Packing the Supreme Court?

[Harry Bosch]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

Agreed. Democrats should be like the republicans and not act political. Only act in the best interests of the country!

 

[Trausti]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

Agreed. Democrats should be like the republicans and not act political. Only act in the best interests of the country!

So what I read in this thread is, if Trump is reelected and Republicans maintain the Senate, all okay with Trump adding new seats to the Supreme Court. M’kay.

 

[Deepak]

Didn’t Ginsburg say that court packing was a terrible partisan idea?

Agreed. Democrats should be like the republicans and not act political. Only act in the best interests of the country!

So what I read in this thread is, if Trump is reelected and Republicans maintain the Senate, all okay with Trump adding new seats to the Supreme Court. M’kay.

If you think they have that mandate then why haven't they already done it? What it would be is a choice offered to the electorate:

1. If the Republicans don't force an appointment through then nothing changes
2. If they do then we're asking for a mandate to pass this law and increase the size of the court
3. If you don't care then the Republicans get the court anyway

It's a clear promise with a clear timeline. There's no effective difference between a 6-3 court and a 16-3 court as far as the mechanics of how it operates.

What exactly is your rationale for this statement? I mean, it's worded almost like you'd care, but I can't actually imagine anything but hearty support from you if McConnell tried to do exactly that. Surely it can't be an appeal to tradition: not only would it be nearer an election than any appointment in history but it would also violate the new precedent set in 2016 by McConnell and the Republican senate. It can't be legitimacy because, well, ballots have already started to be collected in this election. If your position is that whichever party has the votes to do something has the mandate to do something, well... then your point is self-effacing.

 

[Jayjay]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Well Derec, it's like this: The majority has the power to change the rules, including the rules about what it take to change rules. Now that Moscow Mitch has torn down the house by lowering the bar to 51 votes to install a political hack as a SC Justice, the Dems - if they got control, and had the courage and the will, could pack the court, then change the rules to disempower both themselves and any future Congress from changing the rules without, for instance, a 60 vote threshold ...

IOW, get the horse back in the barn and slam the door shut behind them.

Changing the rules on what it takes to change the rules sounds implausible. When was that ever done before? Is it even constitutional?

 

[Jason Harvestdancer]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

You think the idea hasn't occurred to Mitch McConnell before, or that he wouldn't do it if he had the political ability to pull it off?

Noooo.......

I'm thinking that those proposing this think that the idea hasn't occurred to McConnell.

 

[Deepak]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Well Derec, it's like this: The majority has the power to change the rules, including the rules about what it take to change rules. Now that Moscow Mitch has torn down the house by lowering the bar to 51 votes to install a political hack as a SC Justice, the Dems - if they got control, and had the courage and the will, could pack the court, then change the rules to disempower both themselves and any future Congress from changing the rules without, for instance, a 60 vote threshold ...

IOW, get the horse back in the barn and slam the door shut behind them.

Changing the rules on what it takes to change the rules sounds implausible. When was that ever done before? Is it even constitutional?

Of course it's Constitutional. This is exactly what happened in 2017

https://fas.org/sgp/crs/misc/RL30959.pdf

On November 21, 2013, and again on April 6, 2017, the Senate voted to establish new precedents regarding the number of votes necessary to bring debate to a close on presidential nominations.

Under these precedents, invoking cloture on presidential nominations currently requires a vote of a majority of Senators present and voting, or 51 votes if all 100 Senators vote.14 Prior to the establishment of these two precedents, the cloture threshold for nominations was three-fifths of the Senators duly chosen and sworn, or 60 votes if there is not more than one vacancy in the Senate’s membership.

...

United States Supreme Court
Chief Justice—(life tenure)
Associate Justices—eight positions (life tenure)

 

[Angra Mainyu]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

No one. But look at demographics. It's far more likely that Democrats (or further left politicians) will control the presidency in the long run, and at least the House. The Senate might take longer, though not that long with DC and PR.

 

[Angra Mainyu]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

Because if the Democrats do this, it's very unlikely that the Republicans will be able to do so, especially if they also give statehood to DC and PR.

 

[Jayjay]

Changing the rules on what it takes to change the rules sounds implausible. When was that ever done before? Is it even constitutional?

Of course it's Constitutional. This is exactly what happened in 2017

That was changing the rules regarding cloture. What was suggested is changing the rules on what it takes to change the rules themselves. That would be a very different matter. Any senate can bring the cloture vote back if it wants to, with a simple majority. But a rule that says "you can't change the rules anymore" would be the real nuclear option. But I'm not sure if it is even possible.

 

[Deepak]

Changing the rules on what it takes to change the rules sounds implausible. When was that ever done before? Is it even constitutional?

Of course it's Constitutional. This is exactly what happened in 2017

That was changing the rules regarding cloture. What was suggested is changing the rules on what it takes to change the rules themselves. That would be a very different matter. Any senate can bring the cloture vote back if it wants to, with a simple majority. But a rule that says "you can't change the rules anymore" would be the real nuclear option. But I'm not sure if it is even possible.

There's no distinction here - or that is to say that cloture (and filibuster) are the means by which the rules are changed.

without, for instance, a 60 vote threshold

Which is exactly the procedural reason for changing the cloture rule https://www.senate.gov/reference/reference_index_subjects/Cloture_vrd.htm

 

[Elixir]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Well Derec, it's like this: The majority has the power to change the rules, including the rules about what it take to change rules. Now that Moscow Mitch has torn down the house by lowering the bar to 51 votes to install a political hack as a SC Justice, the Dems - if they got control, and had the courage and the will, could pack the court, then change the rules to disempower both themselves and any future Congress from changing the rules without, for instance, a 60 vote threshold ...

IOW, get the horse back in the barn and slam the door shut behind them.

Changing the rules on what it takes to change the rules sounds implausible. When was that ever done before? Is it even constitutional?

Who cares about whether it has been done before, or if it's constitutional? Certainly not Republicans. They changed the rules about what it takes to confirm a SCOTUS Justice, allowed the executive branch to flout the law, ignore their subpoenas and try to blackmail a foreign leader for political support. If they control both houses, all they have to do is get their caucus on board, and DO IT. My only hesitation is that they would then not have the courage to slam the door; raise the bar back up for all future rule changes.

The ball is squarely in the Rs' court - the only reason that a change in the size of the court would happen is if they force through an appointment before the election, purely by force of having more votes in the Senate.

Or if they lose the election and force a SCOTUS seat while in lame duck mode. THAT should (and I'd hope, would) result in a scorched earth response by the Dems.

 

[Jayjay]

But how would they do it? I'm seriously interested. I could be wrong but my understanding is that that they would have to abolish or rewrite the senate rule XX, that allows any matter to be brought to a vote regardless of cloture. On the other hand, getting rid of the cloture for judicial nominations did not actually change the wording, just the interpretation of the rules. It's a different process. The last actual revision of Senate rules was in 1979.

 

[Deepak]

I would offer that the Constitutionality does matter in that the process for Constitutional issues is separate. This is bread & butter legislative work.

 

[Jayjay]

I think dems could, in addition to threats of packing the court, suggest a moratorium on abolishing the cloture in exchange for republicans agreeing to delay the confirmation after the election.

If the democrats win the senate, the 60-vote threshold will be very important for the republican minority, maybe even more so than a supreme court nomination.

If the republicans win the senate and lose the presidency, they still have time to confirm Trump's nominee and lose nothing.

 

[Elixir]

I think dems could, in addition to threats of packing the court, suggest a moratorium on abolishing the cloture in exchange for republicans agreeing to delay the confirmation after the election.

If the democrats win the senate, the 60-vote threshold will be very important for the republican minority, maybe even more so than a supreme court nomination.

If the republicans win the senate and lose the presidency, they still have time to confirm Trump's nominee and lose nothing.

Heh. It would serve them right if the Dems promised them a 60 vote threshold, then reneged.

 

[Jason Harvestdancer]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

Because if the Democrats do this, it's very unlikely that the Republicans will be able to do so, especially if they also give statehood to DC and PR.

After all, as we learned after the 2008 election, once the Democrats control the House, the Senate, and the Presidency, they will hold them forever and it will never change hands ever again.

 

[skepticalbip]

Stupid idea. What is to prevent Republicans to expand the court to say 31 when they control presidency and the Congress next?

Because if the Democrats do this, there is no way the Republicans would get the idea they could do it too.

Because if the Democrats do this, it's very unlikely that the Republicans will be able to do so, especially if they also give statehood to DC and PR.

Does PR want statehood? They do have a choice in the matter. Past elections in PR indicate that their citizens don't want statehood because that choice has been given in several of their elections and has repeatedly been voted down. Most want to remain a territory but there is a large percentage that want independence.

DC is another matter. The land was granted to the federal government by Maryland and Virginia to establish a capitol that wasn't in any state. The government didn't need the land granted by Virginia so gave it back. It's questionable if the government could go back on the agreement with Maryland by declaring DC a state rather than returning it to Maryland.

The PR and DC statehood idea sounds a bit like a democrat wet dream.

ETA:
But, in any case, such plans to change the system to insure eternal power should scare the shit out of those advocating them if they actually thought about it. Do they really think the nation would be a better place with an authoritarian power grab that permanently disenfranchises half the population?

 

[Jayjay]

Nobody would get "eternal power" with DC and/or PR statehood. Sure they would side with Democrats now. But political parties tend to move to the middle in a two-party system. After a while they would be back to roughly 50/50 split between parties.

 

[lpetrich]

Yes, I'm sure that there is no such thing as a permanent majority. Frank DiStefano has a book out on the coming realignment of US politics, and he argues that there is no such thing as a permanent majority. He argues that both parties are coalitions of constituencies, and that a majority party sooner or later comes to neglect some of them. They then join the minority party, thus making the two parties more equal.

That might eventually happen, but that would require a big shakeup in the Republican Party.

 

[skepticalbip]

Yes, I'm sure that there is no such thing as a permanent majority. Frank DiStefano has a book out on the coming realignment of US politics, and he argues that there is no such thing as a permanent majority. He argues that both parties are coalitions of constituencies, and that a majority party sooner or later comes to neglect some of them. They then join the minority party, thus making the two parties more equal.

That might eventually happen, but that would require a big shakeup in the Republican Party.

Frank DiStefano apparently didn't bother to look at other countries where a political party took extreme measures to insure that they stayed in power. They generally stay in power, abusing that power, until the country collapses or a new governmental form is imposed. For one example, Venezuela's socialist party, after they won, took extreme measures to insure they stayed in power and now the country is on the verge of collapse. Germany's national socialist workers party won control of Germany in the mid 1930s and took measures to insure they stayed in power and they did until forced out by external powers.

The current threats by a few democrats in the US is, other than adding new democrat leaning states, is remaking the Supreme Court to their liking, eliminating the electoral college, no checks on voter qualifications, open boarders, allowing non-citizens to vote, etc.