I’m talking about an imbalance in adhering to the norms; in taking advantage of violating standards in order to gain ground. But you know that, and are just making an argument you know is tendentious because you enjoy it. Have fun with your both-sidesism.
When most people talk about “balancing” the lower courts they do not mean “balance the number of broken rules”.
No, they’re talking about restoring the status quo ante, right? Taking seats that were stolen from Dems and restoring them to the control of Dems.
You’re just playing word games here. You get that there was an aggressor in this dispute, and you get that people are talking about how to redress the aggression, how to frame the conflict in those terms accurately. You just want to disagree.
No, I get that Republicans broke norms in order to reduce Democratic advantage. And there was basically no framing at all. They didn’t try very hard, if at all, to justify what they were going to do. They simply did it because they could. That’s why McConnell was successful: no fucks given.
Now, we are in a position to match norm breaking for norm breaking in order to restore Democratic advantage. And as I said above, I am fully in favor of it.
But instead, as always, we worry first about public perception. Democrats can’t make a move unless they win the “framing” battle. And for reasons I pointed out, our position on that front is weak. If I can count judges, then so can every talking head on TV. Then what? “Well, Anderson, it’s true we have many judges but we feel that America owes us even more judges. And it’s our turn to break the rules”. Good luck with that.
Which means I fear we will give up because we want to defend something that doesn’t need to be defended. It just needs to be done.
Let me expand on the concept of “framing” here a bit. Do not confuse “technically correct” or “semantically precise” with “honest”. In framing, we pay attention not just to technicalities and semantics but also to connotation, emotion, presentation. It’s possible to make a statement that is technically factually correct but misleading or deceptive in terms of emotion and connotation. Likewise, it’s possible to make a statement that may blur the edges of technical veracity but still be emotionally true.
To reduce the heat a bit, I will move away from the court example and use immigration as an example.
When we talk about immigrants in the US who lack valid legal status, it’s technically correct to refer to this group as “illegal immigrants” and also to refer to the group as “unauthorized immigrants” and AND ALSO correct to refer to the group as “undocumented immigrants”. All three descriptions are technically correct. They are illegal immigrants b/c they do not have valid legal status in the US. They are also unauthorized immigrants b/c they do not have authorization to live or work in the US. They are also undocumented immigrants b/c they do not have the documentation to demonstrate valid legal status.
So if all three descriptions are technically correct, why do people use different terms? B/C the terms vary immensely in terms of emotion and connotation.
The GOP uses “illegal immigrant” b/c they want to emphasize the alleged criminality, and they want to tar the group with an impression of being “bad people”. I try not to use this term not b/c it’s technically invalid but b/c it has nasty and hateful connotations.
Other folks use “undocumented immigrant” as a way of softening the allegation of criminality. However, I don’t particular care for this formulation as it implies a mere lack of paperwork rather than the reality that the paperwork doesn’t exist b/c the group is not legally entitled to that paper due to lack of legal authorization.
I tend to view “unauthorized immigrant” as the best term, but I’ll also use “undocumented immigrant” b/c the framing in both cases is better in two ways: 1)it’s a more humane, less hateful connotation, and 2)it’s more favorable for my preferred political positions.
Returning to the Supreme Court, it’s technically correct that “packing” as typically used applies both to the GOP and to the Dem proposals. But right now the GOP is NOT admitting that they have been packing and is focusing all their umbrage on potential Dem packing. The proper response is to flip that, for two reasons: 1)taking into account the moral issue of who was the initial aggressor/exploiter/rule-breaker, the GOP is the bad guy here and 2)it’s vastly more favorable to frame things the way I state from a political and media perspective.
Don’t get hung up on technical semantic precision - emotional connotations are a big part of meaning, and learning how to use that to communicate effectively for political purposes is what political framing is all about. And we Dems have to learn to do it - we’ve been getting our asses kicked in this arena for decades.
I disagree quite strongly with this characterization. The GOP framed what they were doing as politics as usual, typical, normal healthy exercise of political power, which it was decidedly NOT. That’s framing.
Maybe early in the Obama years, but I think by now they have given up any pretense of normality.
Republicans hobbled together a ridiculous frame to explain why they wouldn’t confirm Garland, and Graham told us to hold him to it. Then they blew it all up for Barrett, and Graham basically laughed at those who had taken him seriously.
“Frames are for suckers, and you’re a sucker if you think we believe what we say”. That’s their new frame, and it gets the job done. These days, there’s hardly any difference from no framing at all.
The reality is that if the electorate isn’t going to hold anyone accountable for naked power grabs, everyone should just do naked power grabs until they do.
I liked to echo what Sharpe said, Democrats are pretty consistently worse than Republican at framing/branding issues. Death tax vs estate tax, Pro-Life vs Pro-Choice (and it took a while before liberal adopted the Pro-choice label. Finally, look at how effective the Lincoln project ads are.
But I don’t want to debate that, I want to discuss how to frame expanding the SCOTUS to fifteen justices is good for the country.
First some court system facts.
The Supreme Court was expanded to 9 justices in 1869. In 1870 the population of the US was 38 million or one justice for every 4 million folks, with 330 million that number is 1 per 37 million.
The US is lot more litigious today than it was in 1870, and the justice system is extraordinarily congested in many areas. “Justice delayed is justice denied” is still true.
Many areas in the justice system are chronically short of judges, I know this is true of immigration system, I’m sure @Sharpe or the other lawyers can give us more examples.
The result is that person chance of having their case heard by the Supreme Court today is just a few percent compared to 150 years ago.
The US spends about $7 billion on the court system. As part of the Court Modernization act of 2021 (I’m sure somebody can come up with a clever acronym like CAREs or HEROs ), I’d say we increase spending on the court system by 50% which is only $11 billion. We hire not only more Supreme Court but more judges across the system, plus we increase spending on moving the court system to the 21st century. I think Covid has shown that is not always necessary for people to be in the room to communicate effectively.
From 1870-1920 it looks like the average age of a new justice was late 50s. The life expectancy for a male in 1880 was 18 years. The average tenure of Supreme Court looks to be about 15 years from 1870 until about Gerald Ford appointees. Since Ford it is looking like the average tenure a new judge is looking closer to 30 years.
My proposal and the details aren’t nearly as important as how we frame it,
- Increase the number of seats to 15 justice, this makes each justice responsible for one circuit, plus the special courts for bankruptcy, Patent, Immigration.
- Increasing funding for the overall court system, as I mentioned
- Introduce a constitutional amendment that changes the lifetime appointment of SCOTUS judges to a single 15-year term, after which the justices rotate off to an appellate court Require future changes to the number of seats to be approved by 2/3 vote of Congress
Framing.
- We need to spend more and modernize the courts in order to increase the speed the justice system works in the country, this not only good for our defendant in the criminal system but also in the civil system Stability and predictability is one of the hallmarks of the justice system. I’m sure one of the lawyers could wax eloquently on the importance of precedence and the frustration their clients feel with the speed of the system…
- Much of the work of the Supreme Court involves supervising the lower courts, more justices means less work for each justice, ergo faster speed. Now increasing the size court won’t mean a huge increase in the number of cases SCOTUS hear but it will help.
- 15-year terms and 15 justice means that each term a president will appoint 3-5 justice reliably instead of 0-3 under the current system. This makes each justice appointment less critical and will help de-politize the court.
- 15 justice allows for more diversity, right now our justice come from the same background Harvard or Yale, (Amy is the only exception) clerk for a judge, than work as prosecutor or law professor, become judge and are nominate in their late 40s or early 50s before they have much of track record as judge. A 15-year term allows President to nominate judges in the late 50s early 60s which has been the common until President Ford nominations
The details don’t matter as much as expanding the court is only one piece of the proposal. I want people in 2022 and 2024 to arguing about the merits of the constitutional amendment and not yelling about packing the court. You’ll also notice at no point did I mention Republicans at all, that was deliberate. This is not revenge against Republicans, it is to make the court system better.
No it isn’t. Actions are important. If “framing” makes acting easier, it may have value. If framing makes acting harder, it is counterproductive.
The Trump Administration didn’t spend a lot of effort “framing” the appointment of unqualified Federal Judges. Instead, it used that energy appointing them, and now the average American assumes that Trump’s judges are qualified, because they are already wearing black robes.
The Administration also used the same approach to successfully do a bunch of stuff that is clearly illegal, with minimal consequences. In some cases, it will take years to fix the things that Trump broke quickly. In some cases, the damage will never be fixed.
Democrats can learn a lot from that example. Appoint the Judges first, worry about “framing” later.
I agree with both you and Sharpe, and also think that framing doesn’t matter at all because no matter what the Democrats do it’s going to be demonized, so go all in anyway.
But +2 judges or expand to 15 judges both seem entirely defensible.
You are correct no matter what we do, the Republican will say the Democrats are packing the court so they can pass their radical socialist agenda .But framing does matter.
If the Democrats fall into the trap, of saying , we are only doing this because the Republicans cheated with Gorsuch and Barrett. We’ve lost.
Instead, the arguments needs be "we need court system that is faster, more efficient, and more diverse to better reflect 21st Century America. Republicans don’t care about better government they just want to destroy it. Republican don’t care how many years the appeal of poor black kid railroaded to accept plea for a crime he didn’t commit. In fact Republican think the best place for a black kid is in jail.
Nor do Republican donors, big corporations want to see a faster justice system. The slow speeds of our justice system is great for big companies, it force little folks to take unfair settlements.
If the debate is why do Republicans want to see innocent black kids languish in jail, that’s winning argument for Democrats.
It feels like framing matters… but when you propose to expand the court to 15 justices, it’s not going to matter how rational or logical it is, the GOP will just scream bloody murder anyway, because both sides know exactly what’s going on. It’s really appealing to this mythical ‘centrist’ that exists on paper but not in elections. If you’re risking framing it that way, then Fox is going to ask Kavanaugh if he thinks the SC needs more justices to handle their case load, and he’s going to very publicly say they don’t. You can’t control the narrative like that anymore - what do you do when half the SC, all conservatives, publicly denounce the expansion of the court as unnecessary? You’re leaning hard into rationality and being able to completely control the narrative, but that’s just not how it would play out, and you risk losing control of that narrative. The GOP electorate is out for blood and they don’t care anyway. They want the GOP to destroy the entire liberal project. How are you going to appease them?
I do feel like the +2 justices first is a very real “punishment” and necessary corrective, because the GOP really does have to be punished for their directly bad behavior, imo, withholding the nomination from Obama - and they all know it, as well. That stays within the bounds of the tit-for-tat politics. There’s just no way the Fox chattering heads are going along with an expansion to 15 unless the SC itself is the body asking for it.
Except it’s not a corrective. We’ve had a centrist judge (Kennedy) and a liberal judge (Ginsberg) both replaced by right-wing extremists. That’s a net +4 for conservatives. A corrective would be 4 new judges appointed by Biden. Also fucking Kavanaugh, who is a rapist, a rabid partisan, and a transparent idiot. We should get 5 new justices just for him.
Biden should immediately, on Jan 21, nominate Merrick Garland, and just be done with it. Call it unfinished business. Rip off the band-aid. I don’t see a backlash to righting so obvious a wrong. Then, feel free to start whatever dialogue is possible with members of the GOP who understand we are on a path to Mutually Assured Destruction.
Congress sets the number of Justices. Biden can’t do anything in January until they act.
Garland is off the table. I’m sure there are some 45 year-old rockstars out there who could be nominated for any additional spots.
He should nominate Obama and let their fucking heads explode.
If they add an “extra” justice (would rather call it something else), the number one question will be one of legitimacy, and nominating Garland is clearly the winner by that criteria.
Garland is 67 years old. I think that expanding the Court to add just one 67-yr-old guy to a lifetime appointment, knowing that you’re still down by 6-4 in votes and that the guy you just appointed will be lucky to last much more than a decade on the court, would be just about the peak of incompetent Democratic floundering.