Who decides which cases are heard by which panel? Unless it's randomized, it could be gamed. But it's an interesting idea.
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Democrats Planning to Add 4 New Justices to the Supreme Court (1 Viewer)
- Thread starter ekbeats
- Start date
Chaz McNulty
Footballguy
We have 9, but we do not really have the issue of Right/Left judges like you do.
I cannot even remember the last big case before them.
I think the UK has 12.
Is it? Then you've already changed your mind from earlier when you said:
I guess the fact that you're only packing 3 more instead of 4 technically makes this proposal different, but I don't know that it makes it better, or even interesting.
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Dinsy Ejotuz
Footballguy
He certainly could have brought it up for a vote, but Garland would have been confirmed if he had. That's why he didn't. And IMO one man reinterpreting the how the Constitution has been interpreted for 240 years isn't quite the same thing as Congress passing a law. But YMMV on that - so you can have the last word.
I'm curious what you and some other thoughtful conservatives think Dems should do in cases like these? Turn the other cheek? Fight back in some other way? Only let Presidents whose party controls the Senate nominate Supremes?
I think there's almost no chance of that. The Senate wasn't voting for anything Obama did. McConnell had a grip on the Senate Republicans. Was there any commentary from that time suggesting otherwise? My memory is eminently fallible, but I remember it being a forgone conclusion shortly after Garland was nominated that, even though he was quite moderate, the Republicans would be opposing his confirmation in lockstep. Denying him a vote wasn't to prevent his confirmation; it was to prevent blowback against individual Senators from voting against him.
Put a greater emphasis on winning elections. The Dems need more Joe Manchins from purple states. And they need to focus on left-leaning ideas that poll well among the general electorate, not just among Democrats. Invest in green energy, legalize weed, raise the minimum wage, and make housing and college more affordable -- don't talk about defunding the police, reparations for slavery, or open borders.
And when you have the Senate but not the White House, be the change you want to see. Confirm competent nominees.
fatguyinalittlecoat
Footballguy
As far as I know, more moderate Senators like Susan Collins never publicly stated whether they would vote for or against Garland.
Dinsy Ejotuz
Footballguy
They confirmed Sotomayor (63 votes) and Kagan (68 votes). And Garland was probably an even more appealing nominee. Having said, he held the caucus together behind not having a vote, so maybe you're right.
On the second part, Dems have won elections. They currently hold the Presidency, Senate and House. Presumably that entitles them to use the same sorts of power exercised by Republicans.
Making a public statement would defeat the whole purpose of avoiding a vote.
Not when Republicans held the Senate. McConnell didn't go scorched earth until he was Majority Leader.
fatguyinalittlecoat
Footballguy
Sure, but then it seems sorta presumptuous to assume Collins was a no vote.
ETA: This makes it at least seem like she might’ve been a yes vote.
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fatguyinalittlecoat
Footballguy
Also worth noting that there were a couple retiring Senators at the time that might have been willing to go against McConnell, the most prominent being Jeff Flake. Dems would have only needed three Republican votes I think. I don’t think the result of the vote was a foregone conclusion.
The way I remember things, my sense was that it was widely expected that Republicans in the Senate would not defy McConnell with their votes if they got the chance. But my memory could be wrong. I don't know how to convert it into a testable theory.
I think Jeff Flake was on record saying he'd vote against Garland unless Hillary won, in which case he'd vote to confirm Garland before Hillary's inauguration (because Hillary's nominee would be worse).
fatguyinalittlecoat
Footballguy
I don’t think we can ever know. My suspicion is that you’re probably right but I’m not nearly as confident as you. And I think if Collins had voted against Garland she might not be in the Senate anymore.
Thunderlips
Footballguy
fatguyinalittlecoat
Footballguy
That’s not what I recall Flake saying.
At the time of Flake’s statement, McConnell had already announced there would be no vote.
Flake said in response to that if Hillary wins, we should have a lame duck vote for Garland.
As far as I know he never stated how he would have voted if McConnell had allowed a vote before the election.
jm192
Footballguy
I think expanding the court is a dangerous game. It's amazing that it's 4 seats being proposed because of a bunch of reasons other than "it's just enough to give us the majority." At some point, the Republicans will be in power. Should they re-expand the court to 15? Add 2 Republicans on? And then in another 4 years the Dems can take back the majority.
I think Garland should have been voted on and confirmed. Mitch and the Republicans were wrong on that. They at the very least owed them a hearing so as to show going through the process. It's a much better look to say you heard the arguments and decided against. I know most people on here detest Mitch, and we could spend a long time on Mitch alone.
In any event, it's nothing like creating enough to seats to put your party in the majority. People have started playing linguistics and re-defining court packing. "Mitch stole 2 seats1!!" "They packed all the other federal courts!!!" You can use court packing in any sense that you want--but nothing the GOP has done is comparable to the other 2 branches of government expanding the courts to give their side the majority. Maybe we need to stick to "Expanding the SCOTUS," when discussing it. But it's absurd to suggest that using your majority to not confirm a guy is the same as using it to create 4 new seats.
I think Garland should have been voted on and confirmed. Mitch and the Republicans were wrong on that. They at the very least owed them a hearing so as to show going through the process. It's a much better look to say you heard the arguments and decided against. I know most people on here detest Mitch, and we could spend a long time on Mitch alone.
In any event, it's nothing like creating enough to seats to put your party in the majority. People have started playing linguistics and re-defining court packing. "Mitch stole 2 seats1!!" "They packed all the other federal courts!!!" You can use court packing in any sense that you want--but nothing the GOP has done is comparable to the other 2 branches of government expanding the courts to give their side the majority. Maybe we need to stick to "Expanding the SCOTUS," when discussing it. But it's absurd to suggest that using your majority to not confirm a guy is the same as using it to create 4 new seats.
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Here's Flake saying he supports waiting until after the election to hold hearings on Garland. He doesn't specifically say that he'd vote against confirming Garland unless Hillary wins, but that's the sense I get from it.
I don't see any way the Dems actually do this - this is more about giving the Trump Party a reason to cry, and throwing some vegan food to their own base.
I do think the court should be expanded, and I think there is a better than 50-50 chance it eventually does expand. But, I think when it does so, it will be a gradual expansion, along the lines of 2 new justices added 4 years apart. (I would have said 1 new justice added every 2 years, over 8 years, but realize the even number of justices would be vexing.).
Or it could be something like for the next 4 vacancies, the president nominates 2 new justices.
I do think the court should be expanded, and I think there is a better than 50-50 chance it eventually does expand. But, I think when it does so, it will be a gradual expansion, along the lines of 2 new justices added 4 years apart. (I would have said 1 new justice added every 2 years, over 8 years, but realize the even number of justices would be vexing.).
Or it could be something like for the next 4 vacancies, the president nominates 2 new justices.
I suppose Joe Biden is entitled to make nonsensical all-caps rants on Twitter, replete with improper spelling and punctuation, but that doesn't necessarily make it a good idea. (Although I do think it would be fun just for trolling value.)
Sometimes Republicans do things that shouldn't be imitated.
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The Commish
Footballguy
See....I see this whole thing as the "next logical step" in the power grab. I don't find any significant differences between the shadiness. To take this position would require us to say it's hugely different for the GOP to expand it by 6 seats when they get the opportunity and I simply don't see it that way.
That said, I don't see Biden doing it. I think there are many other things he might consider doing including the possibility of a Constitutional Amendment proposal to change "lifetime" appointments. I have found very few reputable people on either side that are proponents of an increase of seats and I don't think there's a chance in hell that the committee he's creating to review the judicial system would ever propose it...not with those that have been picked to be on the committee.
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jm192
Footballguy
This discussion highlights something pretty important and cool.
When I start posted here (The PSF, I've been on footballguys for a while), I assumed all of the left leaning/Dem posters supported everything the Dems said/did, and I'm sure people assumed the same same of me and Republicans. I think a lot of times people fall into the trap of defending their side, going way down a different rabbit hole to make a tangential point to make their side look right, etc.
We shouldn't just assume because of your stance we know how people feel about a given issue. And it's really cool to see the dialogue here.
When I start posted here (The PSF, I've been on footballguys for a while), I assumed all of the left leaning/Dem posters supported everything the Dems said/did, and I'm sure people assumed the same same of me and Republicans. I think a lot of times people fall into the trap of defending their side, going way down a different rabbit hole to make a tangential point to make their side look right, etc.
We shouldn't just assume because of your stance we know how people feel about a given issue. And it's really cool to see the dialogue here.
Rather than saying that McConnell stole a Supreme Court seat from the Democrats, I think it's more correct to say that, by denying Garland hearings and a vote, McConnell stole a Senate seat.
The Commish
Footballguy
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Herb
Footballguy
Are you trying to say that you're not a racist in complete lockstep with right-wing media? Who'd have thunk?
Great post, and we need more like this. The political climate that arose around Obama's presidency and exploded during the Trump era will take a lot of time to tear down, but if we can actually listen to each other, we might get there.
Da Guru
Fair & Balanced
This will not happen if for optics only.
If they expand it is not for the good but only to take control of everything. If GOP takes over control and they add 2 more judges to gain power then what?
What will happen is that the SCOTUS will all be politicians but wearing robes.
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Dinsy Ejotuz
Footballguy
rockaction
Footballguy
The Supreme Court isn't comprised of politicians. That's something only those that haven't had the benefit of legal study or those who believe in domestic realpolitik and its attendant influences think. In fact, the Court's decisions are replete with an almost crazy fidelity to stare decisis, the prudential doctrine stating that they won't overturn cases unless they fundamentally have to. They'll whittle around the edges, say that certain tests should be weighted certain ways, that different phrases have different definitions that don't keep with historical meaning (like in Kelo), but they generally do not politicize or overturn cases. In fact, some of the judges' political dispositions aren't in keeping at all with how they view the law or the constitution and their judgments and opinions stem from not a politicized place, but rather, a philosophical one regarding how they understand the laws to have come amount and what they extend to, to the best of their abilities, properly understood.
To say that they're politicians with robes undermines the legal mission and the Court's. It is not necessarily so. In modern times, Justice Douglass was the closest to ever becoming a rogue politician on the bench (it is no accident that he is the one who "discovered," within the Constitution, the intellectual grounds for the right of privacy and abortion) and was almost impeached for erratic behavior in the early seventies. Brennan and Marshall were also considered heavily indebted to policy concerns on the bench at that time, but to call them mere politicians is to denigrate their legacy as jurists worthy of reading and understanding. That their opinions often hinge on what Cardozo called "The Sociological Method" is a reason to study policy and legal realism vs. legal formalism, intent, and logic and see where one stands on that issue.
But politicians in robes, no.
To say that they're politicians with robes undermines the legal mission and the Court's. It is not necessarily so. In modern times, Justice Douglass was the closest to ever becoming a rogue politician on the bench (it is no accident that he is the one who "discovered," within the Constitution, the intellectual grounds for the right of privacy and abortion) and was almost impeached for erratic behavior in the early seventies. Brennan and Marshall were also considered heavily indebted to policy concerns on the bench at that time, but to call them mere politicians is to denigrate their legacy as jurists worthy of reading and understanding. That their opinions often hinge on what Cardozo called "The Sociological Method" is a reason to study policy and legal realism vs. legal formalism, intent, and logic and see where one stands on that issue.
But politicians in robes, no.
jm192
Footballguy
I don't think the justices will ever be politicians. But expanding the court by 4 to put yourself in the majority definitely feels like politicizing the court.
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rockaction
Footballguy
Pardon me if I'm putting words in your mouth, but I think you meant to say "expanding the court by 4 to put yourself in the majority definitely...feels like a political move." Oh, it's nakedly political. We're in complete agreement about that if that's what you meant to say.
jm192
Footballguy
Yeah. I meant to type politicizing the courts, but same difference. I brain farted and typed the majority again haha.
rockaction
Footballguy
Then yeah, we're in full agreement. Adding four justices to obtain a majority feels like a blatantly political move and undermines the Court, in my estimation. 13 for 13 Districts, my ###. That's not even plausible denial there.
fatguyinalittlecoat
Footballguy
So we got these 4 new justices yet? What’s the hold up?
Ramblin Wreck
Footballguy
The Commish
Footballguy
Da Guru
Fair & Balanced
I agree..but do you think is the court was packed any of the new judges would go against party wishes? already some of Trumps judges have not towed the party line.
rockaction
Footballguy
I don't think we can say that they would act any differently unless the nature of the Court changed and they went to hearing cases where all the justices weren't included, say. But I don't think the decision-making would be any different and they might deviate from party line just like Trump appointees did. I will say, as a passing observer, that the liberal justices seem to move pretty lockstep in their decisions on key social issues; conservatives often split on those. The recent Title IX or VII case regarding gay and trans rights vis a vis an employer were a perfect example of that, where Roberts and Gorsuch found protections in what I thought was a bizarre textual reading of the legislation. That always seems to happen in the conservative part of the court (which was happening to Kennedy more than the others) and not on the liberal side, though it could be my own bias.
So, no, I don't think they'll act in a partisan manner, but the liberals on the Court seem entirely more partisan when it comes to social issues, if you get what I'm saying.
And before people go nuts, that's just my opinion and not a declarative about the state of the Court or anything. It's long been a conservative lament, just like the whittling down of Fourth Amendment protections over the past thirty years has been a liberal one.
Snotbubbles
Footballguy
In modern history, Nixon had two nominees rejected. Reagan had one. Bush II had one withdraw. Obama had one not voted on. So the count is 4 Republican nominees not confirmed and 1 Democratic nominee not confirmed (only went back 50 years, there are more).
https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States
Snotbubbles
Footballguy
If Hillary Clinton wins the election, McConnell wouldn't table a nomination for 4 years. The historical precedent was nominations DURING ELECTION YEARS where the President is a DIFFERENT party than the majority in the Senate. Honestly if the Dems controlled the Senate in 2020, 100% Barrett isn't getting confirmed.
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