Biden prepping to endorse sweeping changes to Supreme Court

this guy gets it

 

This.

This is what I told Conservatives that complained about academia as well - no one broke the rules, those with strong beliefs decided to pursue study and influence down a particular path. The same is true of the Federalist Society.

Now - I would point out that a lot of the success has been good lucky - and smart politics. The Democrats did not pressure RBG to step down, and she died at the wrong time, and McConnell played politics well...... coupled with Kennedy stepping down.

 

US life expectancy in 1778, when Federalist 78 was written, was 38 years. Now it's almost 80. I don't think the Founders would've wanted 80-year-olds sitting on the court, serving in Congress, or serving as president.

This also ignores the modern political circumstances surrounding Supreme Court appointments. Bork, Thomas, Garland, Kavanaugh, and Barrett were all handled in politically-motivated ways. I have no doubt that the GOP would be clamoring for "reform" if Hillary Clinton had won in 2016 (assuming they would've allowed her to seat any nominations at all). But, if you think that "cooling the temperature" of our politics is a worthwhile goal, then a more staggered, measured approach to vacancies and terms is better than what we have now. It also assumes that justices act apolitically. Samuel Alito's recent actions undermine that assumption.

You're arguing in favor of spiking the football when the better question is why do we even need a football to be spiked.

 

well known that life expectancy in 1778 was primarily affected by infant and childhood mortality . . . if you made it into young adulthood, expected lifespan was similar to that of modern times

 

We have term limits on being President - so it isn't too far fetched to have term limits on the SCOTUS. From a long term perspective I am against term limits, on the whole I believe that it has kept the country from being too radical one way or the other.

As for Biden - no, it isn't going to happen any time soon but it plants the seed for a possible change down the line and it may motivate left sided turnout as it is a topic that concerns democrats.

A lot "this should never happen" things have happened since 9-11 and it seems to only be accelerating at this point - with both parties hurling closer and closer to each other.

 

But what if that purpose isn't working out as intended?

I'm going to pull this analogy out of the distant internet, but do you remember the draft lottery wheel proposal? Zach Lowe wrote this way back in 2013:

Compare this to Supreme Court appointments. There would be no benefit to politicizing the nomination process (to our current degree) and there would be no incentive structure in hoping that some octogenarians die at the right time for your preferred side. There would be no contentious proceedings like Garland or Barrett. The political hotheads in Congress that the Founders feared would be disincentivized to apply their short-term political goals to the supposedly apolitical court.

 

we are seeing right now PRECISELY why the insulation of the judiciary from politics is so necessary. Right now is the perfect illustration of how it is working out as intended

 

https://constitutioncenter.org/the-...tail/alexander-hamilton-federalist-no-78-1788

Summary

On May 28, 1788, Alexander Hamilton published Federalist 78—titled “The Judicial Department.” In this famous Federalist Paper essay, Hamilton offered, perhaps, the most powerful defense of judicial review in the American constitutional canon. On the one hand, Hamilton defined the judicial branch as the “least dangerous” branch of the new national government. On the other hand, he also emphasized the importance of an independent judiciary and the power of judicial review. With judicial independence, the Constitution put barriers in place—like life tenure and salary protections—to ensure that the federal courts were independent from the control of the elected branches. And with judicial review, federal judges had the power to review the constitutionality of the laws and actions of the government—ensuring that they met the requirements of the new Constitution. Other than Marbury v. Madison(1803), Hamilton’s essay remains the most famous defense of judicial review in American history, and it even served as the basis for many of Chief Justice John Marshall’s arguments in Marbury itself.​

 

I struggle to see how that's true when you've got datapoints like Garland and Barrett. The Senate (a short-term, political chamber) held sway over who got confirmed to the long-term apolitical branch. Republicans and Democrats wouldn't vote for their preferred nominees if they didn't think the judges would issue rulings that aligned with their political desires.

We're not going back to the days of 97-0 or 96-3 Supreme Court votes under the current arrangement.

 

you clearly haven't read anything from Barrett I take it

 

I'm not talking about her rulings. I'm talking about the circumstances under which she was nominated and confirmed on a 52-48 vote.

 

and I'm guessing you mistyped "Garland" when you probably meant "Gorsuch"

 

right. she was nominated. she was confirmed.

what's the issue?

 

I actually did mean Garland!

My point is that I do not trust the short-term political Senate to have long-term apolitical aims for the Court. As @Nook said, the GOP has taken advantage of circumstances to get their preferred justices seated. The Democrats would've done the same.

Considering modern polarization I do not see how the political Senate, which holds the keys to confirmation, can be the cooling saucer for a supposedly apolitical court.

 

Also - the length of service of prior Justices was a mixed bag. There were Justices like Washington, Marshall, Johnson and Story that served for 25-35 years in the first 50 years of the Court. The biggest difference I can find is that we over time have had less Justices that serve 5-10 years and then step away. We even had some young Justices early on, like Washington and Johnson that were not even middle aged when they got the job.

Now - when you look at the Court, this is a court where the length of service and the age of the person appointed was strategically taken into consideration and ideology has been a huge decision basis over accomplishments. Both parties have appointed younger people, with strong political opinions and with longevity in mind.... and we have a 6-3 Court and both parties know there is a chance that the Court could be conservative for the next two decades, and the Democrats do not like it and the Republicans are fine with it - all based on politics.

Also - the Democrats need to realize this has happened before - Richard Nixon was able to appoint 4 Justices in 3 years. Then Ford came in and appointed another one. Carter won the election and wasn't able to appoint anyone - then Reagan got to appoint 4 more and Bush Sr. appointed 2 more.... the Republicans between 1969 and 1992 had appointed 11 straight Supreme Court Justices!

The most important President in US History, FDR appointed 9 SCOTUS members, and then Truman appointed 4 more! Then Eisenhower (the most moderate President in modern history) appointed 4 more, then Kennedy and Johnson together appointed.

These things tend to go in spurts historically and right now the Democrats are on the short end. The Republicans were as well in my lifetime.


This whole issue reminds me of immigration - people now act as if what is happening now from an immigration standpoint is unique and new. It isn't - immigrants have always been unpopular, and the groups of poor people coming are always discriminated against, and there are always illegal immigrants and some of them have terrible back stories - and eventually they acculturate.

 

I don't know if it is or isn't working as intended. The Justices across the board are clearly politically motivated and aligned - and that seems to come before anything else. Perhaps we should reform the Court - but I will say that I don't think the right time to reform the Court is when one party has a large advantage over another. I think that it should be something that the majority of people across the board support before it takes place.

I'll warn the Democrats, like I have warned the Republicans about supporting Trump - if the door to Court reform of the SCOTUS is opened, it isn't going to be closed, and next time it could be the Republicans deciding to make changes because they are outnumbered..... look at the power of the Executive Branch post 9-11.... that isn't going away.

 

I now understand your reference to Garland and Barrett . . . I guess my response is simply to observe that the over-politicization of the Senate confirmation process seems to have originated with Teddy Kennedy and yours and my favorite current President, then-Senator Joe Biden from Scranton PA, when they Borked Bork. This is why we cannot be unburdened by what has been:

“Borking,” explained: why a failed Supreme Court nomination in 1987 matters
Robert Bork’s Supreme Court hearings changed politics — but not how you might think.

https://www.vox.com/2018/9/26/17896126/bork-kavanaugh-supreme-court-conservatives-republicans

excerpt:

“Borking” is now viewed as a widely used practice for both Republicans and Democrats, though now it generally means attempting to bring down a high-level candidate with “personal attacks” on something seemingly irrelevant to their jobs. For example, Bill Clinton’s first choice for attorney general, Zoe Baird, was “Borked” in 1993 when news that she had hired an undocumented immigrant as a nanny for her children came to light (her nomination was withdrawn).

And in August of this year, Sen. Hatch — the same senator who had so fervently defended Robert Bork’s nomination — wrote in USA Today, “In their zeal to portray Judge Kavanaugh as the embodiment of our greatest fears, Democrats have gone borking mad.”
​

more

 

I think @Nook said it best: once a political weapon is used, it's never put back in the bag. Bork may have been the original sin for our current partisan nomination fights, but I'm in favor of anything that tempers our subsequent polarization.

As an example, I'd guess that if Clarence Thomas, Samuel Alito or Sonia Sotomayor dies before the election (or even before new senators are sworn in in January), lame-duck Biden will nominate a replacement that the Democratic Senate will confirm. These are the new rules of the game and the game sucks.

 

four of your five examples are conservative justices. who was the head of the Senate Judiciary Committee when the first two were nominated? What was the animating issue for all five? does that issue still exist for SCOTUS nominees?

 

Agree. They are clearly politically motivated.