Supreme Court Expansion

[TSherbs]

I really hope that we do not go the route of expanding the SC. Nine is enough, and expanding it should not be used as a counterbalance to the court drifting in any ideological direction.

Sounds like this commission will recommend against expansion. It is too bad that even this debate has become "partisan" among even this panel of 36 (now 34) members (according to the reporting from the Examiner).

I don't fault Biden for setting up the commission (this article calls it cynical), but I have a strong opinion about what is best in terms of maintaining the integrity of the independence (it ain't perfect, of course) of that body.

No expansion.

Term limits? I don't know (I haven't thought about it much). My inclination is no (again, no major changes), but what do you all think?

Yahoo News: Conservatives quit Biden's court-packing commission.
https://news.yahoo.com/conservatives-quit-bidens-court-packing-110000324.html

[Chuck Naill]

Merrick Garland should have been able to be considered, so, we can blame the current problem on Mitch McConnell. He’s a scourge on democracy.

[TSherbs]

The court has been expanded in the past long before MM.

My question is, should the court be expanded now, again?

It's your reply a yes, no, maybe?

[TSherbs]

Oops

[Chuck Naill]

My bad. Sorry for the rant. I agree, no expansion. However, McConnell should not have been allowed to have a double standard.

[dneal]

Good topic.

Maybe it was Mark Levin (I don't recall off the top of my head) who proposed an amendment allowing something like 3/5 of each house of Congress, or 2/3 of the States to override a SC decision. I'm torn on the idea. Certainly there needs to be recourse to "bad" SC decisions (some are simply partisan, but some are indeed bad - like Plessy v Ferguson or even Wickard v Filburn).

[TSherbs]

Good topic.

Maybe it was Mark Levin (I don't recall off the top of my head) who proposed an amendment allowing something like 3/5 of each house of Congress, or 2/3 of the States to override a SC decision. I'm torn on the idea. Certainly there needs to be recourse to "bad" SC decisions (some are simply partisan, but some are indeed bad - like Plessy v Ferguson or even Wickard v Filburn).And where do you stand on expansion? Or term limits?

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[dneal]

Term limits sound good, but I see too much potential for it going wrong. Not a term limit precisely, but mandatory retirement plagues the general/flag officer ranks, who go work for some defense contractor and apply pressure to active duty Colonels to get their stuff purchased. Without digressing too much, the only way for a Colonel to get promoted to General is if the "club" lets them in - and the club consists of retired generals leveraging after-retirement job opportunities to current generals. It's ugly, and disappointing.

So hypothetically say there is a 12 year term limit (it was Levin, btw, and that was one of his proposals too). Amy Coney Barrett is 48-49 or so. A term limit would boot her at 60-61. I don't want any SC Justice looking for a new job because it could easily create a problem similar to the GO/FO problem. Simply too much opportunity for corruption, on top of the partisan complaints we all have already.

Perhaps an age limit would be more effective. 75? 80? I'm not sure, and changes in medicine should continue to extend human lifespan. The lifelong tenure intended to free them from influence leaves us with the SC equivalent of a Senator Feinstein or Grassley. Call me agist, but I don't think 90 year olds should still be involved in government. RBG comes to mind as a most recent example of the problem with justices, but I'm sure there are others.

Expansion just creates new problems, and a high possibility for a political SC arms race. Each admin/party could just keep appointing more new justices to sway the balance to their side. FDR's threats on steroids, so to speak. I don't think the people would tolerate it, particularly when their party isn't in power.

[TSherbs]

I agree: no to term limits, yes to age limit (80), no to expansion.

I do not like the idea of Congressional over-ride, no matter how the large the majority. Keep the independent power completely independent.

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[TSherbs]

Now, how about what to do about moves in the Senate hearing and confirmation process? Should anything be done to take away the Senate leader's ability to table (stall, delay) a nomination?

I say yes, but I don't know how to do it because the Senate would never approve an amendment taking away that power. It seems, as with the filibuster (which I also disagree with), neither party has the desire to relinquish one of their tools.

What do others think about this?

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[dneal]

I tend to agree with no congressional override. I think State override is more feasible. I'm still undecided on each.

I think the problem with the hearing and confirmation process is just a symptom of the disfunction of the Senate, not a problem in and of itself. When the issue of separate powers is raised, people often think of Legislative v Executive v Judicial; and forget about State v Federal. That's an important balance that has been turned on its head, particularly after the passing of the 17th Amendment. For our international friends, Senators used to be appointed by State legislatures. The 17th amendment changed that to an election.

The point of the Senate was not just to temper the passions of the House, but to represent the States (in a 10th Amendment sense of "powers reserved to the States"). The best example I've heard is: an unfunded mandate imposed by the federal government on the states. A Senator is much less likely to vote in favor of such a measure, when they have to answer to a state legislature (who has to figure out how to pay for said mandate). I understand the concerns that prompted the 17th amendment, and local political machines and big money; but we've just relocated those to the beltway and made it easier to influence more Senators. Levin argued repealing the 17th amendment as well, but that's a much older idea than his proposal.

Generally I think a return to a limited federal government with specified responsibilities and powers (in line with the Framers' intent) would solve a lot of the national "issues" we see today. If State A wants recreational marijuana, for example, and State B doesn't; what business is it of the federal government? (and again for our international friends: marijuana is currently "illegal" because the federal government says so - it's a schedule 1 drug, classified so by the FDA). I'm actually surprised the blue-er states haven't jumped on the "Convention of States" idea (or something similar intended to restore power to the States).

[TSherbs]

I'll stay on the Supreme Court, of you don't mind.

I don't like the idea of State override, either. The Constitution applies to all 50 states equally, and I would not prefer to allow the states to exempt themselves from constitutional rule of law. Any state could, in theory, take away any of our federal Constitutional protections (the bedrock of all our legal freedoms).

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[Bold2013]

Keep it as is

[dneal]

Ok, but I was just answering your Senate question. I'd rather stay away from that as well.

The Constitution would still apply to the States. That's the real point of the supremacy clause (and the SC's interpretation of it). Somewhere along the line, that got turned into: every federal law is supreme because of the supremacy clause. There's really not much justification for that outside the SC decision in Wickard v Filburn (https://supreme.justia.com/cases/federal/us/317/111/).

The majority of federal laws passed since then cite the authority to regulate interstate commerce, with the SC holding that "An activity does not need to have a direct effect on interstate commerce to fall within the commerce power, as long as the effect is substantial and economic." That was never the point of the interstate commerce clause, and many justices have questioned where the limit of that seemingly endless authority is. It's argued that the decision (1942) was a result of "“the switch in time that saved nine.”

[TSherbs]

Ok, but I was just answering your Senate question. I'd rather stay away from that as well.

The Constitution would still apply to the States....

But aren't you in effect suggesting that it will apply, except for when it won't (when a state legislature could over ride it)? You appear to be suggesting that this would occur, in your mind, only in limited cases, but I am not reassured by this.

I sympathize with the pov that we are a long way from the weaker federal govt of the first days of the Republic. This I do not rue as you may. And I don't believe that we are ever going back. Our federal heritage as a nation is both a blessing and a burden, at times, alternatively and even simultaneously.




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[dneal]

Not really. The 14th Amendment and incorporation led the SC to rule that the bill of rights applied to States (where previously it only applied to the federal government). That's what prevents state legislatures from overriding the constitution. I'm ok with that, and I think it was the correct decision. I also imagine that most see the sense in the decision. The States delegate power to the Federal government, through the Constitution (with its amendments) that they ratified. They bound themselves to it. That's where its legitimacy comes from - the consent of the governed.

The states never gave the federal government the majority of power it exercises today. It is a usurpation of the powers clearly defined in the 10th amendment. I am skeptical of us going back as well, although the Convention of States movement has been making steady progress.

It's curious that the majority of people have little trust in the federal government, yet won't take back their own power through a process clearly described in Art V. Some seem to think that the federal government will see the error of its ways and relinquish power of their own accord. I see a Convention of States as the last offramp before a civil war. When (or if) either of those happens is of course not clear - but since we don't teach civics anymore it wouldn't surprise me if the latter happens first. Everything has become dangerously volatile - the SC debate just being one more potential spark that would set the whole thing off.

We're simply too diverse to be governed centrally, and the enormity of the corruption in DC is obvious to even the most casual observer.

[TSherbs]

Well like I said, I started this thread on expansion of the SC, and will keep my involvement in this thread focused on that. Others can discuss federal power expansion with you if they would like.

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[dneal]

Ok, but I'm responding to questions that you are asking.

"Now, how about what to do about moves in the Senate hearing and confirmation process? Should anything be done to take away the Senate leader's ability to table (stall, delay) a nomination?"

and

"But aren't you in effect suggesting that it [the Constitution] will apply, except for when it won't (when a state legislature could over ride it)? You appear to be suggesting that this would occur, in your mind, only in limited cases, but I am not reassured by this."

[kazoolaw]

The court has been expanded in the past long before MM.

My question is, should the court be expanded now, again?

It's your reply a yes, no, maybe?

I think I learned that the last expansion was to correspond to the increase in the number of federal judicial circuits. Doesn't apply now.

Other than the obvious exercise of naked politial power I've not seen any justification for expanding the size of the Supreme Court.

I didn't follow the rationale for setting up the commission: other than a political partisan threat is there a purpose for it? (I'm not addressing all political partisanship, it would take too long and go far off topic.)

I answer "No."

[TSherbs]

The court has been expanded in the past long before MM.

My question is, should the court be expanded now, again?

It's your reply a yes, no, maybe?

I think I learned that the last expansion was to correspond to the increase in the number of federal judicial circuits. Doesn't apply now.

Other than the obvious exercise of naked politial power I've not seen any justification for expanding the size of the Supreme Court.

I didn't follow the rationale for setting up the commission: other than a political partisan threat is there a purpose for it? (I'm not addressing all political partisanship, it would take too long and go far off topic.)

I answer "No."
I don't see any "reason" other than to appease those groups asking for it (hold the party together) and as some measure of trying to do something after the Garland delay tactics (another naked ploy for power). There are Democrats asking that Biden as a leader not roll over for McConnell on this one. I feel the pain, but I disagree with this tactic.

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[TSherbs]

My worry is that the next time a GOP president makes a nomination with a Dem senate, the delay will be for years. Kind of like filibuster use now, and impeachments. It's a shame that partisanship has been escalating this way. Cynical and toxic.

[dneal]

PBS (Frontline) made a documentary a couple of years ago about McConnell’s “revenge”, stemming from the Bork confirmation hearings. There’s enough blame to go around for both sides to have a generous helping, but I found it interesting from a historical perspective.

https://www.pbs.org/wgbh/frontline/film/supreme-revenge/

[TSherbs]

Yes, I remember the Bork hearings well. The resentment and anger was deep over that. But even before that the Warren court was anathema to conservatives. And Thomas came next and Anita Hill and the "assassin's bullet" thing. And then, and then, and then....

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[Chip]

What about a stop on supreme court appointments six months before a presidential election?

[kazoolaw]

Yes, I remember the Bork hearings well. The resentment and anger was deep over that. But even before that the Warren court was anathema to conservatives. And Thomas came next and Anita Hill and the "assassin's bullet" thing. And then, and then, and then....

With you right up to the "assassin's bullet." What are you referring to?

[TSherbs]

Yes, I remember the Bork hearings well. The resentment and anger was deep over that. But even before that the Warren court was anathema to conservatives. And Thomas came next and Anita Hill and the "assassin's bullet" thing. And then, and then, and then....

With you right up to the "assassin's bullet." What are you referring to?What Clarence Thomas said he would prefer to having to go through that hearing process.

[TSherbs]

What about a stop on supreme court appointments six months before a presidential election?And no ability to stop or delay a nomination prior to the 6-month deadline? I might be more comfortable with 3-month rule. Presidents should be able to exercise their Const power except in the narrowest of windows, it seems to me. If the Senate doesn't prefer a nominee, they should have to vote him|her out, not sleep walk it to an expiration date. IMO.

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[kazoolaw]

Yes, I remember the Bork hearings well. The resentment and anger was deep over that. But even before that the Warren court was anathema to conservatives. And Thomas came next and Anita Hill and the "assassin's bullet" thing. And then, and then, and then....

With you right up to the "assassin's bullet." What are you referring to?What Clarence Thomas said he would prefer to having to go through that hearing process.

"High-tech lynching" was the term that stuck with me.

[TSherbs]

Right, that too

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[Chuck Naill]

Was Anita Hill lying?

[kazoolaw]

Good topic TS.

[TSherbs]

Was Anita Hill lying?Likely not, but that isn't really the issue here. Both parties and multiple nominees have felt entitled either to an easy confirmation process and/or obstructionist behavior simply because it suits them at the time. Actually, Coney-Barrett was not as obnoxious in tone as the others. Anita Hill herself was incredibly dignified in an otherwise ugly and shameless display by both parties during that process. Thomas had behaved like a creep extraordinaire toward Hill, but the grandstanding in the hearings was obnoxious, too. Did Thomas deserve the job: no. Pigs don't deserve that kind of promotion. But that hearing process doesn't actually yield "fair" or appropriate results for responsible adults. It's really tough to watch our national leaders grandstand in such ways. GROSS

[pajaro]

Expand the Court to 2,021 justices and add one every year. I wonder if they could make a quorum.

[Chip]

Expand the Court to 2,021 justices and add one every year. I wonder if they could make a quorum.


And they could meet on the head of a pin.

[Empty_of_Clouds]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

[Chuck Naill]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

A sitting President can be denied his or her ability to nominate if the majority party speak says no.

[dneal]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

A sitting President can be denied his or her ability to nominate if the majority party speak says no.

Nope. A sitting President can nominate, but the Senate doesn't have to give its consent. Rules of the Senate are determined by the Senate.

I thought McConnell's stalling of Garland was BS; and they should have just "no" voted since they held power (we of course don't know if McConnell had the votes or not, but I assume he did). That said, I'm glad Garland isn't sitting on the court - particularly based on his running of the DOJ.

[Chuck Naill]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

A sitting President can be denied his or her ability to nominate if the majority party speak says no.

Nope. A sitting President can nominate, but the Senate doesn't have to give its consent. Rules of the Senate are determined by the Senate.

I thought McConnell's stalling of Garland was BS; and they should have just "no" voted since they held power (we of course don't know if McConnell had the votes or not, but I assume he did). That said, I'm glad Garland isn't sitting on the court - particularly based on his running of the DOJ.

But McConnell didn't. What his actions did was to further the divide, and now we have an unbalanced court. It reminds me of being in a state tournament for 11-12 year olds and the state tournament director brings in a 15 year old pitcher and wins. They got the win, but didn't compete according to the rules which are in place to provide balance. Balance makes no one happy, but it is better than a stacked court. Now we have Thomas as the most powerful jurist.

[dneal]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

[Chuck Naill]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

Okay, your arguing semantics. My bad. The point remains that he was not allowed to compete as Trump's picks and the only difference is McConnell. Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

[kazoolaw]

Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

The ability to see hypocrisy in those we vote for, or identify with, is a characteristic to be admired.

[Chuck Naill]

Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

The ability to see hypocrisy in those we vote for, or identify with, is a characteristic to be admired.


It comes from training to be objective or at least try. If you just want something, no need to justify the act. If you cannot be honest with yourself, that’s most unfortunate.

[dneal]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

Okay, your arguing semantics. My bad. The point remains that he was not allowed to compete as Trump's picks and the only difference is McConnell. Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

Not just semantics. It is an important distinction when you are replying to a non-US-citizen who began their post with an admission of being unfamiliar with the U.S. legal system.

[Chuck Naill]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

Okay, your arguing semantics. My bad. The point remains that he was not allowed to compete as Trump's picks and the only difference is McConnell. Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

Not just semantics. It is an important distinction when you are replying to a non-US-citizen who began their post with an admission of being unfamiliar with the U.S. legal system.

Do you usually follow?

[dneal]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

Okay, your arguing semantics. My bad. The point remains that he was not allowed to compete as Trump's picks and the only difference is McConnell. Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

Not just semantics. It is an important distinction when you are replying to a non-US-citizen who began their post with an admission of being unfamiliar with the U.S. legal system.

Do you usually follow?

Yes, usually, but not when they're cryptic questions outside of any relevant context.

[Chuck Naill]

Chuck - I assume the disagreement arises from the term "nominate". Obama did indeed nominate Merrick Garland to the Supreme Court. He was not "denied his ability" to nominate. The authority to nominate does not include the authority to appoint. With the exception of recess appointments (another method of political gamesmanship), Presidential nominations to certain positions require Senate confirmation and approval.

Okay, your arguing semantics. My bad. The point remains that he was not allowed to compete as Trump's picks and the only difference is McConnell. Since I didn't vote for McConnell or am not from Kentucky, I find his actions both hyprocrital and obstructionary.

Not just semantics. It is an important distinction when you are replying to a non-US-citizen who began their post with an admission of being unfamiliar with the U.S. legal system.

Do you usually follow?

Yes, usually, but not when they're cryptic questions outside of any relevant context.

So, you don't. That's okay. I didn't expect you would.

[dneal]

How many pancakes does it take to build a doghouse?

[Chuck Naill]

Depends on the size of the dog doofus.

[TSherbs]

really, guys?

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[kazoolaw]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

dneal explained that Justices don't go on the Supreme Court simply by a presidential appointment. The President nominates a candidate, who becomes a Justice upon the "advice and consent" of the Senate. The constitutional theory is that that the three parts of federal government provides checks and balances. Therefore the President nominates, the Senate approves/confirms.

There are an odd number of Justices: 9. Makes it less likely there will be a tie/deadlock on voting. To be clear , there have in the past more (10, an even number), and fewer, Justices.

Justices are not identified by political party once they go on the Court. The more frequent identification is "conservative" or "liberal." There is a history of Justices being nominated as conservatives and voting liberal once on the Court with a life-time term of office.

States have different processes for selection. Here in Michigan candidates are selected by popular vote. They run as members of a political party, but are supposedly non-partisan upon election. Clearly a legal fiction. They do not hold life-time office. They are more political than federal Justices.

Which is all more information than you'll ever need or want.

[Chuck Naill]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

dneal explained that Justices don't go on the Supreme Court simply by a presidential appointment. The President nominates a candidate, who becomes a Justice upon the "advice and consent" of the Senate. The constitutional theory is that that the three parts of federal government provides checks and balances. Therefore the President nominates, the Senate approves/confirms.

There are an odd number of Justices: 9. Makes it less likely there will be a tie/deadlock on voting. To be clear , there have in the past more (10, an even number), and fewer, Justices.

Justices are not identified by political party once they go on the Court. The more frequent identification is "conservative" or "liberal." There is a history of Justices being nominated as conservatives and voting liberal once on the Court with a life-time term of office.

States have different processes for selection. Here in Michigan candidates are selected by popular vote. They run as members of a political party, but are supposedly non-partisan upon election. Clearly a legal fiction. They do not hold life-time office. They are more political than federal Justices.

Which is all more information than you'll ever need or want.




We saw with the Trump and McConnell team that all a president need do is throw out a name. So, the idea that any checks and balances exits is nonsense. Had the Democrats had the majority, Garland would be a SC justice. I am not saying this hasn't happened somewhere, some place before.

[TSherbs]

I don't know enough about the American legal system to comment in an intelligent fashion, but the fact that there is an odd number of SC appointments, coupled with the fact the SC appointments are nominated by the sitting President, seems to be a perfect recipe for bias. Basing that on my belief that SC judges, in general, are not apolitical (which may be wrong).

dneal explained that Justices don't go on the Supreme Court simply by a presidential appointment. The President nominates a candidate, who becomes a Justice upon the "advice and consent" of the Senate. The constitutional theory is that that the three parts of federal government provides checks and balances. Therefore the President nominates, the Senate approves/confirms.

There are an odd number of Justices: 9. Makes it less likely there will be a tie/deadlock on voting. To be clear , there have in the past more (10, an even number), and fewer, Justices.

Justices are not identified by political party once they go on the Court. The more frequent identification is "conservative" or "liberal." There is a history of Justices being nominated as conservatives and voting liberal once on the Court with a life-time term of office.

States have different processes for selection. Here in Michigan candidates are selected by popular vote. They run as members of a political party, but are supposedly non-partisan upon election. Clearly a legal fiction. They do not hold life-time office. They are more political than federal Justices.

Which is all more information than you'll ever need or want.




We saw with the Trump and McConnell team that all a president need do is throw out a name. So, the idea that any checks and balances exits is nonsense. Had the Democrats had the majority, Garland would be a SC justice. I am not saying this hasn't happened somewhere, some place before.I remind you of the appointments by Bill Clinton of two different women for attorney general who had to withdraw because of the Nannygate episodes. Presidents don't always get their picks just cuz they pick them.

But the partisanship has definitely gotten more ugly, primarily because of the battle that has been brewing for decades over Roe v Wade. That's the real driver in the background on both sides.

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[dneal]

Depends on the size of the dog doofus.

Nope. It's 12. Because ducks don't eat ice cream. But I didn't expect you would know that.

And that makes about as much sense as "Do you usually follow?" and "So, you don't. That's okay. I didn't expect you would."

@TSherbs - apparently so...

[Chuck Naill]

Keep trying, "nope". Maybe something will land.

[dneal]

Ok Chuck. Have fun with your pancakes.

[Chuck Naill]

:thumb:

[TSherbs]

Due to events/problems around the Supreme Court over the past few years, there has been more of a push for reform in this highest court (which has the least professional oversight). Here is a column suggesting three reforms. I agree with the first and the third, but not the second (expansion beyond nine members):

From Jennifer Rubin (WaPo)


The Supreme Court’s right-wing majority has been on a tear lately. In the last week alone, Justice Samuel A. Alito Jr. made inappropriate wisecracks during oral arguments about whether a web designer can object to working with gay couples, and several right-wing justices seriously considered adopting a once-fringe legal theory that could upend how state courts oversee elections. Allegations also recently emerged that in 2014, Alito leaked the outcome in the court’s Hobby Lobby/ case to a group of right-wing donors (which Alito denied).

Fortunately, there is no shortage of ideas to return sanity to the court. And there has never been a better time to advance them to the public.

As Maya Wiley, head of the Leadership Conference on Civil and Human Rights, explains, “The Supreme Court is now far out of step with the American mainstream and has, as a result, become the best organizer of its own court reform campaign.” Given the many ongoing scandals, such as leaked opinions and Justice Clarence Thomas’s refusal to recuse himself in cases involving his wife’s activism after the 2020 election, Wiley notes, “More Americans believe term limits, transparency and ethics reform are good ideas.”

The stakes couldn’t be higher. The court’s pattern of self-inflicted wounds erodes its credibility and undermines its stature. As the progressive Brennan Center for Justice put it, “The lack of structural democratic accountability is much of the reason why we ended up with a Court so out of step with the public and with mainstream legal thought. But it could also spell a crisis for the Court’s own legitimacy, spurring new attention to the broken system that gave us today’s radical supermajority and garnering momentum for efforts at Court reform.”

The good news is that there has been a concerted push to make what used to be a wonkish debate in legal circles about judicial reform a central political issue. Three main avenues for reform have emerged:

(1) Eliminate lifetime tenure for justices
Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements. Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed.

Ian Bassin of Protect Democracy, a nonpartisan pro-democracy group, tells me that Supreme Court term limits have gained wide support. “Supporters of the idea run the ideological gamut from Senator Cory Booker to Federalist Society co-founder Steven Calabresi,” he says. “The idea also generated broad support in the recent presidential commission on court reform.”

This is also gaining broader support among the public. A Monmouth University poll in September found that 2 in 3 Americans favor term limits.

One popular suggestion is to limit justices to 18-year terms — long enough to maintain independence but not to prevent new justices from refreshing the court. The terms could be staggered so as to give presidents regular opportunities to appoint justices. This, however, might require a constitutional amendment, although supporters argue it can be done by statute.

(2) Expand the court
A recent Marquette University Law School national poll showed that 51 percent of Americans (including 72 percent of Democrats) favored expanding the number of justices on the Supreme Court. And unlike term limits, which might require a constitutional amendment to achieve, there is no dispute that Congress has the power to enlarge the court.

The number of seats on the high court is not set in stone. It was set at nine when the nation had nine circuits (there are now 13). And Republicans effectively reduced the number to eight when they refused to consider President Barack Obama’s nomination of Merrick Garland to the court in March 2016.

Members of the presidential commission on the Supreme Court were candid about this reform: Court expansion would be the most effective means to dilute the influence of the current right-wing majority. The commission also noted that it could provide more diversity on our highest court, which is very small compared with those of other developed democracies.

Democracy itself has been threatened by politically compromised justices acting far outside the bounds of neutral referees. The commission reports:

[Critics] maintain that the Supreme Court has been complicit in and partially responsible for the “degradation of American democracy” writ large. On this view, the Court has whittled away the Voting Rights Act and other cornerstones of democracy, and affirmed state laws and practices that restrict voting and disenfranchise certain constituencies, such as people of color, the poor, and the young. This has contributed to circumstances that threaten to give outsize power over the future of the presidency and therefore the Court to entrench that power. . . .

Antidemocratic developments risk entrenching the judicial philosophy of the current Court majority for generations, while advantaging one political party.
For those who say expansion would politicize the court, remember that the court has already been politicized. Consider how we got here: Senate Republicans in 2016 refused to fulfill their constitutional duties to render advice and consent on Obama’s nominee on the grounds that voters should have a say, and then rushed to install Justice Amy Coney Barrett in 2020 even after early voting for a new president was underway. Court expansion would be simply be a corrective action to return it to its pre-MAGA incarnation.

And for those who caution that Republicans, should they regain full control of Congress, could retaliate and expand the court further: This is a reasonable concern, but as Brian Fallon, co-founder and executive director of the progressive group Demand Justice, tells me, if that happens "we’re no worse off than we are now.”

(3) Implement ethics rules for justices
Ethical guardrails already exist for federal courts in the form of the Code of Conduct for U.S. Judges, as Glenn Fine explains in the Atlantic. This includes “conduct both on and off the bench, including requirements that judges act at all times to promote public confidence in the integrity and impartiality of the judiciary.” But the Supreme Court’s adherence to the code has no means of oversight or enforcement.

Here is where the Supreme Court’s cry for “independence” is most self-serving. Congress is “independent," but it has ethics rules and an enforcement mechanism. Same goes for the executive branch, which is subject to ethics laws such as the Hatch Act. Judicial independence should not mean freedom to act with impunity.

Consider Fine’s ingenious suggestion: “The judiciary as a whole should be subject to inspector-general oversight — to investigate alleged misconduct and to promote efficiency throughout the judiciary’s administrative operations, not to second-guess any judicial opinion.” He describes the ideal candidate: “an experienced, permanent, internal judiciary inspector general, potentially reporting to the chief justice." Perhaps retired justice Stephen G. Breyer could fill such a role.

Rakim Brooks, who heads the progressive group Alliance for Justice, points to an existing entity that could take up this task: the Judicial Conference, which is headed by the Supreme Court chief justice and composed of the chief judge of every circuit, the chief judge of the Court of International Trade and a district judge from each regional judicial circuit. The body addresses a host of policy and management issues for the federal courts, such as allegations of personal misconduct by federal judges. That or a similar body could administer a mandatory code of ethics for the high court and demand greater transparency in recusal decisions without compromising judicial “independence.”

This could be done by statute, or the Supreme Court could be obliged to adopt it by virtue of public pressure.

The path forward
None of these reforms is radical. The Brennan Center observes: “The U.S. Supreme Court is an international outlier in many respects when compared to the high courts of other countries, including how much authority justices wield — and for how long.” Moreover, the public has never been so engaged on the issue, as the reaction to the court’s decision to overturn abortion rights has shown.

For Fallon, the path forward for court reform needs to be “all of the above.” For those skeptical that such change is politically possible, he counters that court expansion has gone from an offbeat position held by a few progressives to a near-unanimous pledge among Senate Democratic candidates. Meanwhile, legal groups that were once hesitant to challenge the court, such as Public Justice and Lambda Legal, have come around to support reform.

Over the next year or so, Fallon’s group will hold scores of events with lawmakers and progressive reformers and run digital ads to highlight court scandals. The goal is to try to double co-sponsors for judicial reform legislation in Congress (currently there are about 70). A vigorous ad campaign could also help average voters understand how arrogant and partisan justices have become. On Monday, for example, Demand Justice released an ad highlighting the testimony before the House Justiciary Committee by Robert L. Schenck attesting to his influence campaign on the high court’s right-wing justices.

The goal should be to rebuild the public’s confidence in the rule of law. There is arguably no more important task. It’s time to start preparing the public to save the Supreme Court from itself.

I don't agree with everything stated here, but if things continue to deteriorate in how the SC behaves and is perceived, then something will likely need to be done. Or "ought" to be done, anyway.

[Chuck Naill]

I also agree with 1&3. I had never listened to Thomas' nomination hearing until a few years back, then after listening to Kavanaugh's, they ring with familiarity. What if we all dealt with a lack of judgement and then later vilified the accuser as way to exonerate ourselves? How would these two judges administrate their courts if the accused used this same tactic?

Another concern is spousal responsibility. If you decide to marry a judge, wouldn't you expect that you'd be expected stay out of partisan politics so that even the appearance of a lack of impartiality wasn't made? I suspect that Thomas would use the same tactic in his defense as before...shoot the messenger.

[dneal]

TLDR for TSherbs post:

Liberal media outlet owned by a billionaire and liberal think tank find SC decisions they don't like "problematic", and talk about ways to "fix" it; all of which was delivered to them by liberal Senate Majority Leader Harry Reid implementing the "nuclear option".

*yawn*

[Chuck Naill]

What-about-this!! LOL!!

[dneal]

73963

[Chuck Naill]

More what about this and no substance pictures .

[Chuck Naill]

The next will be candy and a screen shot.