mind, Obama was never a “Professor”, he was a part-time TA at U of C. That or his semi-Marxist ideology might explain his crappy choices.

          His full time job was as a “Community Organizer” for the Democrat Party in Cook County. The first step in the Chicago Machine Political ladder. Their income primarily came from Michelle’s “job” at the U of C Hospital as a “PR Consultant”, with no set hours. In other words, a classic Chicago “No Show” job, usually reserved for a “Streets and San” shovel leaner, but her salary started at $200,000+ and every time Obama got elected to a higher office, “coincidentally” it went up another $75,000.

          1. “If it will ease your mind, Obama was never a “Professor”, he was a part-time TA at U of C. That or his semi-Marxist ideology might explain his crappy choices.”

            The school has confirmed that it regarded him as a professor and that he served as a professor.

            Other than that, great comment, you bigoted, half-educated clinger.

            How’s the search for that birth certificate coming along?

            1. “The school has confirmed that it regarded him as a professor and that he served as a professor.”

              The school has confirmed that he’s a Democrat, and was elected President.

        2. Is Whore a legal term for bad lawyers?

          1. No, “whore” in the context is what’s known as a figure of speech. Here, it refers to someone who has sold out his or her principles. See Lindsay Graham for another classic example.

            When in doubt, a trip to your local dictionary will give you the most common meaning(s), also also will give other, lesser-known, meanings to words. By doing this, you will increase your familiarity with the English language, and you will become more able to converse fluently in your native tongue, and more able to understand nuances and meanings that, till now, may be flying over your head.

        3. “He may have lied about getting Mexico to pay for the wall, etc..”

          I don’t count that as a lie; It wasn’t something he could do by himself, and I don’t think he realized just how relentlessly anti-border security so many Republicans in Congress were, given that they’d run on securing it.

          It was clearly possible to do, by levying a tax on remittances, but a President can’t levy a tax without the help of Congress, and that Congress was doing everything in their power to make sure he didn’t get his wall.

          1. More excuses for Trump.

            Did he take any steps toward getting Mexico to pay?

            And think about your idiotic plan. Is it really a good idea to selectively tax remittances to Mexico? Would it even be Constitutional, unless you taxed all foreign remittances?

            And how hard would it be to evade? Just send the money through an agency in Canada, or send cash with a friend visiting Mexico.

            Stop pushing this stupidity.

            1. “Would it even be Constitutional, unless you taxed all foreign remittances?”

              I’m at a total loss for any constitutional basis at all for challenging such a tax, provided it was properly originated in the House and enacted into law.

              Would it be possible to evade to some extent? Sure. Would financial institutions headquartered in the US be helpful in evading it? Probably not. You wouldn’t need it to be 100% effective.

        4. Your problem here is a failure to understand that the filibuster was fully alive and well the first two years of the Obama administration. Democrats had not yet devolved the situation into one where the rules were tossed out the window. Harry Reid finally did so however, and started packing as many as he could, and set it up so that the Republicans were just following after suit by the time Trump came along. Blaming the other guys for playing by the rules you set up just because you’re currently losing, is bad character.

    6. “If the GOP were going to “retaliate” to an effort by Democrats to pack the courts, exactly what difference in behavior would you see from what they have done since Obama was elected?”

      Further court packing. You end up with 35 justices or something and no reliable system of legal precedent.

      1. This is why I do not want to cross this line.

      2. So you have no real objection to court packing as long as you get the last move. As I said above “power” baby is the name of the game. So lets have no more tears about the injustice of it all.

        1. You are projecting. He quite logically and realistically pointed out the folly of it and inferred it was a bad idea. It is you who sees no problem with it so long as you get the last move. Your posts have made your duplicity quite clear.

  5. I too would be happy to see such an amendment enacted, but doubt it could happen without a deal under which Democrats got some sort of reciprocal concession from the GOP.

    The “reciprocal concession” is that Republicans can’t pack the court, either. Anyone who can’t imagine that the Republicans would ever be back in the same position they were in only two years ago is simply an idiot, and should loudly and universally be mocked as one.

  6. “…it was the left’s turn to advocate court-packing in order to offset what they viewed as the illegitimate GOP appointments of Kavanaugh and Neil Gorsuch; the latter’s seat, they argued, was “stolen” as a result of the GOP-controlled Senate’s refusal to hold hearings on Judge Merrick Garland,…”

    I don’t think this is accurate. I know tons of liberals, and not a *single* one thinks Justice Kavanaugh was or is illegitimate. They think his appointment and confirmation were bad ideas. Really really bad ideas. But nothing close to illegitimate. Gorsuch, on the other hand, is seen that way, due to Whore Mitch McConnell single-handedly preventing consideration of Garland . . . thereby “stealing” a seat from liberals, as you noted in your OP.

    1. I know liberals that think Kavanaugh is a rapist and therefore illegitmate. If you know none, you have a pretty select crowd.

      1. Wrong. I know some who believe to this day that he is a rapist. But not an “illegitimate” Justice…merely an inappropriate one.

        The fact that you use “bad dude” and ‘illegitimate’ interchangeably does not mean that liberals do. (Of course, I have doubt that one can find fringe idiots that do this. But on the internet, you can find fringe people who believe ANYTHING, and they’re hardly fair representatives of Dem’s, Rep’s, etc etc. You can still find brain-dead morons who deeply believe that Obama was not born in America. But that fringe does not mean that conservatives writ large are delusional, mentally-retarded (in the clinical sense), idiots.

          1. Well, the process was hardly transparent.

          2. Brett,
            Such rhetoric before the confirmation hearings is hardly representative of (1) How Dems refer to Justice K now, nor of (b) how they view his current status as a Justice.

            If you can point to a SINGLE example of a senator calling him illegitimate within the past 12 months (even in the heat of a partisan election!), I will change my position and apologize here. (I would like to add the same for Dem House reps, except that there are some really fringe-y Ds and Rs in the House. I’ve heard some statements from my fellow R who are in the House that are truly cringeworthy. And the same from the extreme House Ds as well.)

            1. Does the left ever get tired of gaslighting?

              1. I see your confusion. You are mixing up ‘gaslighting’ with “making a cogent and trenchant point.” An easy mistake to make. But, by all mean, go back to Rush and Sean and Tucker for your source of unbiased news. Unless Steve Miller happens to chime in. You can add him to the mix, if that happens.

              2. You’re a sad man.

                1. (Jesse, not sm811)

            2. You’re making this too easy.

              “Harris and Warren both slammed the confirmation process as illegitimate and denied it was an exoneration of Kavanaugh’s conduct.”

              1. It certainly wasn’t an exoneration.

                Grassley saw to that with his “investigation.”

                1. So, you’ve shifted from “No Democratic Senator called him illegitimate after his confirmation” to “They had a good excuse”?

                  1. I can’t speak for bernard, but the process is not the same as the candidate.

                    I’d be fine with revisiting Kavanaugh’s honesty, both at his Supreme Court hearing and his Appeals Court hearing.

                    1. By “the [illegitimate] process”, are you referring to sandbagging attempt of Feinstein and her spy staff in holding onto an allegation till the last second? Or more to the putting forth a trollop whose allegations would have been lol’d by Democrats for their nonsense,
                      vague memories supposedly brought out by hypnosis or something, and not even substantiated by a single fact including the recollection of her best friend?

                      Reminded me of the trollop who came out with similar accusations against Herman Cain [a woman who “just coincidentally” lived in David Axelrod’s building]. And I couldn’t care less about Cain, but sincerely tired of the same tired bullshit being trotted out by Dems, almost on queue. And supposedly all of it considered legitimate unless it happens to be against a Democrat candidate.

        1. “The fact that you use “bad dude” and ‘illegitimate’”

          Who you talking to? Not me, jack.

  7. “Trump and the Republicans in Congress have used aggressive tactics, including eliminating the filibuster, to pack the courts with conservative ideologues and prevent the will of the people from being heard,”

    The Democrats eliminated the filibuster first, the Republicans removed the exception for SCOTUS.

    “On November 21, 2013, Senate Democrats used the so-called “nuclear option,” voting 52–48 — with all Republicans and three Democrats opposed — to eliminate the use of the filibuster on executive branch nominees and judicial nominees, except to the Supreme Court.”

    “In 2015, Republicans took control of the Senate and kept the 2013 rules in place.[54] On April 6, 2017, Senate Republicans eliminated the sole remaining exception to the 2013 change by invoking the “nuclear option” for Supreme Court nominees. This was done in order to allow a simple majority to confirm Neil Gorsuch to the Supreme Court. The vote to change the rules was 52 to 48 along party lines.”

    From wikipedia.

    What goes around comes around, as they say.

    1. A Democratic Senate Might Need to Curtail Filibuster, Harry Reid Says

      Democrats were, right before the election, openly threatening to abolish the filibuster for Supreme Court nominees if Republicans dared to try using it once Clinton was President. There was talk of getting rid of the legislative filibuster, too.

      This, “How dare you do to us what we said we’d do to you!” outrage is hilarious.

  8. The notion that Kavanaugh is illegitimate is nonsense. He was never credibly accused of any wrongdoing. It was a false narrative with lying ‘witnesses’ form the beginning.

    The notion that Gorsuch is illegitimate is nonsense. McConnell played by the rules, and the Democrats lost. Tough.

    1. Well, if Dems win the Senate and the presidency, and stuff 4 extra Justices on the Sup. Ct, I expect that tons of conservatives will find those extra seats to be illegitimate in some sense…despite it being done by the rules. But it is good to know that, under a possible Biden presidency, you will be defending any lawful (but stupid) actions as, “Within the rules, so tough beans for conservatives.”

      1. All the seats are illegitimate in the sense the court is treated as a legislature elected by the president and Congress.

      2. No less illegitimate than the 14 extra justices we then stuff on SCOTUS in retaliation.

      3. Yes, Republican will be outraged BECAUSE the USA isn’t a Socialist Democracy… IT’S a REPUBLIC with a Constitution. And if you don’t think Democratic Justices IGNORE’S that Constitution entirely; you haven’t been paying attention.

        Nazism is but an acronym to National Socialism. Would you elect Nazi’s to the USA supreme court? Because a good 90% of Democratic Justices vote just like the Nazi’s did (No individual rights; just popular entitlement and mob-powered “forceful” slavery)…

        I don’t really understand how registered Democrats can even justify their own thinking; when drilled down into reality of their beliefs its seems their only answer is, “I don’t care”. No wonder 70%+ of the prison population is registered Democrats.

    2. If “playing by the rules”is the only concern, then what’s wrong with court-packing? It too is playing by the rules. Tough.

      Look, McConnell is a dishonest asshole. He has said, unsurprisingly, that if a SCOTUS vacancy comes this year he will have no problem confirming a Trump nominee, despite what he said about the Garland nomination.

      1. McConnell could ride a Confederate cavalry division through the Overton Window of shamelessness Trump has opened for him. Norms are cuck.

      2. It’s fucking hilarious watching leftists go apeshit over having the Biden Rule applied against them.

        1. SJin, get back to watching Fox. They’ve got them some juicy made-up, fabricated, fake images of violence by demonstrators in Seattle. Lap it up.

        2. What Biden ACTUALLY SAID was NOT that the president should leave a SCOTUS seat open for the winner of the election to fill. He made this very clear in his 1992 speech: he said (I’m paraphrasing rather than looking up the exact wording): some listeners will think I’m saying the president should leave the seat open for the winner of the election to fill; well, I’m NOT saying that.

          What he said was that the president should leave the seat open DURING THE CAMPAIGN, and appoint the new justice during the seven weeks AFTER ELECTION DAY (when the campaign ends) and BEFORE THE WINNER TAKES OFFICE on January 20 of the following year. That’s seven weeks, more than enough time to vet, nominate, and confirm a new justice.

          That way, the voters would be able to focus on the presidential election and not be distracted by a confirmation battle.

          This is very very obvious if you actually listen to the speech or read the transcript. Obvious even to Mitch McConnell, who is a lying piece of govno.

          1. Yes, and if you think it was his expectation that the Senate would confirm Bush’s nominee before Clinton took office, you’re a few screws short of a complete assembly.

            1. It’s like you confused the early 1990s with today.

        3. “It’s fucking hilarious watching leftists go apeshit over having the Biden Rule applied against them.”

          The real fun starts in January.

          Open wider, clingers.

  9. So the argument is that the GOP will retaliate?

    So what. Suppose that Biden wins, and gets to tilt an unpacked court to the left. Does anyone believe that the Republicans, if they have the opportunity, won’t pack the court in turn?

    I don’t. They haven’t demonstrated a willingness to stick to norms that disadvantage them. So the threat is meaningless.

    1. The “Biden rule” isn’t that Presidents don’t get Supreme Court nominations in election years. It’s that they don’t get them in election years when the opposing party has a Senate majority.

      1. Oh. The “Biden rule” again.

        Fuck off, Brett. There is no Biden rule and never was. It’s a figment of the fevered right-wing imagination.

        Show some integrity, please.

        1. Resorting to straight up lies are you Bernard? Now that’s funny.

          1. No serious person accuses another of lying without showing at least a bare minimum of their work. To wit:

            1. What did Bernard say that’s false?

            That’s as far you’ll get today because Bernard said nothing false. A politician’s counter-factual hypothetical is by no serious definition a “rule.” But imagining he had said something false, and that you had accurately pointed it out, we’d move on to

            2. What evidence do you have that the falsehood was spoken/written with an intention to deceive?

            Of course, had you gotten that far you’d be in good company to simply ignore #2, given that tribal hacks on the internet generally just take their opponents’ bad faith for granted.

            1. 1. Well, that there is no Biden rule, for one. Sure, Biden wasn’t narcissistic enough to call it that himself, but he did advance it. Not in the exact terms McConnell followed it, but there was a rule, and Biden was the source.

              One of the more annoying habits of modern leftists, (There’s a lot of competition.) is this perpetual demand that we memory-hole every inconvenient thing you’ve said.

              1. A suggestion not adopted, by one Senator with no power to adopt it, is not a “rule,” Brett, no matter how often you say otherwise.

                A concrete action taken by the Majority Leader, in defiance of norms and preventing what would probably have been a vote to to confirm, is an outrageous, illegitimate act, whatever Biden said in a speech 24 years earlier.

                Stop your sophomoric bullshit.

                1. Bernard, I was around in 2008, and no SCOTUS nominee from Bush was getting confirmed. Whether you call it a rule or not, it was a widely held position among relevant Senators, Schumer as well as Biden.

                  1. Like everyone over 12 years old, I was around then too. You’re right that Biden wasn’t alone, but you don’t know that no Bush SCOTUS nominee was getting confirmed. Hypothetical policy pronouncements are easy. The breadth and depth of commitment is pure conjecture until weighed against other commitments, and otherwise tested in the world of actual cost and consequence.

                    Calling it a rule is sophistry at best.

      2. No sir. What Biden said was that the president should not nominate a new justice DURING THE CAMPAIGN, but should wait until after Election Day (Nov. 4) and appoint the new justice during the seven weeks between Election Day and the day the winner takes office (Jan. 20 of the following year).

        This is very obvious if you listen to the speech (1992) or read the transcript. He went out of his way to make it clear.

        1. It’s equally obvious that if the President lost reelection and none the less nominated a Supreme court justice after losing, his nominee would be DOA unless his party controlled the Senate.

          I didn’t approve of what McConnell did, I thought Garland should have been voted down, not ignored, and I’d be in favor of a Constitutional amendment that automatically confirms Presidential nominees if not voted on within some reasonable period. But there’s precedent for ignoring nominees, even Supreme court nominees, rather than going through the process of voting them down. And everybody knows McConnell is a creep, so what’s new about that?

          1. I wonder. In any case, even if you’re right, I’m only talking about what Senator Biden actually said.

    2. “Does anyone believe that the Republicans, if they have the opportunity, won’t pack the court in turn?”

      They will fail, because we still have a norm against packing.

      1. Which is why we want to preserve that norm.

    3. Which norm are you talking about? The one where filibuster of all federal judges was the norm? Because Dems got rid of that one. Try being honest, at least with yourself. Bullshitting or half truths don’t make your point valid, even in your own mind.

  10. To the Left it is all about power. That is it. They want power to push their agenda. The end justify the means. Get power and authority any which way. Push agenda. Worry about anything else later.

    1. Not at all true of the right, Jimmy?

      Are you a moron, or do you just play one on the Internet?

      1. Well if I am so dumb, then what is it really about?

        1. Politics is about power, Jimmy. Both sides have agendas that they want to push.

          Really. Is that so hard to understand? And if you think the right is more respectful of principles and won’t resort to unsavory tactics you’re out of your mind.

          1. Not really. I think the right has traditionally put more into thought about principles (which is why it liked to lose so much until maybe a few years ago), but as the left has pushed the power dynamic hard it has stopped doing this so much.

      2. “Not at all true of the right, Jimmy?”

        If you mean the “right” as in the Republican Platform; I’d say it’s only 10% true. If you mean the “right” as in what many politicians end up doing then I’d say your 75% right.

        The DNC platform (their very stated ideology) is [WE] mobster authoritarian in all things. The entire site only mentions the Constitution in 3-categories and one of those three is to LIE about giving women the vote. Sorry DNC; Its on public record the Democrats resisted giving women the vote and Republican’s over-rode them. Same as your LIE that you ended slavery when in fact you lost a civil war trying to defend it.

        But……. The DNC [WE] foundation will STEAL from and imprison every working, productive, successful Paul that increases quality of life with astonishing progress to pay for druggy cracked out Peter —- Because Peter didn’t make that… [WE] did; and we will take whatever [WE] think we want.. Awe how sweet.. What a saint stealing from Peter to pay useless criminal Paul.. Flowers and Roses…. How dare the ‘right’ think money is *earned* by willfully decided to be useful to others!!!!

        Underlining every DNC platform stance lies the stance, “Sell your individual souls to the [WE] foundation because you don’t own you; [WE] own you and you are a slave of the [WE] foundation.”

  11. You keep saying “Democrats” have been pushing court packing but the only actual Democrats you name are opposed to it.

    1. Yes, he should have named names:

      Support packing or said they are “open” to it: Sitting senators Warren, Harris, Gillibrand, Hirono, and Booker. Also Beto O’Rourke, and Eric Holder.

      Buttigieg said he would pack if elected, but with some mitigating factors in how he’d do it.

      1. RE: “Buttigieg said he would pack if elected, but with some mitigating factors in how he’d do it.”

        You mean he would pack, but wear a condom?

        1. Damn you! You got there first!

  12. The left seems to really want a shooting civil war.
    Why is beyond me…..

    1. I hope you aren’t wasting money on Netflix or Hulu. The “left” that lives in your imagination is more entertaining than what any of the streaming services is currently offering.

        1. Just calling your constant melodrama about political violence what it is.

          1. You call Dr. Ed’s talk of armed resistance to Democrats’ insatiable lust for power “melodrama.” When Democrats ship their opponents off to concentration camps, will you call it “tragedy”? Probably not.

            1. Concentration camps . . . a shooting civil war . . . birthers . . . bigots . . . Second Amendment solutions . . .

              This is the audience that Volokh Conspiracy has cultivated.

              Does anyone still expect strong law schools to take the Conspirators’ advice about hiring more movement conservatives for faculty positions?

              1. You don’t seem to get that Democrats are the conspirators. Conspiring to steal the very foundation of this country. It’s as clear as day to see for anyone who isn’t willfully ignoring it.

                One of these days citizens might just get tired of this liberal coup and be patriotic and take their country back.

        2. Doc, since you’re obviously unclear on the concept:

          Tweeting to one’s 82 million followers that one ran down the last ten feet of a ramp, when there’s video all over the internet showing one (to say the very least and putting it rather kindly) not running) → That’s gaslighting.

          What I did → What Sarcastro said.

          See the difference?

          1. And if the ramp was so slippery, why didn’t the aide walking beside Trump, ready to catch him if he fell or to steady him if he staggered, not have the same difficulty walking which Trump had???

            Both the problem he had raising the cup to his mouth to sip water, and the gait he showed walking down the ramp, are very common symptoms of Parkinson’s disease. I know; I have it.

    2. It’s not leftists who show up at demonstrations carrying AR-15’s, Ed.

      1. … or fantasize openly in these threads about killing their political opponents.

      2. That’s because they probably know deep down inside; their piddly communist agenda isn’t worth really fighting for – its just that toy they want someone-else to pay for and are throwing a temper tantrum to get it.

        1. I should slap some reality in that.. Their “slavery” agenda. Because there isn’t a single freak-en law that forbids them from starting a voluntary commune they keep flapping their yaps about.

          Why don’t Democrats organize their own voluntary commune???????? Because they want SLAVES not volunteers!!!

  13. Maybe what Republicans should do is think up their ideal, dream constitutional amendments, including no court-packing, and then just amend the Constitution.

    Do the same thing they did to pass the 14th amendment: Don’t even bother with Article V and doing it constitutionally. Just abolish Democrat state governments and deny them representation in Congress and force through whatever you want.

    1. And how did the 13th Amendment get passed?
      Or was that somehow “different”?

      1. Yes, it was completely different. The 13th was “properly” ratified in accordance w/ the Constitution.

        1. Wow! Actually not. Southern states were not “readmitted” to the union till after the 13th was passed, and it is well-documented historically that Lincoln told several “mistruths” to make that happen. Southern states never did vote on the 13th.

          It’s a curious thing though…. the act of readmittance to the union would presume that they had successfully left the union and could form their own federation. Lincoln and the union however, were adamant that NO state could leave the union and that they had given up that right when they joined.

          1. That’s why I get rather irate about people who want to say the reconstruction amendments were good precedent for how the Constitution can be changed.

            The amendments themselves were good amendments, but the way they were accomplished was atrocious. The US basically spent several years there as a dictatorship with the Constitution a dead letter, and it never did come back fully.

    2. Watching ML self-radicalize until he idolizes the government of *1859* has been a helluva ride.

      1. You have really bad comprehension skills.

        1. You’ve even said it before, ML.
          Specifically mentioning 1859.

  14. The only truly foolproof guarantee against court-packing is a constitutional amendment fixing the size of the Supreme Court at nine (or some other number).

    Wrong. The only foolproof guarantee is making sure that SCOTUS is not viewed as a fortress against the other side enacting its policy preferences that can somehow be won by gaming the system.

    The only real authority the Supreme Court has is moral. And, for it to continue to have the moral authority to be recognized as the final arbiter of law, it needs to stay within hailing distance of public opinion when what it does impacts policy.

    To give an extreme example: what would happen to the Court’s authority if it ruled that Social Security was unconstitutional? Would any President simply stop sending out checks to old people? Or would whoever was president keep sending checks (and thus preventing geriatric riots) with the blessing – tacit or otherwise – of Congress?

    A less extreme example is Roe v Wade. I don’t think there’s much question that, with Roe, the Court got ahead of public opinion, and that the decision – right or wrong – has widely been viewed as illegitimate ever since. As a consequence, many states have done whatever they can to eviscerate, in practical terms, its holding.

    And a similar thing would happen if, say, President Cotton issued an executive order banning abortion and the Court upheld it. In states where abortions were not made hard to get by state governments, abortions would continue, and there would be very little the Court or President Cotton could do about it.

    Republicans have been working so hard to appoint so many hard-right judges because they hope that those judges will rule against major initiatives that a Democratic Congress might enact and get signed into law by a Democratic president. That is a very bad way to win political arguments, and is unsustainable in the long term.

    The solution is to make the system un-gameable. And I think there are constitutional ways of doing that. Say, for example, that every president got one appointment to the Court every term, and only a super-majority of the Senate could veto an appointment. If that led to a Court of more than nine justices, so be it – even numbers could be solved by bringing in a judge from a lower court on a temporary basis, and there’s no constitutional requirement for a fixed number of Justices. If there were retirements or deaths of more than one Justice per presidential term, then the numbers could be brought up to nine in the same way.

    The only way either party could “game” that system is to win presidential elections – which, of course, is the system, or ought to be. And the Court would be far less likely to go out on a limb in terms of the policy implications of what it did if the policy preferences of the Justices were more closely aligned with that of the voters at any given time.

    1. “And a similar thing would happen if, say, President Cotton issued an executive order banning abortion and the Court upheld it. In states where abortions were not made hard to get by state governments, abortions would continue, and there would be very little the Court or President Cotton could do about it.”

      Merely withholding Medicare/Medicaid funding would put every hospital in those states out of business.

    2. Nice comment. At least bratschewurst is trying to take partisanship seriously as a problem, instead of trying to figure out how to make the problem worse.

      1. It’s probably impossible to de-partisan the Court, because interest groups care so much about it.

        1. The only reason they care about it so much is because it basically has the power of an oligarchy, able to overrule both other branches of government. This was never a power that was invested in the court by the Constitution.

    3. The Supreme Court is there to uphold the Supreme Law (period). No matter what democracy (popularity contest) has to say about it. The Constitution is what made this country. People who vote to elect justices that ignore the Constitution (for popularity contests) are the same people who would make ALL your assets a lottery ticket of popularity.

      If one wants to supporting the destruction of this country for democratic socialism they should just save themselves a lot of grief and MOVE to cuba.

  15. 1. Court packing is unacceptable.

    2. The Court is already packed, in the sense that Republicans have fiddled the system, and abandoned any pretense of demanding qualifications for justices except partisan loyalty. Republicans make no secret of it—they intend to keep doing that, as long as political power permits.

    What to do? I suggest Court unpacking. Keep 9 justices as the norm, but re-assert another norm, of prioritizing non-partisanship in appointments. Extend that norm, to cover also continued tenure on the Court.

    Do a searching investigation to turn up evidence of partisan political behavior among sitting justices—not by looking at their decisions, but by checking out activities and associations of themselves, and of immediate family members. Does the Justice meet, consult, and lend his/her name and prestige to partisan organizations and causes? Does a spouse earn money by advancing partisan political agendas? Those are partisan activities which undermine judicial legitimacy.

    Find how many justices have avoided partisan entanglements. Keep them. Impeach and remove the ones who have not.

    You might have to remove the entire Court. That would be fine with me. At least it would be bi-partisan, and less susceptible to tit-for-tat than court packing.

    Then, time to start over, and relearn how to do it right. Establish a 80% rule for Senate consent to an appointment. The Supreme Court is too important to the nation to continue as a political football.

    An amendment to require super-majorities large enough to make partisan appointments impossible would be useful. Absent the amendment, do it with Senate rules. Once in place, those rules would probably stand up, because voters might punish whichever party tried to go back to doing what created this mess in the first place.

    Political power sufficient to enable Court packing would also be sufficient to impose Court reform—to get rid of partisan justices and start over. If an election permits either party to assemble sufficient political power to do either, the reform is the way to go.

    1. Court packing means something, and the something it means is “increasing the size of the Court so that you can immediately appoint a majority of the Justices”. Not, “Get a majority by nominating and confirming Justices as openings appear”.

      All the political power it takes to pack the Court is a bare (But cohesive!) majority in both chambers of Congress, and a President who won’t veto the bill. Your proposal to create openings by impeachment requires a supermajority in the Senate, and besides is just a more extreme form of Court packing, that overturns the life tenure of Justices by pretextual impeachment.

      Look, the Supreme court has been a political football for generations. Democrats figured out you could defeat the Constitution if you suborned the Court back during the FDR administration, and have been doing it ever since, with some level of cooperation from the Republicans. (Seems many Republicans privately don’t like having to obey it, either.)

      That’s history, it’s not going away, Democrats don’t abandon tactics that work. By “partisan” judges, you just mean judges who don’t share YOUR partisanship. You wouldn’t create an apolitical bench, you’d create a monopolitical bench.

      1. PREDICTION: half a century from now, the Supreme Court will have more members than the Senate.

      2. Court packing means something, and the something it means is “increasing the size of the Court so that you can immediately appoint a majority of the Justices”. Not, “Get a majority by nominating and confirming Justices as openings appear”.

        The practical result of the latter is, however, that judges try to retire in such a way as to maintain the current ideological balance on the Court; ie, delay their retirement until a President of the party that appointed them is elected. And then, when a Justice does die unexpectedly, the party in power in the Senate will do everything in its power to make sure that a Justice of a different ideology is not appointed, and that a Justice of the majority’s preferred ideology is appointed instead.

        For example, does anything really believe that, if one of the D-appointed Justices died two days before the inauguration of President Biden in 2021, McConnell and Trump wouldn’t bend heaven and earth to fill the vacancy with another conservative Justice within those two days?

        Either we take partisan ideology out of the judicial system – which is impossible – or we make it impossible to game the system by such tactics.

        1. Your TDS is showing. No, actually they wouldn’t try to do it in two days, two weeks, and probably not even two months. There are obviously practical aspects and considerations that you are evidently unaware of that make such a thing impossible.

          Even if all else were made possible, it’s not conceivable that a majority of the Senate, including hard line Republicans would attempt to justify eliminating ALL rules just to sit one Justice. It would be political suicide should anything in his background be in question and someone voted for the appointee without due process.

          1. Not to mention that, in such an event, the Democrats would refuse to concede that the position had actually been filled, and we’d end up with a constitutional crisis.

            Anyway, there just aren’t enough hard line Republicans to pull that off, or the last 4 years would have gone down VERY differently.

  16. I can see the arguments on both sides and haven’t really decided which is best.

    The questions I have are why is there a the magic number and what should the number be?

    Why is nine better than five, seven, 15, or 25?

    1. Aside from the usual principle that bodies that vote should have odd numbers of members, there’s no magic number. The problem with Court packing isn’t that 9 is a perfect number, it’s that it enables the party in power to immediately turn the Court into a rubber stamp, without having to hold power through multiple election cycles. It allows a momentary majority to breach constitutional limits.

      If somebody proposed to increase the size of the Court to 15, but with the added Justices being chosen over several election cycles starting far enough in the future nobody could be confident who’d gain the advantage from it, that wouldn’t be Court packing.

      But it would be largely pointless, because 15 isn’t any more of a magic number than 9.

  17. I don’t think Court packing is a very good idea.

    Given our current political divisions, were one party to start that packing ‘daisy chain’, just how much more divided do you think this country would get? The system we have, imperfect as it is, beats any alternative I have read.

    The fact that we ‘can’ do something does not always mean that we ‘should’ do something.

    1. Like I said up above, nobody is going to just pack the Court, that would be stupid.

      You pack the Court, and then proceed to do all sorts of things to entrench your party, so that the opposing party never gets its turn in the game of tit for tat. Having converted the Supreme court into a rubber stamp just makes this easier.

      1. What sort of things would entrench the party?

        1. 1) Admit multiple territories to be states, it’s generally understood that virtually all their Senators and Representatives would be Democrats.
          2) Split up a few states in gerrymandered fashion to assure more Democratic Senators.
          3) Use “time, place, and manner” powers to mandate state level gerrymandering in favor of Democrats.
          4) Overturn Citizens United, and institute a system of political censorship.
          5) Refuse to seat duly elected Republican members.
          6) Naturalize all illegal aliens.

  18. In the minds of an awful lot of people, the Supreme Court is not there to interpret the law consistently — it’s there to make sure the right policies get adopted.

    As long as that’s the case, regardless of what scheme is used (court packing or whatever), there will be a steady movement away from the constitution, toward judicial tyranny.

    1. As long as that’s the case, regardless of what scheme is used (court packing or whatever), there will be a steady movement away from the constitution, toward judicial tyranny.

      I would argue that the Court has been enacting policy preferences for almost as long as there’s been a Court, although that’s not all it does. The real problem arises when those policy preferences are markedly and consistently out of step with what a majority of the country wants.

      1. Especially when Democratic justices have seats. Do some research on Scalia – that’ll restore some faith in the system.

      2. Except that what you’ve stated is a foolish assertion and isn’t what the Constitution requires. It is not the job of SCOTUS to stick the proverbial finger in the air to determine which way the wind blows. Congress is there to enact public policy, not the court. Conversely, it is the job of the court to apply the Constitution and determine if the the other two branches or portions of government have exceeded its constitutional powers, and that is its only true authority.

        “What a majority of the country wants” is a whim and can change even within days, and the purpose of the Constitution isn’t to yield to it, but to protect the public from those whims and the politicians that inspire them if they are indeed unconstitutional. Even when unconstitutional, if those whims are large enough and sustainable, the Constitution allows for a path to change in the form of an Amendment. THAT and that alone are your path to getting “what the majority of the country wants”.

        1. Well said!!! Excellent comment +10000

  19. This article goes back historically only to examine the reputed bad behavior of Republicans that immediately preceded where we are. However, this cycle has been going on for some time and so if go by history, will continue. Before the past cycle mentioned above, we had the Dems and Harry Reid nuclear detonation, Repubs slowing down Obama appointments, and Dems slowing down Bush appointments – especially their treatment of Estrada. I don’t recall any drama during the Clinton years, but before that we had the way Dems treated Thomas and Bork. Naturally partisans of one tribe or the other will point out how their sides actions were fully justified. Spare me.

    1. Yes, I noticed that; Talk of Court packing hardly started with the Republicans in 2017, and the idea wasn’t nearly as popular in Republican circles as it currently is in Democratic circles.

  20. >The predictable result will not only be a loss of “credibility” for the Supreme Court,

    This just shows that we live in different worlds as I think that ship has long since sailed.

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  22. Right-wing court-packing is the real coup happening folks.

    1. As it should be; The right’s platform want’s to preserve the US Constitution. The left wants to abolish it for [WE] dictatorship and name it “Social Democracy”. Goodbye individual freedom; hello [WE] popularity dictation.

    2. Of course this had to be the last comment at the time of my reading. It always has to end with the one guy [even among his ideological pals] who doesn’t even understand what the term means. So… thanks for stopping by and telling us what is really going on. Now, back to YouTube with you. I hear Bushman and Angry Snowman have some new vids for you.

  23. Progressives, liberals, Democrats need to understand that if you want to appoint judges/justices you have to win elections. Much of the talk of court packing is a response to the Ps, Ls, & Ds failure to win the election in 2016 and you cannot undo history. This idea that you are not enthusiastic about Hillary then or Joe now is self pity. Because if you had gotten out for Hillary, the SCOTUS would look different today and do you really want President Trump appointing judges for another 4 years. So if you really cannot bring yourself to vote in 2020, don’t come to me with some scheme to change the courts.

    1. “do you really want President Trump appointing judges for another 4 years.”

      Depends; Those who want to turn the USA into Venezuala don’t. Those who like their individual freedoms do.

      You SLAVERS and your pathetic idea’s for this nation. Don’t seem to realize legislative hand-outs are granted by individual SLAVERY; think goods just fall out of the air?? And yet the whole time while pushing for slavery in the name of, “helping” no one but yourself to others peoples stuff/labor your astonishingly undeserved pride tries to justify it as the work of an angel.

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