JoshL
6072
I guess your point is proven by the fact that McConnell has that veto now. It isn’t good.
That’s entirely possible but I’d consider it less likely than McConnell’s current actions, as SCOTUS doesn’t have a voter base to answer to and is therefore less likely to be so irrationally partisan and reactionary. Keep in mind, I’m not saying Buttigieg has a great idea, just explaining how it would work in his mind.
As JoshL mentioned, a major barrier regardless of whomever is elected or whatever is done with the court is how the process currently depends upon the Senate behaving like grown-ups, which they most certainly have not. But that doesn’t mean attempts shouldn’t be made.
I agree attempts should be made, but not this attempt. It’s a bad idea. Imagine what e.g. Kavanaugh or Alito or perhaps Thomas would do with this veto. Imagine what Scalia would have done with it.
We are stuck with the problem of someone like McConnell and his ilk in the Senate. I don’t know how we can fix that, but let’s create the some problem on the court is not an obvious solution.
On the other hand, it’s hard to believe Pete can’t see that himself, in which case this is more empty centrist signaling. That seems especially likely since he chose to name-drop Anthony Kennedy as a Justice he approves of.
But what else can he suggest? The only workaround to the Senate I can see (aside from enough voters in Kentucky gaining a fully functional brain) would be to appoint by fiat and that’s just a recipe for disaster, imho.
But there’s more than one Circuit Court, so there would be more than one precedent, and really, the system operates for long periods of time with no SC ruling on issues where lower courts have disagreed. Bear in mind that I’m proposing 8 votes in a context where there would be 12 justices, but it could also be 7 votes, just something where there’s not a bear-minimum majority. I think it would be better to have no SC ruling than a whole string of 5-4 rulings.
He won’t - future and past presidents will. And the need for the other 5 justices to be confirmed by the sitting justices would restrain both him and future presidents from appointing unqualified partisan hacks. This system would clearly make the court more centrist and would lead to a court that changed more because of developments in legal theory than because of populist political movements.
So, again, the goal is good but the execution has flaws. Your specific complaint here could be addressed by requiring 7 votes instead of 10. But to be honest, given that the Senate Majority Leader currently has a veto (and would continue to) and the US President selects the nominees, giving even more people vetoes would be a good thing because it would prevent the life-time appointment of another Kavanaugh.
I mean, even just giving the minority leader an explicit veto power over “advice and consent” in the senate would be a good way to restrain this shit.
ShivaX
6077
Yeah, I don’t trust Kavanaugh to do the right thing. The rest of them? Probably? Though Alito is always suspect in anything requiring any sort of moral test in my book. Thomas is a wild card, but he might also sleep through the whole process.
I’m not sure the goal is good. He wants some kind of ideological balance. Why would that be good? Why would I want that? Ideology isn’t like football teams.
Sure, it’s a tough problem, but solutions that can’t work aren’t worth proposing. It’s as if he said he would tackle climate change by developing a perpetual motion machine.
In any even, the Court has always had an ideological lean and always will. The current ‘problem’ with the Court is actually a problem with the Senate, and the solution there is to win control of the Senate and then use its power to advance our own ideology.
Because this is a democracy? Because people who don’t agree with you ideologically should still have a voice? Because you almost certainly hold opinions that are currently unrepresented by the ideologically unbalanced court? Because even in a world where your preferred Presidential candidate always won and always got to appoint the most extreme justices who agreed with positions they campaigned on, you could easily be facing a court packed with ideologues you no longer like?
I think “can’t” is a little strong, but you do certainly highlight a problem with it.
Like I said - Buttigieg’s idea isn’t the best in my mind. I personally think enlarging the court is for the better; quicker turnover, more voices, less political consideration on any given nominee. I’d probably choose to stagger additional picks by 2 for each Presidential term up to some nebulous odd number decided by people smarter than me, allowing the voters to keep the scope of these choices in mind as they cast their ballots.
I don’t see a way to get around advise and consent. However, I’d like some thought to be given to implementing a law whereas intentionally withholding votes on nominees would be seen as dereliction of duty and have the consequences of that Congressman’s vote and role no longer considered for the issue at hand (it would pass to the next in line, and in the case it was a Republican they’d lose one from their majority; if they kept it up, they’d eventually lose their majority and the Dems would get to approve the nominee).
But passing such laws would require the Dems to hold the both houses and the Presidency to pull off. That’s also why people bring up ideas which are more palatable to moderates; not only do we need people to attempt changes, but we need them to pass and then to last.
Let’s say the Dems manage to win the Senate and hold the House (as well as sending His Orangeness packing), we’d still want these laws to last and not get reversed with the next wave of arch conservatism. Because as much as I’d like to say we’ll defeat this shit forever, history has shown to be more of a tide which ebbs and flows than an eternal current flowing in one direction. So I’d like changes which will be resilient to the electorate’s whims.
Should we have Nazi justices on the court because this is a democracy and Nazis should still have a voice? I think the answer is ‘no’. Some ideologies are bad! People exercise their ‘voice’ by voting, and when they win, they should try to carry out their agenda; which in my view means appointing justices who are ideologically aligned with that agenda, not ones who are opposed to it. After all, we don’t say that a President should appoint his partisan opponents to cabinet positions, to give the other side a voice.
CraigM
6083
Funny you should mention that, but historically we see at least some of that. Donnie? Only 3 if you exclude Flynn and Kushner. Obama by comparison had 18 cabinet level appointees of the opposite party, and Bush 2 14-16. In fact thats about the norm, somewhere between 12-20.
We actually used to think this was a good thing. Again, no one is suggesting that Democratic presidents should appoint conservative justices or that presidents in general should or ever would appoint someone they disagreed with. The purpose is to constrain future presidents from appointing nut jobs, since Congress is clearly unable to do that.
We never did, really, and it was never much of a thing in any event. Lincoln famously did it, but it was because he was a wartime President and was trying to unilaterally create a government of national unity. But if a Dem candidate wins the Presidency and then appoints a global warming denier to head the EPA, I want my damned money back, and I suspect you do, too. Why is the Court different?
Pete is suggesting precisely that. Or he’s suggesting something worse: That he agrees with someone like Kennedy.
That seems like a lot. There are only ~23 cabinet-level positions, right?
Edit:
During Obama’s presidency, four Republicans served in Obama’s Cabinet: Ray Lahood as Secretary of Transportation, Robert McDonald as Secretary of Veteran’s Affairs, and Gates and Chuck Hagel as Secretaries of Defense.
Better win the Presidency every time, then, if you want the President to continue to appoint the most radical person they can.
He isn’t suggesting that Kennedy would be his preferred choice, he’s suggesting that he would prefer a world where everyone was forced to pick within the Kennedy-Souter range, rather than the Scalia-Ginsburg range. I’m sure he would prefer even more to have a world where everyone picked Ginsburg, but if that’s what you think his position should be, then who is the one talking about fantasy?
Oh, yes, that’s exactly what I’m suggesting, and Merrick Garland is a well-known bomb-throwing red.
No, he’s suggesting that we pretend that is what the world is like, and act on that pretense, and hope the other side does the same. They won’t.
Timex
6089
Some folks don’t mind tyranny, as long as they get to be the tyrant.
ShivaX
6090
It’s Hobbes vs Locke. Sadly it’s looking like Hobbes was right.
Matt_W
6091
I feel like a system where the majority gets to enact its policies, but is still subject to some checks by significant minorities is not quite the definition of tyranny. I’m all in favor of diluting the power of faction in the court by increasing the number of justices. But I’m most definitely not in favor of doing it by demanding some vague notion of ideological moderation or by giving any kind of veto power to existing members of the court.
