I Want You For Court Packing!

A future message from the Biden-Harris Transition Team.

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From: The Biden-Harris Transition Team

To: Bipartisan Constitutional Scholars

Date: November 4, 2020

Re: The Garland Commission

 

President-Elect Biden is honored to invite you to join the Biden-Harris Transition Team. Within moments of President Trump's concession-by-tweet, President-Elect Biden announced the formation of the Garland Commission. Named after Judge Merrick Garland, this Commission will research how to reform the Supreme Court. Don't worry–Garland is not on the short list! There are enough white men on the Court. But Garland is a useful martyr to rally support for Court Reform. Oh, and that's the phrase we are going with: Court Reform. The phrase Court Packing just does not poll well.

We invite you to join a group of other bipartisan likeminded scholars who agree that the Court needs to be "reformed." We look forward to your recommendations of how President Biden can make two additional nominations to the Supreme Court within the next two years. The specifics really are not important. Panels? Senior Status? Rotations? Whatever. And don't worry if you plagiarize from your prior writings. Really, the President-Elect is cool with that. What matters is that Justices Brown Jackson and Kruger will be on the bench to uphold the constitutionality Green New Deal in June 2022.

Will you heed the call to serve your country? We want you for Court packing.

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  1. I remember learning about the Sermon on the Mount in Sunday school and how Jesus spoke of the necessity of the Electoral College so people in California and New York don’t get to decide presidential elections by every Americans’ vote counting the same in presidential elections and how the Supreme Court must always have 9 justices…except for almost a year if McConnell only wants 8. 😉

    1. God is fine with every manner of dictator since he allows those above you into power. You are just to submit to tjem for that reason. He’d have a problem with any democracy at all.

      For that matter, Jesus said to help your neighbor, not to force your neighbor to help your other neighbor. Lots are going to Hell, but it has little to do with voting systems, or the vote at all.

      1. It is funny when a bigot tries to be funny by showing their sheer ignorance of religion. But, yeah, keep it up…

        1. Islam is the one true religion…correct?? Remember, if you disagree with me you are a “bigot”. 😉

          1. You don’t really know what a bigot is…

            1. You believe Muslims are going to hell…you are a bigot.

              1. Nope, not actually what a bigot is.

                1. I can’t think of anything more intolerant than not allowing a group of people into heaven for having different religious beliefs than you!?!

                  1. You think I decide who gets into Heaven? Wow…

                  2. But, if you need some edu-macation here,

                    “Who is a bigoted person?
                    : a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices especially : one who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance.” – Merriam-Webster.

                    In regards to your questions regarding Muslims.
                    1. If I disagree with you about Islam, that doesn’t make me a bigot. Different people can have different opinions.
                    2. If believe Muslims are going to hell (I don’t necessarily, but that’s not relevant), that doesn’t make me a bigot. I have a view on my faith, and where supporters of my faith go in the afterlife. Other people have a view on where supporters of their faith go in the afterlife. Different people can have different views on the afterlife.

                    3. What makes someone a “Bigot” is an obstinent and intolerant view that goes over and beyond just the opinion, into views, attitudes, and disrepectful treatment of the group who they disagree with.

                    Let’s put this in more generic terms. I like sports team A. You like sports team B. We have different opinions. And that’s OK.

                    A bigot by contrast likes sports team A. You like sports team B. Bigot decides to call you a stupid piece of garbage because you don’t agree with him, and that liking sports team A is the only right choice, and anyone that doesn’t like sports team A is garbage who deserves to die and suffer in poverty and is a lesser person.

                    1. Just so you know I think liberals are anti-Muslim bigots for not converting to Islam.

    2. Yes, 9 justices is clearly exactly how it has always been, and always should be, and this has always been the view of every principled conservative. They’ve always been consistent in asserting this, and you can trust them to always be consistent on it.

      1. The issue really isn’t is 9 justices the correct number. It is if adding justices to achieve a partisan political end is a legitimate power move in a nation of laws? Most people would say “no” and did up until the OrangeManBad era. But if you want to perform power actions like a banana republic then this ought to be your goal.

      2. Another person who can’t differentiate between “fill vacancy” and “create vacancy”. I wonder if you trust your dentist to know the difference when it comes to cavities.

    3. But you know, every other party that has lost an election has managed to deal with the trauma of the loss without engaging in a naked power grab the next time they won.

      It’s also apparently unpopular with the general public by like 2:1, if that actually matters any more to a one man one vote type such as yourself.

      1. I actually think when this Supreme Court overturns Roe that Democrats will benefit, and even though I support Democrats I tend to agree more with conservative justices.

        1. Honestly Sebastian I’ve been growing more and more tired of the degree to which the extremes are increasing their control of the parties and I think I’m reaching my limit.

          The Dems had better not do this if they want me to ever consider voting for another Democrat. It’s too far.

          1. The only way we could increase the size of the Supreme Court is why truly bipartisanship legislation…otherwise it would get out of hand. And keep in mind Stevens and Souter were nominated by Republicans so Democrats have been the beneficiaries of justices moving very far to the left and then Kennedy and O’Connor were Republican picks and they were swing votes. The last 4 Democrat appointments have been very reliable liberals.

      2. … are you claiming that McConnell’s tactics in 2016 weren’t a “naked power grab”?

        1. EE – No, I’m not claiming that at all. I am certain, though, that had everything been reversed as to party between 2016 and now that the same thing would have happened just with the Dems showing hypocrisy and the Reps complaining.

          Ultimately it comes down to this – if Congress can punish the judicial branch by completely changing it in a fit of pique over rulings that it believes MIGHT come – not to mention rulings that have already occurred – then we no longer have three branches of government.

          Hell, Congress has ceded a ton of its power to the president over the last decade. Maybe they should try doing their own job again before they go fucking up the other branches.

          1. btl,

            The problem is that some of us think the court system is already fucked up. The court has become a highly partisan institution, and is likely to stay that way for a long time.

            We are looking at a decade more, probably, of Alito and Thomas, and two or three of Roberts, Gorsuch, Kavanaugh, and Barrett.

            We are looking at lower courts full of ideologues.

            So what, from a Democratic POV, is the sensible thing to do?

    4. Personally, I remember learning in Civics class in high school, the critical checks and balances in the US government, and the role they play in preventing the abuse of power and the rights of the people. And how the SCOTUS is critical there as an independent third branch….

      Do you remember that?

      1. Either your instructors omitted the part about how Congress and the President could adjust and have adjusted the size of the courts; you didn’t learn the lesson; or you are just flailing for desperate partisan purpose.

        If you have a persuasive argument Democrats should hear about their use of power in the event the voters provide it, let’s hear it. Otherwise, your preferences are due no respect from America’s liberal-libertarian mainstream majority.

      2. So what. An enlarged court is still “an independent third branch.”

        The trouble is, the court is now a highly partisan – Republican – institution. Except for the occasional case that embarrasses Roberts they have consistently taken the GOP side on cases involving political power, and even Roberts’ limited sense of shame will be useless once Barrett gets railroaded on.

      3. Armchair Lawyer : Personally, I remember learning in Civics class in high school….(etc)

        If that fond memory is endangered, then address the threat : Call every Republican Senator you can and demand the postpone any vote until after the election. But please don’t gloat over your raw political power hypocrisy then switch to pieties on the common good. McConnell knows the consequences of Barrett after Garland. You know the consequences as well. This is the GOP’s choice. They’re the ones who decide this, one way or another.

  2. Maybe you could call it a “Judicial Procedures Reform Bill.” That looks nice. I bet no one has ever proposed a simple “Judicial Procedures Reform Bill” before. Maybe call it the “Judicial Procedures Reform Bill of 2021”. To differentiate it from the completely innocuous “Judicial Procedures Reform Bill of 1937”.

  3. “If the Supreme Court’s membership could be increased to twelve, without too much trouble, perhaps the Constitution would be found to be quite elastic.”

    Nothing better than an “elastic” Constitution when trying to defend people’s rights….

  4. Pack it and pack it well.

  5. Mitch McConnell led the Republicans in a game of Calvinball with regard to the Scalia and Ginsburg vacancies. Increasing the number of justices is an appropriate response,

    1. Because who cares about things like protecting fundamental civil liberties? Why bother with a SCOTUS that will protect reporters from being thrown in jail if they investigate the government?

      What’s really important is one-upping the GOP.

      1. Fundamental civil liberties? Like seeing Ginsburg, Roe and its progeny, Lawrence and Obergefell being overruled?

        1. Griswold, not Ginsburg. I wish we had an edit function.

          1. Damned auto-correct…

        2. Only Roe will be overturned…and the impact will be inconsequential in light of TRAP laws effectively outlawing abortion over large swaths of America.

        3. Freudian slip much? But yep, all those. Court packing enables it.

          Let’s face it. The current court wouldn’t overturn any of those. But enable court packing, and it’s much easier.

          Here’s a hypothetical situation for you. In 2022, President Harris signs the “Truth in the Media” bill into law. This law, passed by the Democratic Senate and Congress, was designed to stop “fake news” by designating certain organizations and people “Official Press”. Only “Official Press” were given the Freedom of the Press protections inherent in the Constitution. Others were denied these protections.

          In 2024, President Harris strips “Official Press” status from the NY Post and Fox News. Lawsuits ensued. But the new 15-member SCOTUS upheld the law and bill. Several NY Post reporters and editors are sent to jail for publishing “fake news”…

          1. Your hypothetical is absurd. The overruling of Griswold,/i> etc. is a real danger.

            1. No one is overruling Griswald. The concept is insane. The GOP was promoting making birth control available OTC without a prescription (and was blocked by the Democrats)

              Meanwhile Kamala Harris has a history of prosecuting investigative reporters in court…. She is not a friend to the press. My hypothetical is backed by historical examples on her part.

              1. No one is overruling Griswold? Is that why Judge Barrett declined to rule out the prospect thereof?

                If Roe falls, it is easy to envision a state legislature outlawing Plan B type contraception, a district court enjoining based on Griswold, a Court of Appeals affirming, and five members of SCOTUS revisiting Griswold.

                  1. Why did Judge Barrett decline to address whether Griswold is correctly decided?

                    A significant fraction of the anti-abortion movement also opposes contraception. Don´t gainsay their prospect of persuading some backwater state legislature.

                    1. Most would prefer to avoid Conception altogether, rather than killing the unborn months later heart beating brain functioning and feeling pain while being dismembered.

                    2. Because, that’s what they do, on both sides, during these hearings.
                      Refuse to discuss specifics about cases and hypothetical cases.

                      But here’s the deal. If you really want to overturn Griswald…go and pass a court packing bill. That will make any overturning far more likely.

                  2. That article is crazy misleading. It asserts that Democrats are opposed to OTC birth control, and links to a story from The Hill. That story in turn, shows what the “opposition” is:

                    “Sen. Patty Murray (D-Wash.) on Tuesday unveiled a bill to keep in place the rule that insurance companies must cover contraception, even if certain methods, like birth control pills, become available without a prescription.”

                    That’s not being opposed to OTC birth control; that’s just wanting women to still be able to afford it.

                    (Having said that, I agree that Griswold is in no danger because no one is going to try to ban birth control.)

                    1. Democrats are, sadly opposed to OTC birth control, because it’s easier for them to play political games with it. Reason covers it well. That is the truth.

                      https://reason.com/2019/01/16/deregulate-the-pill/

                    2. Is your vehicle also a dodge, Armchair Lawyer?

                    3. jb, what about that portion of the anti-abortion movement that considers some forms of birth control to be abortifacients? If Roe is overruled, Plan B and the like are at risk, and a legislative ban could easily reach SCOTUS.

                  3. AL, there’s a reason why ‘I’m a conservative and I don’t want to end contraception’ is a headline, and not a snooze.

                1. Sotomayor refused to directly answer questions about Roe v. Wade in her confirmation hearings. Am I also supposed to assume that she would strike down Roe?

                  1. Then-Judge Sotomayor was not on record as opposing Roe, and her history belies your assumption.

          2. WTF are you talking about?

            While you make up stories, Trump has actually taken WH press privileges away from reporters he doesn’t like, called the press “the enemy of the people,” tried to restrain publication of books critical of him, punished people who testified at his impeachment hearing, praised a Congressional candidate who body-slammed a reporter for asking a question, etc.

            So forget it.

        4. Ginsburg? I think she left the Court in a Box.

      2. Because who cares about things like protecting fundamental civil liberties?

        Well, not McConnell for one. Unless you really think that the reason he wouldn’t allow an up-down vote on Garland is because he was worried about “fundamental civil liberties”, and not just because he could?

        1. There’s a major difference between court packing and the normal business of the senate in confirming or not confirming, or not holding hearings on a candidate.

          1. There’s a difference. Whether it’s major or not is a matter of opinion.

          2. Pretending that not even holding hearings for a nominee for eight months was “normal” is a sign of biased reasoning, not critical thinking.

  6. Comedy is hard.

    Best not to try.

  7. I meant to say Griswold rather than Ginsburg. Freudian slip

  8. Shorter version of Josh Blackman:

    Blah, blah, blah. Virtue signaling, virtue signaling, virtual signaling.
    HEY TRUMP, PLEASE APPOINT ME TO A FEDERAL COURT (or add me to your administration) IN YOUR SECOND TERM.

    Geez, Josh: We. Get. It. Already.

    1. Geez, Josh: We. Get. It. Already.

      Sorta like we got it a looooooong time ago about your feelings about Josh. Be the change you want to see in the world.

      1. I have to admit that you’re making a reasonable point. In the future, I’ll wait a bit after each crazy Josh Blackman OP, and I’ll make my observation only if others are ignoring the elephant in the room.

        I don’t have Trump Derangement Syndrome. But maybe I do have Blackman Derangement Syndrome . . . 🙂

  9. Josh, get new material. This horse has had enough.

    1. How’s he supposed to meet his post quota doing that?

  10. Here is the question, no one talks about. Why did Obama refuse to nominate someone else to the Supreme Court in 2016? If he had nominated 2 or 3 with the same result, it would have been an indictment of the Senate. Instead, he bleated and did nothing else. It was all Theater folks. Hillary was expected to pack the Court then. They failed.

    1. By refusing to even hold hearings on someone they had specifically named as being acceptable, Republicans already had indicted themselves. Obama was not going to be humiliated by withdrawing Garland, and nominating someone else, who also would certainly have not gotten a hearing.

      McConnell had declared — within hours of Scalia’s death — that he would not allow any nomination to go forward.

      1. You say that as though it is illegitimate. Scalia was the anchor of the conservative wing of the Court. Anyone Obama nominated would seriously move the Court to the left. So McConnell and the GOP would not agree to such a change.

        Yes, I know they gave other excuses, and tried to wrap that reality in high minded language, but that is the plain reality to anyone who can see through the political rhetoric.

        And that reality, IMO, is perfectly legitimate. (Although it was taking a big risk. If Clinton had won the election, she would have swung the court even further left.)

        As I have said here previously, had Ginsburg died or retired instead of Scalia, and Obama nominated Garland to replace her, then he would have been confirmed.

        1. McConnell lied his ass off to excuse holding the seat open for eight months. You really think he wouldn’t have held it open for four years if he could?

          For that matter, we saw what happened when Ginsburg died… McConnell swore to fill the seat within hours.

          So are you an idiot for pretending that it was just about preserving the makeup of the court, or are you just dishonest?

          1. Take some tranquilizers. I heard they sometimes help for people with your condition.

        2. It is illegitimate – that’s why we can’t let the GOP get away with it without some tit for tat. I can take a lot, but Garland was over the line.

          1. Other than your saying “it is illegitimate,” you have provided no argument for why it is. The Constitution says that appointments to SCOTUS are with the advice and consent of the Senate. The Senate was not consenting to any nominee who would change the ideological makeup of the Court, which meant anyone that Obama nominated.
            (Had Obama nominated someone like Gorsuch, he probably would have been confirmed. Of course, that had as much chance of happening as him nominating a pink unicorn.)

  11. My view, is that Biden is an exceptionally pandering politician. His instinctive reaction to anything is to wet his finger and stick it up in the wind to see which way it is blowing.

    He (and others like Schumer and Nancy Pelosi) well know that this is potentially political dynamite. Franklin Roosevelt could not do it, and he was far more popular, and had far more Congressional support, than Joe Biden ever will if he lives to 120. OTOH, the base is demanding it. Which is why Biden refuses to answer any questions about it.

    So a “commission” is the best way to appease the base without committing to anything. It will take months to organize it, more months to debate and come out with a report, and then there will be dissenters and concurrences, and in nine months the whole thing will be forgotten.

    Or if not, and momentum builds, they will do it then.

    So this whole thing is primarily a political dodge, a way for Biden to be for court packing before he is against it. Or vice-versa. (Or verse-vicea).

    1. FDR did not have a history of Senate shenanigans such as Mitch McConnell´s regarding the Scalia and Ginsburg vacancies when he proposed packing the Supreme Court. Expansion of the Court is an appropriate remedy here.

      1. And FDR was dealing with a history of what he viewed as Supreme Court resistance to the New Deal, which was supposed to deal with the worst economic crisis the country ever experienced. Whether you think it is “appropriate,” court-packing is a political loser, and those who control the Democratic party know it. Hence the punting to a committee.

    2. My view, is that Biden is an exceptionally pandering politician. His instinctive reaction to anything is to wet his finger and stick it up in the wind to see which way it is blowing.

      You generally don’t make it 47(!!) years if you rock the boat very hard.

      1. I’ll note that Biden was WAY ahead of then-president Obama (and most federal Democrats) in re gay marriage. My recollection was that Biden pushed Obama towards a more gay-rights-friendly position. That did show some courage.

        As a general rule, politicians (well, long-lasting and successful ones) don’t take unpopular stands that often. When Ted Cruz takes his next courageous stand, it’ll be his first one. Same for Rubio. Same for Boxer. Same for . . .

  12. FDR had large majorities in both houses yet he failed to pack the court. The Legislative Branch upheld its Constitutional Duty.

    I shudder to think of what of would have happened if he had succeeded.

    As it was he succeeded in shattering Presidential Norms.

    1. You seem unfamiliar with the Constitution’s provisions regarding the Supreme Court’s size.

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