Nightgaunt, I think your point has the most validity if narrowed to court reform. And to answer your question in that narrower sense, I think there’s a good chance that we will get an answer between now and 1/20/21. Specifically the post RBG 6-3 Court may well issue some very bad opinions and other rulings (such as certifying/decertifying cases for appeal) that will tell us how that Court is governing. That’s assuming we clear the electoral hurdles, etc.
My own view is that court reform/expansion is long overdue. The Supreme Court hears a lower and lower percentage of appealed cases every year: the country gets bigger, with more disputes but the Court size hasn’t changed in 150 years. Likewise the Circuits and to a lesser degree the District Courts (the Districts and Circuits have been reformed more recently than the Supreme Court but IMO still need an update for the 21st Century). Yes, the proximate motivator to do court reform/expansion in 2021 is to undo the abuse and exploitation of McConnell et al., but there is a legitimate underlying issue of workload, reforming the Circuits (9th Circuit needs to be at least 2 or 3 Circuits), and then adjusting the Supreme Court to properly reflect the Circuits (Right now we have 9 Justices for 11 Circuits + DC Circuit and Maritime? Circuit - we can easily make it a round 15 Circuits including the “special” circuits and then have 1 Justice for each Circuit as the assigned Justice for that circuit.)
And that’s all further going to be justified IMO by the behavior of the McConnell Court we are about to witness.
Get him all the ponies he needs, and a promise of a cabinet spot should he lose election.
I won’t be shocked if Doug Jones ends up AG as a consolation prize. His experience battling white supremacists should be worth something there.
Going for judicial and electoral reform may be the one thing moderates and leftists can agree on 100% after Trump.
I think if the Dems fail to kill the filibuster- AOC primaries Schumer, and Dem Senators who vote against it lose their primaries. The rage will be that intense- even the old black churchladies are getting radical now in my county.
This may be the outcome, but I don’t see it as a winning strategy. If you successfully primary someone like Tester or Manchin or Brown (not saying any or all would block structural reform, but as examples), you may get the satisfaction of seeing them lose… but you also lose those Senate seats. MT, WV and OH are not going to be voting in any AOC-adjacent Senators anytime soon. It might suck to have Senators we can’t always count on to do the right thing, but better that than have Senators we can always count on to do the wrong things - aka any GOP Senator.
Well, it’s only the habitability of the planet, so no biggie.
(Sorry for the snark, but this idea that climate policy is something that can be kicked down the road a bit longer has cost us over 30 years, and I have no patience with it anymore. As my wishes are unlikely to come true, all that remains is to howl into the void, which I will readily do.)
So long as absolute certainty that we will kill ourselves as a species with climate change doesn’t decrease your chances of voting blue each and every election, I recommend accepting that inevitability and saving your voice all the void-howling. You’ll need it to aggressively barter your children for desperately needed food and water in the Climatepocalypse of 2034.
You guys need to understand that what you’re up against are not the sharpest tools in the shed. They talk big but they know jack shit, they are utterly incompetent in every endevour, including trampling over the rule of the law. So all you need to do atm is simple: vote. No matter how the Senate turns out or what happens to the Supreme Court if the vote ends up being a big fat No to Trumpism, there isn’t anything they can do. And even if you don’t vote, they will still lose eventually but at the cost of lives. So far, the 2016 vote cost at least 60k American lives (which is the rough number of extra US Covid deaths when comparing them to the EU and adjusting for the population difference).
So just go and vote, make sure others vote too and everything that follows will be much easier.
We’re talking about Siphon9r’s scenario, right? I must be missing the relevance behind your references to the current Republican senate and vetoes…
Okay, maybe you guys are right. Maybe the Republicans will filibuster every proposal of a Democratic government, regardless of how popular it is, even if the Democrats trumpet to the heavens all the good things the GOP are stopping dead in the Senate. Maybe they have neither shame nor a fear of electoral reprisal. (Okay, we know they have no shame… but they don’t want votes?) And maybe the American people won’t punish them for it. If this is the case I think our democracy is effectively already dead. Because the legislation that is going to be required to prevent such a nihilistic GOP from torpedoing every single positive step–that is going to be required to, effectively, tip the scales to make Democrats unstoppable–will be seen as not only self-empowering partisan gamesmanship, but also as taking the focus off the kind of legislation that actually helps people… even if you explain to people that the goal is exactly to eventually get that stuff done.
Hmm. You’ll have to explain to me how the size of a court relates to the number of disputes that are filed, and why there necessarily should be parity between circuit courts and SCOTUS. I trust you’re right, but is there an argument you can make to the electorate why making all that happen is the thing they voted you in to do? Overdue or not, if people–and not just lawyers or pundits–don’t get why it’s urgent, then you’re squandering the people’s goodwill and I can’t imagine you keeping your majority at the midterms.
I am totally in agreement, but my sense is that besides putting us back in the Paris agreement, making big moves on climate change will require a bank of goodwill. Just being practical here. I’d love to be wrong.
There are two aspects. One is that right now each Circuit is assigned to a Justice (and since there are not enough Justices, some Justices get 2 Circuits) to assess review of the cases, assess whether to grant expedited review, emergency stays and so on. Right now the work load is not symmetrical due to the fact that the Circuits are widely varying in size/case load and that there are not enough Justices to match the # of Circuits.
The second aspect, which I guess I need to spell out, is that part of expanding the Supreme Court can involve (should involve IMO) changing from the current “automatic en banc” system to a Panel system. The Circuit courts already use a Panel system in which each appeal is a assigned to a panel of 3 Judges rather than the entire court sitting together “en banc”. If there is an appeal from a panel, the en banc court can hear if there is a majority of Judges for the Circuit who want to hear it. The vast majority of Circuit cases are heard by panels with only a small number going en banc. It allows the Judges to divide the work load and handle the large volume of cases that our modern society generates. There is no reason we cannot do this with the Supreme Court. A majority would still control, but many cases would be resolved at the panel level.
The second idea here may seem somewhat more radical, but as I said, it’s how we have the Circuits set up already. It’s worth discussing anyway.
Interesting that you phrase it this way Nightgaunt. You’re a smart guy, you’re pretty politically aware, and yet, it’s pretty telling that you don’t seem to be aware that this already happened once. And that’s pretty telling. Even you’re unaware that this happened for 6 years of the Obama administration. So what will make the Biden administration any different if they try the same thing again? Someone else who becomes more politically aware a few years down the line will say "hey, they should pass legislation that’s popular and good for the country, and if the Republicans obstruct it, they’ll get punished for it.
Ouch. That’s pretty harsh. I don’t think it’s that far gone yet. Yes, this already happened, the first part of your quote has already come true. They have neither shame nor a fear of electoral reprisal. And the American people didn’t punish them for it. But this time they shouldn’t try the same thing again and hope for a different outcome. They should instead get rid of the filibuster and pass the legislation instead.
From one point of view, you could say that passing the ACA is what lost the Democrats the house and senate in 2010. That was certainly what energized the right, even if it was based on lies. No doubt Fox News and right wing radio will do the same thing for other popular bills the Democrats pass, and they’ll get voted out for it again. But maybe like with the ACA, they’ll become popular over time. But that won’t be possible without getting rid of the filibuster.
Now, there is one thing that you might or might not be implying, I’m not sure, so I’ll just spell it out. There is one big difference between Obama and Biden. Biden is white. So I will grant you that it is possible that the Republicans might be willing to work with him and not just block everything, even though it worked so well for them under the Obama administration.
I had no idea about most of this stuff, Sharpe! (Obviously.) Very interesting.
If you feel like this is one of the most vital things the Dems could do when they take power, I’m curious how you would go about making the case to the American people. Seems pretty technical, and indirectly related to political outcomes.
Not totally unaware. I almost invoked the Obama administration in my last post, because I recognize the precedent there. Clearly the ACA at least became popular once it was in place. I know the GOP were generally obstructionist during that period. But I will admit to not having a very detailed knowledge of other broadly popular proposals the Dems put forward then that were never brought up for a vote.
I do know (or feel, at least) that the big negative issues that carried over from Bush to Obama–foreign wars and the economic crash–were not areas where Obama showed himself dramatically more enlightened than the Republicans. At least from the perspective of the class of people who fight in those wars and who don’t own a financial instrument more elevated than a checking account.
I admire the Democrats pushing for health care reform because it was (and is) clearly needed. But they also ended up, as I recall, pulling procedural shenanigans to get it passed. Don’t get me wrong–I understand that capitulating to intransigence empowers the opposition in certain ways. But so does twisting the rules to squeak something through.
I get that the Republicans are the villains here. I get that their obstructionism is unprecedented. I just think that the only way they can be successful is to play the game in a way that makes the Republicans pay for it, somehow. The fight to change the rules of the game is going to hurt the Dems, even if it gets an important bill or two through or rebalances the court.
I am not a political strategist. So if I’m wrong, I’m wrong. And if I’m right, I’m not saying I can tell you what the exact right moves would be. Here’s my closest thing I have to a suggestion: Figure out some policies that directly and visibly benefit the Obama/Trump voter. I don’t care what you think of those people. But they are the ones who are groping for substantive change, however wildly. They’re probably among those most hurt by the COVID fallout. And they’re the ones that both sides need to capture to win elections. My instinct says that these folks are not going to rally behind court reform or senate rules changes. Why would they?
I’m posing this for discussion, guys. I don’t really know. It’s just what my gut tells me. Please continue to point out how I’m wrong–I want to hear it!
I would package it as part of an overall “reform” agenda: voting rights reform, tax reform, court reform, criminal justice reform, and also Green New Deal and Infrastructure Investment as part of a big overall reform concept. Biden already has a slogan of “Build Back Better” and reforming/expanding/modernizing the court system would fit right in.
As to the court part of the overall concept, I wouldn’t do this as just pure “Supreme Court Expansion” but would have a whole package of court reform: Supreme Court expansion and modernization, Circuit Court expansion and modernization, District Court expansion and modernization, improved broadband access for courts and people using courts via internet, video or telephone, etc. etc.
This would sit nicely alongside voting rights reform, for example, as well some Elizabeth Warren style political/lobbying reform as an overall “clean up/improve the system” type of reform.
Then in the big picture, I would also want health care reform/public option, tax reform, environmental reform, infrastructure investment, Green New Deal energy investment. That’s an overall agenda and court reform fits quite nicely into that agenda.
I think a fight to change the rules might help the Dems electorally. They’d lose moderates, but their base and the left would both turn out more, the left especially, as they’d be happy with the Dems fighting (and the Dems would inevitably tilt to the left in such a scenario the same way the republicans tilted right as they got radicalized)
The odds of a civil war increase, but I don’t think the right would be disciplined or willing to coup. Fighiting is hard work, and when you’re fairly well off like most Republicans are , you got enough to lose that you aren’t willing to fight. Plenty of lone wolf terrorists, few private armies.
Honestly, the way to make them pay is to change the rules, do electoral reform hard, and then go after the folks who broke the law on the Republican side mercilessly. The problem is when do you put the hammer down, and even if you kill off the Republican party somehow- would be centrists and leftists be trusted not to use it on each other next?
The senate is so unrepresentative - and worse, insensitive to changes in public opinion in most of the country - that even without the filibuster things are pretty broken.
The court is likely to have 5 members who come across not merely as conservative justices but as actively partisan, ideological allies of the GOP. Their influence will be less pervasive than that of a senate filibuster but there’s a huge danger that they end up going specifically after the things a dem government might do to fix the democracy.
I think the dems are going to have to move carefully but decisively. They have to start fixing these issues, but at the same time they can’t get into a scenario where both parties are seen to care more about the rules and power than actually governing.
First of all, to the extent the ACA was unpopular while the Dems were trying to pass it, it’s because the Republicans decided to make it unpopular by telling lies about it and refusing to cooperate with the process. Dems in the Senate held 31 meetings over four months with a group of Republicans to develop a proposal that was supported by all four living former Republican Senate majority leaders. Despite that pedigree, McConnell decided that the Senate GOP would not support it.
Not really. The ACA passed the Senate with 60 votes. The House had proposed changes but by then the Dem Senate Majority had fallen to 59. So the House passed the Senate bill as it stood, then drafted an amending bill containing budget-related changes which could be passed by the Senate through reconciliation. Of course the Republicans called this ‘shenanigans’, but they’re inveterate liars.
It’s easy to find things that died in McConnell’s Senate during the Obama era. Here are a few:
A second stimulus act (2009)
The Clean Energy and Security Act, a carbon cap-and-trade proposal (2009)
The DREAM Act (2010)
Reinstate the assault weapons ban (2013)
Universal gun background checks (2013)
I suspect if the ACA is struck down, the Dem response should be to lower the Medicare age to 0, and see if the Supreme Court wants to take healthcare away from seniors. If that happens, Republicans would lose the vote as every senior turns on them, or enough of them die that young people win the vote that way.
Wow, it’s disheartening to hear that this is what you recall from the passage of the ACA, not the fact that Republicans didn’t even try to compromise in any way or bring any of their own ideas to the table, and only pretended to do so in order to delay the passage of the bill enough so that the filibuster proof majority in the Senate would be gone.
Just curious, what was your primary news sources during that time? The major networks, NPR, CNN, PBS, etc?
On the one hand you say that it’s good that they passed much needed health care reform, but at the same time, they shouldn’t have used reconcilliation at the end? Do you feel similarly about McConnell using reconciliation to almost pass the repeal of the ACA? And the passage of the tax bill? Do you realize that the alternative to not using reconciliation at the end was not a compromise bill, but no reform passage at all? I don’t often get mad in the P&R forums, but this idea that getting the bill passed that has been the most helpful piece of legislation passed for my life personally is being viewed as not ideal compared to not getting it passed, not helping millions of people, but going about things in “the right way”, hoping some nebulous “public will make them pay” ideal that clearly didn’t happen. Arrrrrgh. I need to step away.
