37 Comments
User's avatar
C.C. 95's avatar
2hEdited

We have had the same rules since the dawn of the country. When Democrats lose - they think the rules should be changed so they can win. Literally, alter EVERYTHING so they can win. They are delusional, poor losers. The problem is not the system- the problem is the their message and ideology. They are getting rejected, and can't deal with the reality of why.

Jim Shilander's avatar

Some of those rules, like the electoral college, are bad

The Radical Individualist's avatar

Why?

We seem to have all forgotten that the federal government is supposed to be under full control of the states, not the people, and certainly not political parties. All elections to federal office run thru individual states. There is no national popular election for anyone, and that was on purpose.

Political parties have no authority whatsoever.

While you're at it, remember that independents are by far the biggest majority in America, far exceeding either party.

These are things that the MSM media prefer that you not think about, so they never bring it up. I bring it up.

Jim Shilander's avatar

How is that a case for using a system borrowed from the Holy Roman Empire?

Jim Shilander's avatar

Was about to ask you the same

The Radical Individualist's avatar

My point is that many people do not know what our federal government is, and why it is that way.

You seem to not realize that United States is plural. We are not one country, and certainly there is no mandate that says these fifty countries should be united by political parties.

I have explained all this. You have not explained why you have a problem with it.

Matthew Eisley's avatar

That's not true of the 60-vote cloture rule to end filibusters, which the Senate adopted in 1917 at the urging of Democratic President Woodrow Wilson. It's a century-old Senate rule, not part of the Constitution or an original feature of our government.

https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate

Greg's avatar

Correct. But what does that have to do with C.C. 95's point?

Matthew Eisley's avatar

Democrats are mad about the cloture rule, as the article noted. C.C 95 commented: "We have had the same rules since the dawn of the country." That’s not true of cloture.

FWIW, I'm a political independent.

Greg's avatar

Ah, fair point. I saw the filibuster/cloture notion as separate from the court discussion and so did not read C.C.'s comment as being encyclopedic so much as thematic. We've had plenty of constitutional, statutory, and rule changes since 1789, but as a constitutional republic, our framework has been remarkably stable for a long time, even when severely tested during and after the Civil War. To C.C.'s point, it is remarkable how Dems want to change the rules when they don't win. 50+ years of a "liberal"-leaning SCOTUS wasn't enough. They seem to want it to be permanent.

And to the original author's point about being cautious in changing the rules, it wasn't so long ago that many came to regret Harry Reid's decision to nuke the filibuster for non-SCOTUS nominees.

Not sure we need to be declaring party affiliation, but I'm not even an independent. I'm a [small l] libertarian. ;)

Uhh Greg's avatar

The judicial filibuster controversy did not start with Harry Reid. Senate Republican leadership invented the term "nuclear option" in 2003, threatening that if Democrats did not compromise on confirmation of Bush's appointees, that they would reduce the threshold to 50. And that threat caused a faction of moderate/conservative Democrats to strike a compromise that generally cleared the path for most of Bush's appointees.

This shows that making threats can produce material results. And it encourages current Democrats to at least threaten packing, in the hope that it would bring the GOP to the negotiating table.

Also, even if Reid hadn't nuked the filibuster, I refuse to believe that in 2016, McConnell would have let Scalia's seat go unfilled through the majority of Trump's presidency. Nor would conservatives accepted a Harriet Miers in the position. They would have absolutely nuked the filibuster, just as they did for the entire executive branch, even though Reid never did that.

Pemulis_DMZ's avatar

So Democrats' proposed solution to their perception of the politicization of the SC is to further politicize the SC. Their endless "the sky is falling" rhetoric makes it impossible for them to see more than one step ahead.

"Confirmation hearings for new justices carry extremely high stakes and only serve to worsen tensions between the parties..." And if we go with term limits, we'll be treated to these tensions endlessly. It was the Democrats' blatant weaponization of an objectively substanceless and unverifiable sexual assault alegation against Kavanaugh that began my turn away from the Left in 2018. They've only gone further and further off the deep end since then.

Uhh Greg's avatar

Isn't there something to the case that they should at least be making the threats? Republican threats to nuke the filibuster in 2003-2004 provoked concessions by Senate Democrats.

What should Democrats do in a world where Roberts genuinely is ruling by fiat? If more Alito dissents started becoming majority opinions? Packing skeptics struggle to define a red line, because doing so would risk admitting that Roberts already crossed it in Callais, Trump v. US, the Insurrection Case, etc.

Matthew Eisley's avatar

"Some Democrats have argued that this is a commonsense measure designed to align the number of seats on the Court with the number of district courts."

Did you mean the number of federal appeals courts? There are 13 of those, as opposed to 94 federal district courts.

Michael Baharaeen's avatar

Thanks for catching that -- just updated the piece.

Bob's avatar

This is so self-evidently a fig leaf for a partisan court packing scheme that it is difficult for me to believe anyone can say it with a straight face. If this is the rationale, can we do it today and give Trump four more appointments? If we had a single honest journalist in this country that a Democrat would agree to be interviewed by, this would be the obvious first question.

Pemulis_DMZ's avatar

They'll just move on to citing the 94 as justification for the next expansion once the 13-person court swings to the Right

jeff's avatar

While I understand the ramifications of expanding the Supreme Court, the current court has so routinely chosen to ignore stare decisis or precedence and endorse openly political positions, as well as open corruption in the cases of Alioto and Thomas, that extreme remedies are required.

The greater danger to Democrats is cementing their reputation as the party unable to serve their constituents effectively, and thus losing the trust of their own base, which is where they are currently.

Would I, as a liberal independent, accept another measure of effectiveness? Certainly, Medicare for All, raising the earnings cap on Social Security taxes to ensure the solvency of the program, or cutting wasteful defense spending and procurement would be other examples of achievements.

What the party cannot continue to endure though is the reputation a vote for their politicians is a vote for nothing getting done. Uselessness is worse than over reaching.

One needs to be careful that moderation does not mean staying forever in the middle of the road among dead armadillos, as John Hightower, a long ago Democratic party stalwart, once put it. Moderation must mean effective yet careful change, evaluated for improvement as time goes on.

There is a crucial difference between ineffective rule and necessary and cautious change. The latter is vital for success, the former where the party currently exists.

Uhh Greg's avatar

There's also the risk that passivity will provoke more norm-breaking by Republicans. Tit-for-tat is stereotyped as leading to constant escalation. But, in actual game theory, it's the optimal paradigm for competitive environments. https://en.wikipedia.org/wiki/Tit_for_tat

C.C. 95's avatar
1hEdited

The amazing thing is that- SCOTUS should be, by its very nature- completely partisan-free. They have ONE job and one job only: Is it Constitutional? That is not about ideology, that is about adherence to the written law.

MLisa's avatar

Nine people in black robes is enough! I don't need nor want any more unelected officials making dramatic changes that affect my life. The problem is that Congress doesn't want to do their damn job!....and they want SCOTUS decisions to be the law of the land (NOT their job!). Congress is the branch of government that is responsible for making law, Senators are responsible for ensuring that their state is adequately represented and SCOTUS is there to make sure that the bozos play nice with each other and do their job.

Maybe we should spend less time teaching kids how to use a computer to game stupid tests in ELA and math and give them a little bit of social studies, history and civics. No one seems to remember/understand the how and why our government was designed/strucured (from the beginning) so that we could avoid all this nonsense.

ban nock's avatar

Courts are a symptom, not the disease, and often enough justices break ranks and vote with the other team. The disease is ultra partisanship in defence of power, mostly dictated by access to money. That's not to say that the system can't be overcome.

Trump did it in 16, by running against his own party. Do you remember how much the Republicans hated him? With each new primary they supported someone, anyone, who could put a stop to "never touch social security, Iraq was a huge mistake, tariffs, and immigration". All it would take for Democrats would be to have someone run whom both factions of the Brahmin left hated.

I'd vote third party if need be.

Zac Hill's avatar

Central to this argument, which I support, is the idea that restoring the trust and legitimacy of America’s governing institutions is a core imperative sitting *upstream* of any given political objective. And that is vital to internalize, because there is so often a tradeoff between trust and temporary gains.

Richard's avatar

There is a problem with the court system in this country. Packing the court is not the right solution but some assertion of democratic (small d) and republican (small r) control over the judiciary is needed. There are 677 dictators in black robes that are authorized. Actually there are more because of judges on senior status-a perk that no one else in government has. Add in appeals court judges, Justices, territorial, judges and who knows what else. These dictators are mostly on the Left but not entirely. My suggestion for reform involves removing perks and status. No more all rise, Your Honor, and robes. No more endless delays in procedures for the convenience of the judges. No more absolute immunity for decisions. A solid definition of what "good behavior" means and who can enforce it. I would suggest that bad behavior involves nullification of a Supreme Court decision and that all three branches have enforcement power. It is time to revisit Marbury v Madison. Abolish the DC circuit and restrict the DC district court to normal law enforcement issues. The latter could be restricted by making DC limited to the Capitol, Supreme Court building and White House and returning the rest to Maryland. District Courts and Appeals Courts should be stripped of the power to issue national injunctions and certain issues placed beyond the purview of any court. All this is doable withing the confines of the Constitution.

Greg's avatar

So much constructive thought and sound advice. Are any Dems listening? [And for the long haul, any Reps as well?)

Uhh Greg's avatar

There are any number of Senate Democrats who, for better or worse, have established firm positions against packing or even nuking the filibuster.

HP's avatar

In this case, there’s no reason to think that Democrats could expand the court to 13 and that would be the end of the fight. What is to stop Republicans from adding an additional four seats and reclaiming a conservative majority the next time they have power?

Good point. So, instead of "packing the court" how about package it as part of expanding the entire federal judiciary to meet the demands of today's population/case load. That hasn't been done since Carter. If nothing else, that makes it harder to attack as "court packing", which is stupid for all of your reasons.

Michael Baharaeen's avatar

I'm not opposed to adding more judges/justices so long as the mechanism for doing so isn't designed to give one party a clear advantage over the other. That's why I'm open to, e.g., the appellate rotation idea -- as I understand it, it would temporarily elevate X number of judges from the lower courts on a randomized basis to help rule on cases before the Supreme Court. So it technically adds to the total count, but not in a way that is designed to further politicize things (which is what I think of when I hear the term "packing").

HP's avatar

Forget court packing, think "expanding the judiciary to meet the demands of the 21st C"

Last time district and circuit courts were expanded was under Carter. The population has nearly doubled since then, and the case load has as well. It should be an easy sell, so of course the Dems won't even think of it, much less manage to sell it.

Uhh Greg's avatar

If Democrats do not respond to constant norm-breaking by Republicans, it will inevitably lead to more norm-breaking. At this point, if we're saying that Democrats can only match Republican transgressions, that would mean explicitly political prosecutions, politicization of the military and law enforcement, stealing billions from the Treasury, widespread destruction of federal property, and attempts to overturn the results of free and fair elections. I would prefer that Democrats find other ways to retaliate, even if others may refer to that as "escalation". Arresting John Thune on a sketchy theory that he abetted corruption arguably doesn't constitute "escalation" from what Trump has done already. But most would say it's a worse development than court packing would be.

Ed's avatar

What makes you believe that a party willing to pack the court and add states solely to create political advantage wouldn't use that advantage to ensure the GOP never won power again?

These aren't new ideas, and the third world countries that implement them always ended up as totalitarian tyrannies.

Once totalitarian power is consolidated the only way out is by gunpoint. Elections no longer count.

The GOP may be pikers, but they do somewhat respect the constitution and rule of law. It wouldn't be very hard to dems to advocate rational policies and destroy them in elections, though.

Instead, they refuse to change direction with the maturity of three year olds, and try to change the rules when they inevitably lose.

The GOP may be doing a D minus job, but desperate dem rhetoric is trending toward sedition and represents a clear and present danger to the republic.

Because of that, I'll keep holding my nose and voting GOP because a bad choice is better than a fatal one. I don't believe we should discount the level of anarchy growing in Blue cities and states or mainline dem submission to insane DSA policies due to personal fear, which also says everything you need to know about the DSA.

John Wygertz's avatar

Like you, I prefer the option of persuasion. Unfortunately, the increasing influence of the DSA suggests that the opposite will continue to happen.

Bob Griendling's avatar

The Supreme Court is a blatantly political body. To suggest we need less political influence over it is naive.

I've followed Ruy for more than 20 years, since back when he was publishing the Democratic Strategist. In some case, he makes sense, such as working harder to listen to and embrace constituencies that have abandon Dems, but increasing he is sounding like he wants the Democratic party to become Republican-lite, abandon civil rights, apologize for its principles and be grateful for crumbs.

SCOTUS needs major reforms. Trump and the far right didn't proceed cautiously. They sought power and used it ruthlessly when they achieved it, protected by gerrymandering.

Dems need to at the very least reform the filibuster once in power and SCOTUS. If the latter means expanding it in the short-term then so be it. Maybe if the filibuster could only be invoked if senators representing 45% of the population voted to withhold support of a measure, we'd get more legislation passed. SCOTUS term limits and other reform measures are desperately needed.

What's most required are Democrats willing to fight for their principles and wield power when they have it. Identity politics and nonsense about trans women in women's sports at the amateur level are ridiculous. But leveling the playing field for working Americans will require drastic measures and the rules and procedures to accomplish them.

We need to prove that government works. That means everyone has a voice but not everyone has a veto. Legislation is often stymied by rules, regulations and court proceedings that gives a tiny majority a veto of initiatives that a huge majority of Americans want.

Set an agenda for reforming government first, then talk about the policies we want to put in place and then how we'll tax the rich to achieve them. But for God's sake, stopping being afraid of your own shadow.

ban nock's avatar

"Taxing the rich" means people like you. What do you suggest?

Ruy didn't write this one, it was his buddy Baharaeen, but I'd think Ruy is on board with most of it, sounds ok to me too, Democrats used to sound like this a lot.

Bob Griendling's avatar

Yes, people like me. But first, tell voters what you’re going to do with the extra revenue. For example, by several estimates, raising income taxes 10% on people earning more than $1 million would raise enough to fund universal child care. But you can raise taxes on people making less (down to perhaps $200,000 by much small percentages) and raise significant funds that could pay for a lot of initiatives that American favor. Voters don’t trust government to use the funds wisely. That it could is the first hurdle. But be specific. Remember the Contract with America? Admittedly, one plank was to lower taxes, but Gingrich wasn’t afraid to campaign on exactly what he would do.