How to ethically "pack" the Supreme Court

You "responded," but you did not answer my question, though I made it extra clear, for you. You are acting as if D's have the power to dictate the rules of the road to R's, which they really don't. And even if they did, you have failed to show how your kooky (and not necessarily Constitutional), proposed system, would yield any benefits, over the current one. Oh, what's that you say, Pollyanna? The Republican behavior will change, when they're in the majority, because they will appreciate your having twisted their arm to go along with your 30 candidate idea, when the Dems could have confirmed anyone they wanted?

All that would do, is waste a chance to balance the Court with a more Liberal voice.


Since you did not reciprocate, by giving me a clear answer, willingly-- or perhaps, do not know how to?-- I will try to twist an answer or two, out of you, if you have even considered this concept, you've unveiled here, well enough to actually have answers.

Let's start with (going back to) this one, central part of your whole idea:
Golem said: ↑
Especially with the requirement that they be serious proposals.

And I will resubmit just this single question which, to the best of my knowledge, you have not answered; therefore, your replying, "I already responded to that," would not be an "answer." If you had already explained your answer, feel free to quote yourself; I don't mind being served left overs, as long as they include a clear and reasoned thought. So, here is the one question, for which I'm trying to find if you truly have a response:

 

You're acting as if you hadn't read my responses to you in this thread. There are no "rules" for Republicans. They can do whatever the hell they want. The Democratic President does this on his own! HE decides (and I even indicated that Obama did this with Merrick Garland) to nominate justices from a list that HE asks Republicans to make with the conditions outlined on the OP.

Possibilities:
1- Republicans do make that list, and we get 6 (or whatever number... 6 is just an example for illustration purposes) independent justices.
2- Republicans REFUSE to make that list... Well, we're back where we started. No harm done But now the Democratic President can say (if he/she so chooses) that they offered the opportunity to Republicans. And do with that what they want. Either appoint the justices he/she wants, or not... I think the President will have mad a strong case to appoint the justices that he/she chooses.
3- Republicans make a list full of names like Rudy Giuliani or Sydney Powel.... Same result as 2. Except the President's point would be even stronger.
4- Republicans make a list that LOOKS serious, but includes names who they believe are radical. And one or two manage to evade the President's vetting process and get nominated. In this case, Senate Democrats will have to do their job and ask tough questions.

Your response seems to fall under the incorrect assumption that his is a law that Democrats pass, or that the President has to FORCE anybody to do something.

No! None of that. This is something a Democratic President CAN do on his/her own (like Obama tried to do) But it will work ONLY if Democrats hold a majority in the Senate. Because, if they don't, it will be another Gorsuch.... Republicans will just hold out on the confirmation until there is a Republican President. And next time they might not even care if they have to hold it for 3 or 4 years.... or even 7 or 8...

Now... with this in mind, what is your objection? The only one I saw was about Republicans doing the same when they're in power again. My answer to that is that even if we have an Independent SCOTUS for 2 years, that's better than the current status which is NEVER.

 

What you mean- is that you want your plan considered in the light of your values taken for granted without without consideration of the motive, and want confirmation......
And, under those premises- you are right, there is nothing to talk about.

 

My values are irrelevant. The only thing that is relevant is whether or not my proposal would work. I'll interpret the fact that you prefer to debate me, rather than about what I propose as an endorsement. Because changing the subject is what people do when they know the other person is right.

 

There aren't any you know it and I know it. So quit pretending to a reality that doesn't exist.

 

Given the Average Democrats ridiculous belief that non partisan means agrees with Democrats about everything this system will be no better than any other. In the end little more than an around the bend attempt to make sure scotus a left dominated pond in perpetuity.

 

@Golem

If you really want non-partisan judges, require that the nominee be confirmed by a 75% vote.

 

Well thank you for more specifically delineating, how you would foresee this happening-- I had not clearly understood this, from your earlier posts. And I think that your example, of Merrick Garland, is apt. But it is that example, of the Dems making an effort to be more collaborative instead of confrontational, which gives us our model of the type of "appreciation," one could reasonably expect, from the Republicans: as we all know, there was none, whatsoever.

The mistake, in your options, above, is expecting there is much chance of the Republicans providing a list of genuinely "independent" jurists. They would opt for #4, of suggesting all conservative judges. Being conservative, however, does not make them, not "serious" candidates-- so that is one error in your concept. On that note, I would add that, even of the more extreme conservative justices, "they"-- by which you'd been referring to Republicans-- do not view these people as "radicals;" to their minds, it is only liberal judges, who they view that way. So, it seems that you are basing your expectations of how this might be viewed, on the other side of the aisle, nevertheless, from one appraising it, using your own perspective. It is akin to thinking, "here, I will hold up this steak, in my arm, and so the charging cougar will realize it is easiest for him to grab just that, and be satisfied, rather than attacking me."

Repubs would offer a list of all who would be potential candidates, for a Republican President. That they don't have 30 "serious," (or now you have reduced it to a lower number) candidates, is your very large misjudgement (#2), that I will point to. So what does the Dem President do, with a list of Republican, conservative candidates? Does he disqualify them, just on that basis? After making his supposedly good faith offer, and having the Repubs respond with "serious" names, it is going to make the Dem look like quite a phony, isn't it, if he then rejects them all for being too conservative (even if he uses the word "radical"-- which would only add to our atmosphere of political & national contentiousness)? So it would seem the best option available to him, would be to stick to his offer, and choose a conservative-- but not overly conservative-- Justice, for the Democrat's opportunity to put a new member on the Court.

And you think this olive branch from a Democrat, would lead to reciprocation from those on the Right or, if not, that nothing would have been lost, in the attempt? Those would be my #3 and #4 faultings of your plan: the Republicans would view a Dem giving them the chance to so greatly influence the pick, as a tactical blunder; they would not repeat the mistake, when they had the chance to nominate whoever they wanted. This should be blatantly clear, at this point. Therefore, all your stratagem would have accomplished, would be to keep the overall composition of the Court's Justices, further to the Right, than it otherwise would have been (with Dems not feeling they had to beg for Republican approval, to get a Justice appointed). How does that give us an "independent SCOTUS," which you keep claiming? It does nothing of the kind.

In fact, I could hear a Republican, like Lindsey Graham, making your argument, to Dems, the next time a Democratic President gets a vacancy to fill. "I'll tell you what, Democrats. In the spirit of cooperation, what you should do, is let us on the Republican side, come up with a list of qualified, reasonable candidates, and the President should nominate someone, from that list. And when it is the Republicans who have the White House, we'll do the same thing for the Democrats. Take my word for it-- you can save the tape! "

 

Your plan....
And what if that democratic congress refuses to confirm any of the republican recommendations?

In your plan we have the concept of increasing the court size on the table, and accepted.... and the primary obstacle to packing the court is resolved.
Kind of failed to mention that; took it for granted that a "fair" sounding idea to stuff it would allow the expanding aspect of it idea to slide by...
Since the republicans couldn't provide any acceptable candidates- somebody else will have to. Right.

Congress regularly violates laws- so any "agreement" restricting selection by party would be worthless as well as illegal and even a law requiring them to pick from republican nominations not much better.

How about we clean congress up in the first place, so the members can no longer do all that scheming and dirty dealing?
Perhaps play by the 'Riverboat rules" from the old Mississippi gambling days.
Rules are the same for everybody. No hide-outs, all the cards on the table. IF you get caught cheating- you're out of the game and thrown over the side.

Your plan is not a sound idea, and of course fits neatly into the less than upfront strategies and policies of the left.
That's why your plan won't work. The people who would be in control of it would be untrustworthy.

But you already knew all that.

 

Not a bad idea. That would be hard, but also clean up the result.

 

There are many "solutions" to the problem that will NEVER be implemented. Let's think of options that CAN.

 

Merrick Garland was a conservative judge. I don't care if they're conservative. I just want them to be non-partisan. If they rule according to precedent and the constitution. Conservative justices would NOT have overturned Roe v Wade. They would not have passed Heller or Citizens United or ... any of the activist partisan extreme-right legislation that this Supreme Court has enacted in the recent past that had no precedent and no base on the actual rule of law.

An alternative would be for 3 to come from the Republican list, and 3 from a Democrat's list. But if we could find 6 justices like Merrick Garland, we'll be fine. Selecting partisan liberal justices would also defeat the purpose. I presented it as 6 justices chosen by Republicans hoping to get some serious feedback from Republicans in this forum. There wasn't... But I think this would also work even if all 6 had been proposed by Republicans. However, that is open to revision.

You can't be a potential candidate for Republican President if you don't have political ties. And by this I don't mean they are registered Republicans or Democrats. I mean that they don't have a history of political partisan activism. Somebody with no political activism wouldn't be a potential candidate for President.

He vets them.

If they have a history of political activism, definitely! They are discarded. This requirement should be set right off the bat.

He will definitely not be able to reject them just for the fact that they are conservative. And I don't think he should. The Supreme Court should not legislate. Period! And it has been legislating... probably since it was established. But if they don't legislate, it doesn't matter if the justices lean left or right.

Nothing. If Republicans obtain control of the Senate and Presidency at the same time, and they decide to pack the court with partisan justices, we will be back where we are now. Until the NEXT time Democrats control the Presidency and the Senate. I don't know that voters are smart enough to figure out which party is more honest, but we'll at least have SOME sanity.

And what's the difference between that and where we are NOW? Other than a few years in which there was independence in SCOTUS.

Oh... sure. If a Democratic President and a Democratic Senate manage to agree on adding justices to the court on their own, that would also work. But there would be a greater political price to pay. Unfortunately, I don't trust that Democrats are that courageous.

The title of the thread says "How to ethically pack the Supreme Court".

How does having a majority of independent justices in SCOTUS give an independent SCOTUS? Is that what you're asking?

Even better if THEY are the ones who come up with the proposal. The President can sit and negotiate AND demand better quality of the candidates they propose.

Bottom line, if Democrats are willing to take the political risk of adding justices on their own... fine. There WILL be a political cost for doing it by force But we will still get an independent SCOTUS for a while. If they don't want to risk the political cost, then what I am proposing would avoid that.

 

By your above logic, the left should have done their constitutional duty and not voted party line with Trump's picks.

"Performing their duties" does not mean voting with the democrats simply because the democrats want them to, and vice versa.

75% is the most viable solution. We need Justices with bipartisan support.

Your solution would just mean two partisan bodies would add justices every time they gain power.

Not to even mention we don't need to be packing the court anyway.

 

They would have to show a reason. But this also motivates Republicans who create the list to include justices that will pass the hearings.

And, BTW, being "conservative" would not be a valid reason. Merrick Garland was a conservative judge who was proposed by a Republican, for example. That is a good model for what I envision.

What are you saying? Of course I mentioned it. Several times. It's even in the TITLE!

If Republicans make a list composed solely of names like Rudy Giuliani or Sydney Powel.... they forfeit the opportunity.

So you're saying that Trump selecting justices from the list made by the Federalist Society was illegal. I disagree... I don't know of any law that would violate.

That would be great! If Republicans participate, you will see me front and center cheering for them.

However, it's not going to happen. Republicans have no interest in cleaning up anything. But hey! You can try! Start trying to convince your own leaders to do that.

For the moment, the only thing we have that is doable is this one.

 

There is NO constitutional duty that forces senators to vote to confirm a Justice who they know will be a partisan ideologue who ascends to the highest court to legislate. And reality has unequivocally proven that they were right.

I'll leave the solutions based on wishful thinking to you, and I'll deal with the one that is doable.

 

If you actually believe what you say about republicans- you have to have some kind of a condition that excludes what democrats do. Being color-blind and saying you don't see any blue issues... No.
I say a democratic majority would reject republican candidates because they have consistently done that in the past. Not just "we don't like him" but character assassinations, slander, allegations of all kinds
No hesitancy to drop all pretenses of being honest or fair. They don't even see a need to hide it anymore.

It's kind of like Pelosi sitting behind Trump in the State of the union address, frowning, never applauding regardless of the content, then tearing up her copy of the address openly for the benefit of the cameras. The primary thing wrong with everything he said was the person who said it. If Biden gave the same speech, she would stand, smile and applaud. You can't compromise with that attitude. No honor, total disregard for the office of both president and her own. Brought shame on her party and position, and felt no guilt at all. You may think that's appropriate, I think it's unprofessional to the point of childish. Of course, she was setting the example for others to follow. The same crap is like an echo in every dem speech. It would be nice to feel there was some trustworthy character somewhere- but if such aberrant conduct is allowed at all, it spreads like a disease, and it has to be countered in kind because it destroys the rules of honor and order. Such a congress can't be trusted to do anything in the genuine best interests of the people.

Yes, the word pack is in the title, so is the word "ethical" The expansion of the court is a separate issue- one that has to be accepted before appointments can be made. You didn't address it that way; you used a simple marketing ploy; get your foot in the door with a what-if- bait, and the bait would turn out to be the switch when it came time to deliver.

 

Your solution will never be implemented.

Always such a pleasure to exchange ideas with you.

 

Of course they would reject Republican candidates! I'm talking about independent candidates. No Republicans, no Democrats.

 

You try and rationalize it however you want. All people including judges have a belief system. They are not robots.

How justices are seated has a long history and precedent.

 

It's doable. Whether they will actually do it or not is a different matter. Obama did try this... and failed. He failed because Republicans controlled the Senate.

 

@spiritgide

Spiritguide is right. Your idea would open a bag of worms.

My idea is to give the minority party veto power over a nominee. This would force a president to nominate non-partisan, independent judges whose only loyalty was to the Constitution, and with a track record to back it up.

Think about the judges on the SC that you don’t like. If my idea, 75% for confirmation, was in place, at least some of them wouldn’t be there.

 

No idea what you're talking about. My proposal might work or not work, but in NEITHER case would it open any bag of worms.

There are a number of ideas that would be better than this. But they ALL require the willing participation of both political parties. And Republicans have NO intention of solving... anything.

Mine doesn't require that. ONE party willing to fix things is enough. Now... we KNOW that the GOP is not that one party. But maybe... just maybe... the Democratic Party is. As I have said: Obama tried. He only failed because Democrats were not controlling the Senate. So one wonders what would happen if they did.

 

As in.... a closet democrat. You have no way of controlling that; kind of a fairy tale what-if. Once people sell their honor, the trust they lose isn't coming back for a long time- and there's not a democrat who hasn't who's still a democrat.

 

What you want to avoid is court packing as routine.

Example: Democrats expand court to 11 to get power. When Republicans next hold power they expand it to 13, then 15 when the Democrats get in, then 17, 19, 21, 23, rinse and repeat.

This would make SCOTUS effectively an arm of whatever party controls the WH and Congress.

In any case you better hurry up with whatever plan you have, as I highly doubt you'll have the votes to do it post-midterms.

 

Packing the Supreme court is packing. There is no such thing as "ethically packing the supreme court". Its an oxymoron of a statement.