The Fifth Rule of Court Packing Depends How Republicans Handle it.

Biden: "It depends on how they handle this."

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The first rule of Court packing is you do not talk about Court packing.

The second rule of Court packing is you do not talk about Court packing.

The third rule of Court packing is you only talk about Court packing after the election.

The fourth rule of Court packing is accuse the Republicans of Court packing.

The fifth rule of Court packing depends how Republicans handle it.

 

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  1. Wrong five times. The first (and only) rule about changing the size of the Court is that the Constitution permits it to be done through legislation passed by the Congress and signed into law by the President.

    It is only a norm that the Court has nine seats. Republicans have broken pretty much every norm around judicial appointments and confirmations – including by making it impossible for a Democratic majority to confirm judges to the DC Circuit without blowing up the filibuster, and then holding a huge number of seats open when Obama was President and Republicans had a Senate majority.

    The only rule now is “you broke it – now you pay for it.” Or maybe “the party that can’t win at the polls doesn’t get to enshrine its policy preferences via the judiciary forever.”

    Personally I would much prefer a fix that would give every President the appointment of one justice per term. There’s a reason that judges and justices are appointed and confirmed by the political branches; it’s because the courts make policy too, and that policy should reflect, over the long term, the views of the majority. Anything else is simply not sustainable.

    As I think Republicans are going to find out.

    1. Republicans have broken pretty much every norm around judicial appointments and confirmations – including by making it impossible for a Democratic majority to confirm judges to the DC Circuit without blowing up the filibuster, and then holding a huge number of seats open when Obama was President and Republicans had a Senate majority.

      Come on, man! The Democrats were the first to dump the filibuster; then the Republicans followed suit. The Democrats started holding up hearings and justices with Bork, during the Reagan era.

      Come on, man!

      1. Democrats did not hold up hearings and justices starting with Bork. Bork got a hearing and vote. He was voted down for ideological reasons, which is legitimate. Simply refusing to hold hearings or take votes is pretty much a Republican thing.

        1. https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies

          “As a result, from June 2001 to January 2003, when the Senate in the 107th Congress was controlled by the Democrats, many conservative appellate nominees were stalled in the Senate Judiciary Committee and never given hearings or committee votes.[9]”

          1. I said “pretty much”. There are exceptions. But if you look at numbers over the last 40 years, you’ll find Republicans have done it far more often than Democrats.

            1. Mmm… Here’s a nice chart.

              https://scholars.org/contribution/tracking-obstruction-and-delay-us-senate-confirmations-judges-federal-courts

              Here’s what it shows.
              1. Before 1986, there was relatively little obstructionism.
              2. For Reagan’s last term (87-88) there was quite a bit of obstructionism by the Democrats.. (Democrat obstruction)
              3. Then it dropped in H.W.’s first 2 years. But by his second 2 years, the obstructionism was heavy again. (Democrat Obstruction)
              4. It then dropped for Clinton’s first 2 years. Went up for the second 2 years. Then stayed up for the last 6 years. (GOP obstruction)
              5. It NEVER dropped for W Bush’s first 2 years. Then Democrats fillibustered judges for the first time. (Democrat obstruction), and it stayed very high. (Democrat obstruction).
              6. And then it stayed high for Obama (until the Fillibuster is nuked).

              It’s hard to say the GOP did it “far more” than the Democrats. If we’re doing it by year…. The Democrats did it for 12 years, starting with the 2 Reagan years. The GOP did it for 11 years (6 Clinton years, 5 Obama years until the Fillibuster was nuked). So….

    2. And you are just as far off the rails with this:

      the courts make policy too, and that policy should reflect, over the long term, the views of the majority.

      The President and Congress express the views of the majority. The courts protect minorities.

      You really need to get some fresh air and read a book or two dozen.

      1. The President and Congress express the views of the majority.

        If only.

        1. The majority, through the representation the states get. Not the majority of people, which gives third worlders in california as much as say as 10th generation Americans in flyover country.

    3. The issue isn’t whether 9 seats is a norm. It’s whether packing the court will harm the legal system.

      And in my experience, people who don’t know very much about the courts and think that SCOTUS is only important because it decides a handful of hot button political issues think it won’t, while people who actually have to work in the federal court system think it might.

      And it’s almost certainly just going to lead to a tit-for-tat where Republicans reverse all the hot button decisions with more packing when they get elected.

      1. In a game where one side plays ‘if we have the power, we do it’ the other side needn’t go full tit-for-tat, but cannot ignore what’s going on.

      2. #13Justices

        #106Senators

        #738ElectoralVotes

        #NoFilibuster

        #ImprovingElectorate

        #BrightFlight

        #TheReckoning

        #AmericanProgress

        #TheAmericanWay

        1. “I won’t say if I will do any of that after the election, before the election.”

          So brave. So intellectually powerful. So honest. So straight forward and non-manipulative.

          1. Clingers whining about lack of disclosure by a presidential candidate?

            #ThreeWeeks

            #ThreeMonths

            #OpenWider

      3. I’m tired of tit for tat talk. There will be no tit for tat, because the very first thing you do with your majority after you pack the Court is pass the sort of entrenchment laws an unpacked Court would have struck down. New states. Campaign laws that mandate gerrymandering in the name of prohibiting it. Campaign censorship laws.

        1. Brett:

          At the risk of sounding like a broken record, Democrats resort to those sorts of tactics because anti-majoritarian institutions keep them from winning at the polls. Give us fair elections (meaning every vote counts just as much as every other vote, no electoral college, senators elected by population), Democrats will win them, and then all your complaining about resort to entrenchment laws will come to naught because it won’t be necessary.

          Your side seriously thinks that the majority of the country that votes Democrat is just going to suck up and take being kept out of governance. Your side wouldn’t if the shoe were on the other foot; why should we?

          1. You are confused that the federal government was intended to be an all-encompassing, all-powerful, one stop shopping level of government for every charismatic demagogue’s seizure.

            Who told you that? Run to your state if you want something implemented.

            1. “Run to your state if you want something implemented.”

              What makes clingers think their betters are still in the market for political pointers from conservatives?

            2. No, I’m not confused. I’m talking about what I believe should be public policy, not what currently is public policy.

              You seem to be confused that what was “intended” over 200 years ago is still workable policy today.

          2. The President should have so little power over domestic policy, that it barely matters who wins.

          3. No deal, because you people have filled America with illiterate third worlders and their descendants. I’ll never consider the Guatemalans and Somalis to be my countrymen. Never.

        2. So now you oppose gerrymandering?

          And why is admitting new states of reasonable size a bad idea, aside from the fact that the ones under discussion are likely to be heavily Democratic?

          Why do fewer than 600,000 residents of Wyoming deserve two Senate seats, while the 685,000 residents of DC, and over 3 million in Puerto Rico don’t? Even the Republican Party platform endorses statehood for PR.

          1. (a) It’s not necessarily a bad idea, but the fact that it’s only democrat-leaning states that are being talked about being added shows you the real motivation. Should we also break Texas up into 7 republican-leaning states? They are the second most populous state, but nobody has worried about their proportional say.

            (b) Funny how people always cite Wyoming (or maybe the Dakotas), but ignore Vermont, Delaware and Rhode Island (five democrats and one socialist senator). Given the geographic size of the states and degree of federal land ownership in places like Wyoming, I can see why they should have greater say than a bunch of small New England states.

            (c) D.C. is the second home to 535 legislators and scores of lobbyists. They have plenty of representation. Not to mention that many federal programs dictate how states behave, which is really none of D.C.’s business.

            Democrats only want this because they find it too difficult to persuade more people to their ideas.

            1. David:

              If you list the states by population, it takes the bottom 18 to add up to California. So even though you are correct that Vermont, Delaware and Rhode Island each cancels out Texas in the Senate, that doesn’t fix the problem. One-third of the Senate is made up of states with combined lower populations than California, which has 2% of the Senate. And Vermont, Delaware and Rhode Island notwithstanding, most of those states are conservative.

              1. Incorrect.

                The bottom 10 states in population are as follows
                “Red” Wy, AL, ND, SD, MT
                “Blue” VT, DE, RI, ME, NH

                10 Red Senators. 10 Blue Senators. (And yes, NH and MT are both 1 and 1).

                1. Edit. NH is 2 blue. ME is 1 and 1

            2. but the fact that it’s only democrat-leaning states that are being talked about being added shows you the real motivation.

              So? That doesn’t invalidate the argument.

              Should we also break Texas up into 7 republican-leaning states? They are the second most populous state, but nobody has worried about their proportional say.

              I’d be delighted to have Senate representation be proportional to population. Go ahead and break up Texas, and CA, and NY. Brooklyn alone has a population of 2.6 million. That makes it bigger than 16 states. Why doesn’t it have any Senators?

              Democrats only want this because they find it too difficult to persuade more people to their ideas.

              Democratic senators represent more constituents than Republicans. The system as it exists is heavily tilted in favor of the GOP.

              Funny how people always cite Wyoming (or maybe the Dakotas), but ignore Vermont, Delaware and Rhode Island (five democrats and one socialist senator). Given the geographic size of the states and degree of federal land ownership in places like Wyoming, I can see why they should have greater say than a bunch of small New England states.

              I can’t. RI has about twice the population of WY. VT is slightly bigger than WY, and DE is about 50% bigger. Yeah. They’re smaller geographically, but that’s not particularly relevant. Legislators represent people, not acres.

              So I see no reason, your statement aside, why WY should be better represented than RI, DE, and VT. I see lots of reasons RI and DE should be better represented than WY.

              D.C. is the second home to 535 legislators and scores of lobbyists. They have plenty of representation. Not to mention that many federal programs dictate how states behave, which is really none of D.C.’s business.

              This makes zero sense.

              1. “Brooklyn alone has a population of 2.6 million. That makes it bigger than 16 states. Why doesn’t it have any Senators?”

                -Because it’s part of New York. If it wanted Senators, it should become its own State. Parts of New York have split off before to become states…

                “Democratic senators represent more constituents than Republicans. The system as it exists is heavily tilted in favor of the GOP.”

                That’s temporary, and dependent on just 1-2 elections, so a lot is finding a popular politician. Flip 1 Senator in Ohio and it’s not really that heavy. Democrats held one of the ND seats as recently as 2019.

                VT is only very slightly larger than WY. Less than 10% difference in their populations. They effectively balance each other out.

                DC’s a federal district. The Federal Government needs a place entirely under its control (and more than just a couple city blocks) in order to ensure its own security and not be subject to a State that disagrees with it. The situation in Portland shows this well.

              2. I’m fine with your plan, as long as those who would never have qualified for immigration to the U.S. between 1924 and 1965 are not allowed to vote.

    4. No. The struggle over the judiciary goes all the way back to Adam’s and Jefferson’s Presidencies in 1800. Marshall himself was basically a lame duck appointment confirmed by a lame duck congress. The Midnight Judges Act was to reorganize the judiciary and add seats was also passed by a lame duck congress and signed by a lame duck President Adams.

      People who say that there are “norms” are ignorant of history, and probably doomed to repeat it. The only “norm” is that the party in full control of the government levers gets to mold the judiciary, even during lame duck session, and the next President and Congress gets to try to undo the changes.

  2. I am wondering if it depends on the ACA case.

    I think Biden may have been signalling that he understands abortion is a perenially devisive issue and it’s perhaps inevitable that over a multi-decade span there will sometimes be conservative majorities, but was worried that the ACA and attempts at federal legislative economic and social programs would be struck down. I think, along with several Conspiracy members, that the current challenge to Obamacare will not persuade the Supreme Court with or without a Justice Barrett. I think Biden may be starting to realize this.

    I also think his views on abortion are not so uniformly liberal. He may actually prefer to say that he would prefer a more liberal approach but the Supreme Court has tied his hands on abortion and he has to live with it, just as he has done in the past when speaking to more conservative audiences (and hinting he might prefer a more conservative approach.)

      1. It was always my assumption that Biden would be infinitely more likely to add Justices to SCOTUS if Barrett were to cripple the ACA right out of the gate. Sadly, no cases in the near future that will lead to overturning Roe (et al) . . . the combo of both would have put irresistible pressure on Biden + Democrat Congress to add those Justices.

        It is amusing how you really never hear many conservative people here whining about conservative activist Justices . . . it seems to be a sin only when there’s liberal activism.

        1. *[“Activist” being defined as: Overturning a law passed by Congress. I figure that a bright-line definition is better than the pointless definition of, “A ruling I personally dislike is activism; a ruling I do like is not.”]

          1. Enshrining your preferred partisan policy as a right looks pretty activist too. Problem is, there can be legitimate debates on some of those. Roe v. Wade is the premier example.

        2. As a recent example, I think a number of conspirators and commenters have criticized the 5th Circuit’s decision in Texas v. United States in rather scathing terms.

    1. It depends on their winning. And very little else.

  3. Seems like Josh Blackman is engaged in blog packing.

  4. Biden is a Rorschach test: He makes a couple of contradictory sentences (check the tape he said variously, I will reveal it before the election, but go vote now, and if you don’t agree with me vote for Trump, but it will depend how they handle it) . He is a 47 year senator whose mastered double and even triple speak. Last night I may have even heard quintuple speak a few times.

    People see what they want when Biden speaks and somehow think it means something. I highly doubt even Biden knows what he will do, until his advisers tell him which way the wind is blowing.

    1. Don’t like Biden?

      Vote for Trump?

      Then open wider.

      1. “if you don’t like me vote for Trump” is truly a very odd argument Biden is putting forth.

    2. What politicians have in common is the ability to lie convincingly. That derives from being psychopaths-lite, where they just don’t actually care what you think about them.

      Hence they are good at letting you project your wishes and desires onto them.

      1. “convincingly”??? I dont know anyone who has ever been “convinced. ”

        Like telling your significant other (s)he looks good in that dress, people know its a lie but it gives them comfort so they repeat it. The truth often has little upside.

  5. “The fifth rule of Court packing depends how Republicans handle it.”

    Is it surprising or inappropriate that one might expect to condition conduct on currently unknown events?

    Are you going to swat a fly tomorrow, or replace a lightbulb?

    Are you going to answer a knock at your door, or hang up on a telemarketer?

    Are you going to stop at the first traffic light you encounter?

    Watching Prof. Blackman develop at this blog reminds me of watching my children, from roughly ages three to fifteen, become familiar with the reality-based world.

  6. I find it interesting that Barrett referred to “the stitch in time”. I wonder if she was signaling?

  7. In the game of chess, you don’t announce your next move when it’s your opponents turn. You wait until they have taken their hand off the piece.

    Right now, it seems the most likely sequence is that Barrett will be confirmed and the conservatives will have a 6-3 majority, followed by a 6-7 minority by next year. But there’s still time for the GOP to come to its senses and take the 5-4 majority instead of playing for the 6-7 minority. Or maybe something else intervenes (unlikely).

    1. In the game of politics, ordinarily you announce your position on issues broadly speaking, as this is the only basis on which voters decide to vote for you or not.

      Court-packing would be among the top most explosive historical events in the history of the US, and even without knowing what immediate consequences would follow, this would take its place among events like the War Between the States (which was not a civil war). Your comment differentiating this from normal political issues only demonstrates that.

      1. That is my fear. I was hoping RBG would last until the likely Biden Admin but confirmation of ACB is much easier to overcome than consequences of packing especially if that is tied to new states. It will be seen by GOP as Dems “cheating” to try to permanently lock GOP out of Senate and invalidate prior elections that gave them the chance for 6-3 Court. With trust in instructions at low level, seeming ever worsening partisan divide, dehumanizing language used for opponents increasing, recent murders over political differences (from each side’s perspective), etc, I worry about rise in political violence in response to packing. I also worry that both sides are downplaying the consequences of their behavior now and in recent past regarding judiciary and underestimating their opponents willingness to escalate. Escalation spirals rarely end well for anybody.

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