The courts are literally the only norm setting institution in which conservatives have power. Literally every other institution that is in the business of truth and value defining and is not waning into irrelevance (religion) is not just to the left, but overwhelmingly far to the left.
Universities and Colleges
Publishing, Hollywood, and most of the arts
Most mainstream news organizations
Giant tech information dissemination companies
Government bureaucracy at nearly every level except for small municipalities and rural counties
I get why conservatives do what they do with the courts. It's a holding action against the power of all these other institutions being used against them. And I also get why progressives get their knickers in such a twist about it. They understand that the courts are the only thing keeping them from using the power of these institutions to impose their vision on the country, come hell or high water or whatever non progressives think.
I consider myself a moderate, but I am quite pleased that the conservatives are gumming up the works. Checks and balances are protecting us against precisely who they were designed to protect us against: groups who think they have a righteous mandate to impose their vision on everybody else. It's also why the conservatives themselves have failed to impose their lasting unadulterated vision on the country, despite being in power.
11
I agree completely. This is an existential issue that Republicans have been pursuing for decades - partisan control of the SCOTUS. THAT would destroy this country.
Democrats, when they regain power in the Senate and WH, SHOULD pack the Court to achieve equity, not imbalance. That would be the fair thing to do, but even the implication is disgusting. We know that Republicans have absolutely no respect for the rule of law or fairness, but Democrats can counter that without sinking to their subterranean lack of principle.
DO WHATEVER IS NECESSARY TO ESTABLISH A LEVEL PLAYING FIELD and then maintain it. We can only hope that Trumpians will eventually see how they have screwed up this country and come to the table with reason instead of the rabid treason that they now exhibit.
Were this a Republican comment, the word "equitable" would not appear, nor would "fair".
18
Democrats aren't good at returning favors and are atrocious at playing hardball. We need to instead focus on winning elections, getting supermajorities in both houses and seeking to amend the Constitution to survive periods when all levers of government are oddly, given what Republicans do with control, not in their possession. One of the amendments absolutely needs to be revoking lifetime appointments to the court and justices are to be on the ballot and voted into office by popular vote. I know Republicans would be outraged by such a suggestion, "it'll inject politics into the court!!!" Like it isn't injected right now???
6
God speed the day when the Left is rightfully defeated by voters who demand that all people have a right to life. That means, of course, that another Supreme Court justice sits on the High Court who will vote for the majority and finally articulate that Roe v. Wade was wrong. And no more Federal funding to organizations that perform or advocate baby killing.
3
Can't wait until AI replaces human justices. Maybe we'll see some objectivity. Bonus, no baggage.
2
This is pretty disgusting. I'm beginning to believe more and more than we are heading towards an irreparable fracturing of society that will end in much pain.
8
Don't expand the Supreme Court, contract it - by two justices. Bye bye Gorsuch, who occupies a stolen seat, and Kavanaugh, a serial sexual miscreant.
9
So now we are advocating throwing out the constitution because you don't like judicial appointments? Maybe you should pass a law saying only Democrat Presidents can appoint judges.
17
Your column of today does say nothing new..
1
Mad about those who are unhappy about great justices Kavanaugh and Gorsuch. Even the liberal justice Rith Bader Ginsburg who has had a year to work with Kavanaugh and Gorsuch described the 2 as decent and smart. Lifetime appointments should be made careful ly with thorough vetting such as the one Kavanaugh had.
I do think that the appointment of justices should be limited to 10 years or death which ever comes first. Trerm limits will allow for a more rapid turnover. Also a president should have limit on how many justices he or she can nominate.
7
Democrats could pack the courts. Increase the Supreme Court to offset the stolen seat, and to offset the perjurer known as Kavanaugh. This would enrage the right and increase their voter turnout in the mid-term elections, possibly turning the House.
I would like to see broader changes made to the Supreme Court, yes, increase the size of the court, and hopefully add justices with more diverse background and educations. I would like to see term limits of no more than 20 years (or whatever would work to ensure that absent resignations or death) that each president would get to make an appointment during her term. When the Supreme Court was imagined, life expectancy was much less, so a justice did not serve for three or four decades or more. I think such a time span makes the justices insular, and they lose touch with how their decisions affect people.
Further, something does need to be done to mitigate minority-majority rule. If the Democrats do take the House, Senate and Presidency, they should increase the size of the House of Representatives, which hasn't changed in about 100 years even as the population has grown and the balance has become unequal with the larger states underrepresented. Adding more seats to the House would help balance out the inherent unequalness of the Electoral College. They could also vote a Constitutional Amendment to do away with the Electoral College and have a straight up national election for President.
9
"Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity."
That statement is laughably naive (and absurd).
As to the "solution" Bouie proposes, you don't threaten to do something radical when you don't have the power to do it and that "solution" is also available to the thoroughly corrupt opposition party. Once a few Democrats have suggested packing the Court, we can count on McConnell to use those suggestions to legitimize his own decision to pack the Court, should he decide to do so. And he (or his successor) would certainly do it if he needs to.
If the Democrats decide to expand the number of SCOTUS justices, rest assured that the next time the Republicans can retaliate, they will. The result would likely be the irrevocable delegitimization of the Supreme Court.
Trump and the GOP have thorough!y politicized the Court. No moderately intelligent person with a shred of integrity could argue that the Republican's treatment of judicial nominations is in the long term interest of this country, unless that person favors the abandonment of democracy and corrupt governance.
The Democrats, and anyone who favors sound, constitutional government have to play the long game. It will take many years to undo the damage right wingers are doing to this country and countless people will suffer. But unless a significant majority of American voters is prepared to permanently reject the GOP, it won't matter what Democrats do.
4
It is striking that discussion of expanding the Supreme Court always takes place in the context of "packing" the court. There are other advantages to a larger court. A larger court would be harder to pack due to more frequent vacancies. It could also encompass a greater diversity of legal approaches. The Court can certainly benefit from the participation of the products of more than two law schools.
9
The institutions that we've been born into are showing their age and fractures. As a new lived experience becomes the majority experience, i.e. the struggling Xer and Millennial experience to live well and comfortably, replaces the older experience of those currently in power huge transitions will take hold. If allowed to.
This is why the prevent 'defense' of a republican Senate at holding a seat absent for several months was so critical. In the end it has assured a stopgap against the demographic writing on the walls.
No matter how it is cut there is no longer a SCOTUS that can ever have the faith of the people it serves. The blocking of Merrick Garland's nomination was the first step, but the blatant grooming of judges for specific rulings has been the reason why. It should be considered a rebuke of conservative authoritarianism when their own judges reject the conservative line.
But in the end that is the problem; Judges are now clearly partisan actors and there is no way to fix this. Conservatives will dislike a liberal court and work to secede from its rulings however they can, and liberals already see the current court as illegitimate in how its bench is pre-selected for specific cases the right wants to redo.
I don't see any path to redeeming our institutions so long as we are so deeply divided, and when the party in power is actively attempting to harm the people that did not vote for it.
2
"Should Democrats win that trifecta..." - extremely unlikely. But discussion packing the court when, as you say, the Republicans can do the same thing when they are in power, will make it even less likely. But don't give up - Kavanaugh and Thomas could each be impeached for lying under oath. Even if the impeachment were not successful, the evidence introduced could do permanent damage to them as justices and de-legitimize precedent they created, setting the stage for a future counter-revolution based on a clear rationale: the Court was usurped and has not been restored. (And I really don't care if all this hurts Biden).
1
Proposing to 'pack the court' follows the present line of political thinking 'if they bring a knife, bring a gun; if they bring a gun ... (etc)" the logic of which impels us to (unbelievably) a future state even more devoid of reason and reasonableness than ever. Both sides think the other is more ruthless and brutal, and one can only hold out hope that us hoi polloi will finally gnash our teeth, say 'enough is enough', and toss the pundits and politicians to the curb alike.
4
Couldn’t agree more, Jamelle. The Dems should make the Court an object of ridicule the same way the Republicans have made the Congress a laughing stock. Eventually people will get the idea we need to start all over again.
3
Take the last paragraph of this article and move it up front. That will save people from wasting the time of reading it through.
2
If your ideas fail with people then you legislate your ideas, so you don't have to deal with the unknowing masses.
3
I just wish RBG would hurry up and retire.
6
This is symptomatic of the far left’s total desperation.
19
What is your problem Mr. Bouie? Do you not like the US constitution? Are you in favor of a social welfare fascist state which would require a drastic change in the constitution?
12
@wes evans: What does the Constitution have to do with the number of justices on the Supreme Court? Wait! I know: It provides that Congress decides the number.
Feel better, now?
By the way, nothing, at all, in the Constitution would have to change to permit a social welfare state (which is entirely unrelated to fascism, except that the two are typically incompatible).
5
I am so excited about the idea of creating 2 new seats on SCOTUS that I will donate generously to whichever Presidential candidate or Congress member that commits to seeing it through legislatively.
1
Jamelle Bouie offers a suggestion which will eventually have to be considered by whoever is unhappy with the tilt& domination of certain ideologies in the US Judiciary.The unwritten rule throughout history for a ruler is to avoid enforcing extremist policies as there will be a blowback.Even Monarchs were careful not to create rebellions in future.The issue is whether the Democrats will resort to correcting alleged tilts in the future.Of course,there has been the tradition of appointing whoever you like to the judiciary.But the blowback starts,when there is a celebration of it.That situation exists in the USA.Bouie justifies “packing the courts”such views by citing the 2 most recent appointments to the Supreme Court.It is entirely possible for the Democrats to”pack the courts”as was attempted during President FDR’s time.But even FDR found it was unnecessary as the Supreme Court“allowed him to govern”.In my opinion,the threat to pack the court,if it is a credible threat,will in the short term,moderate the idealogical tilts of the judiciary.The threat to impeach individual Judges also is sobering.A judiciary reads newspapers.Democracy rejects extremes.It may take time,but eventually political appointees became vulnerable if they are extreme.Republicans will do well to be happy with their gains& moderate their power.Triumphalism does not help them.Moderation will maintain“status quo”&their gains become embedded.The current debate on”packing the court”will have consequences.
1
The denial of a Supreme Court nominee to President Obama broke America’s democracy. The Democrats, who mostly are fools, will try to play by the rules, and the Republicans, who don’t, will win each and every fight.
4
There is a religious and political truth that dare not speak its name.
What would the founding fathers, the Real Federalists, of the US, have thought about the religious makeup of the current supreme court?
To them, as to others of British descent, "Papists" were the enemy.
2
I’m shocked at your inability to understand that things that favor your hoped for majority (now?) will come back to bite you in the behind when the other side gets the important parts executive & senate.
5
With states willing to condsider pro-American ideas, and the Senate in pro-American hands, we could go ahead and pack the Supreme Court.
I can imagine conservative members of the Congress, plus the mercurial Mike Lee, being added to SCOTUS, plus a couple of previously mentioned Trump waitinjg-listers.
This will strengthen the pro-American side for the remainder of Jamelle's public career, anyway - and there's nothing like being seen as the Father of the New Supreme Court. Jamelle would be so THRILLED!!
Yeah. The last time Democrats changes the rules to benefit themselves it led to the appointment of more judges they disliked. How about trying to win the hearts and minds of Americans instead of destroying our institutions ?
16
Two wrongs don’t make a right.
For the federal government to function as designed, supreme court justices should be as non-partisan as possible.
For the left to pack the court with liberal Democrats is to adopt the treacherous immoral unAmerican tactics of twenty-first century Republicans. Winning by imitating your enemy in a matter such as this yields no victory. Only defeat and ethical bankruptcy.
6
It’s going to be interesting when the next Democrat-nominated Supreme Court nominee is inevitably faced with unconfirmed, unverifiable, decades-old allegations of sexual assault. Will people like this author accept the allegations at face value? Or will they bend over backwards to find that the nominee should nevertheless be confirmed? I suspect the latter.
13
@Jake, the Republicans have NEVER done as youu suggest - and as the Democrats did to Justices Thomas and Kavanaugh.
America-lovers KNEW Pres. Obama's nominees like the hopelessly inexperienced but politically committed Elena Kagan would damage the country every year they served on SCOTUS, but they STILL got an easy process under Senate leadership.
The last-year nominee of Obama's, like other last-year nominees from Republican presidents, never had a chance under the informal rules in place under Sen Harry Reid, of course.
You can thank him for no more (or few) SCOTUS additions in presidential last years.
2
So you support what you imagine to be the Republican strategy? How about nominating no-partisan justices that apply the law without bias? A concept that is alien to the Democrats and Bouie.
8
Don't mess with a good system that has served the American people well for over 200 years!If 1 is earning a 6 figure salary without having to do actually do any physical work and 1 is at a relatively young age and benefitting from identity politics, be grateful to America and the founders of the country.FDR tried to pack the Supreme Court and he was stopped. THIRD TIME today I have pointed out what a spoiled lot AMERICAN JOURNALISTS ARE, especially those in the liberal media who enjoy a high salary and press freedom, a luxury that other, I might add, HEROIC journalists do NOT enjoy and who work in conflict areas where their lives are at stake. In a previous comment,noted that Mr. Bouie has yet to give his proofs as a courageous, heroic columnist, unlike reporters in dangerous places like Mexico or Algeria where over 70 crusading journalists put their lives on the line during the second Algerian war and were murdered, whether by GAI FIS or the armed forces. Even today in Algeria there is a climate of fear,of a fear of what to expect even though country has ostensibly returned to democracy.We have in "les Etats Unis"a system in place which guarantees freedom for all, even left wing journalists. Let us not ruin it!ANGLO NORMAN KNIGHTS @ RUNNYMEADE knew what they were doing when they forced King John to sign the Magna Carta, FOUNDATION of the liberties which we as Americans enjoy today.We owe them a great debt of gratitude!
2
I'm convinced Trump and his cult party have no intention of giving up the White House or senate. Period.
America is no longer America. Too many "Americans" willingly sat out elections, threw votes away on third party candidates who never stood a chance of winning, or allowed Fox propaganda to persuade them that Republican lies were truths.
That last group is beyond saving. They are dedicated cult members. They will support Trump even if he orders the beheading of President Obama, Hillary Clinton and Justice Ginsburg, and the FBI to arrest all congressional Democrats. The Justice Department is now Trump's legal team and mafia enforcer.
Senate Republicans are no better. In fact they are worse because they are educated, intelligent (for the most part) and know what the truth is. But they have chosen to to mock the Constitution, betray America and end our democratic republic.
They too have nothing to lose by ignoring election results which throw them out. They have already made it clear they no longer play by the rules. Cornered rats have no where to go.
Emergency declarations, executive orders, foreign intervention, elections cancelled, election tampering, nullified elections, Roberts' Court decisions to pick winners, federal troops. Take your pick. Trump, McConnell, McCarthy, Graham, Cruz and the rest of the cult will do whatever it takes to put a final nail in our democracy's coffin.
THEY WILL NOT GO QUIETLY.
4
Maybe the Democrats should just tear up the constitution and write a new woke one as that is what they expect the court to do.
11
"Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court. .."
In another column today, Paul Krugman excoriates the Republicans for anti-democratic shenanigans. Now look who is talking. Packing the court? Abolishing the electoral college? Breaking the filibuster?
The constitution was written precisely to prevent the tyranny by the majority. Not all NYT Op-Ed writers seem to understand that.
7
Interesting all of the bake comments defending the misogynist Kavanaugh. The old boys stick together no matter what
3
“Democrats should learn from this....”
Not with the candidates for POTUS their offering and current/ new over spoken politicians in the House will they learn, especially when they go after seats of their own members ...
2
Trumps nominations seem to rely on competency rather than affirmative action.
9
Such a bad, foolish idea. Please Democrats don’t try it!
7
Between Bouie's historically ignorant ( i.e. FDR's failed attempt at court packing), daft idea at stacking the court, Blow's lame criticism of Biden in yesterday's paper, other columnists endorsing unelectable candidates like Sanders, and Warren wanting universal health coverage and decriminalizing illegal border entry, I ask myself: Do I need a new newspaper, a new party...or both.
What planet are these people on?
Get out into the country, sit at a diner counter, go to a ball game, look at the people around you, listen to what they're saying, or not saying, or should be saying.
Get a grip before vast numbers defect from the Dems and sign up as independents.
Let's get back to "normal" (as hard as that is to remember with this twisted, narcissistic fascist and his Republican-Right-Cover-Guard in power) first. Then come up with a workable, practical, equitable, forward thinking agenda based on consensus.
Hardball yes, but with a strategic, well thought out game plan that takes into consideration the mindset of people who read the Daily News, the Wall Street Journal, and those who don't read at all but who, hopefully, still have some faith left in our Democracy.
And yes, the Electoral College may be the first place to start...then we might elect Senators who don't choose ideologue judges.
Here's hoping.
4
Ridiculous!
And your “bevy of ethics complaints” comment is ludicrous.
5
Oh gosh, this is so OLD. Remember Robert Bork ?
It entered the language!
From Merriam Webster
bork verb (1)
\ ˈbȯrk \
variants: or less commonly Bork
borked also Borked; borking also Borking; borks also Borks
Definition of bork (Entry 1 of 2)
transitive verb
US politics, informal
: to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification
In any event, seeing one of their own being borked may itself energize the conservative base, even beyond what a conservative nomination would do.
— Mark Tushnet
In 1987, conservative judge Robert Bork endured such virulent criticism … that to this day, a nominee sidelined by activists is said to have been "borked."
— Claire Suddath
8
Bravo!
Historically speaking, this is a really shallow point of view.
8
I still do not understand why Obama did not appoint without confirmation during that long and painful empty-seat period by invoking the law that said he could do so if Congress failed to do its duty. Not a lawyer...don't understand this tragically missed opportunity.
1
I share the goal of crushing the Republican party. I do not think it likely that that goal can be accomplished within the current structure of the Federal government. Time to think about splitting up the Union. If we had let the Confederacy go it's way, we'd not have the current deadlock and bedlam in Congress . . .
Do you think they'd take the offer if we said we've changed our minds about maintaining the Union at all costs?
3
@KCox I'd love the US to be separated into the Blue States of America and the Red States of America. It will be fun to watch the Blue state people attack each other continue to separate into atomized parts, while the Red State people remain unified. Soon it will be the Blue States of America, The Woke States of America, the WokER States of America and the WokEST States of America.
4
Who do you think serves in the army? It isn’t New Yorkers like me.
4
I swear every time a read Jamelle, I am more and more convinced he is a CIA or Heritage Foundation plant, aiming to promote radical ideas that make democrats look like morns to the majority of the voting public.
14
No thanks. We need more rule of law, and less rule by lawyers. Not the reverse.
7
YES. Thank you. There is no cosmic significance to the number 9. Indeed, the Senate was fine with 8 for a year or so.
Never will happen. My party is lead by two weak, timid, tired, old leaders in Nancy Pelosi and Chuck Schumer. The Democrats need new fresh leaders like Warren, Beto, Gabbard and Castro who are brave, smart and strong and can take on the ruthless Republicans.
This is one of the worst op-eds I’ve read in over 30 years as a NYT reader.
My son, a proud left-leaning centrist with only an AP US history background was able to pick apart the author’s piece. Just a couple of examples:
“expand and pack the entire federal judiciary”. My son: Then when the tides change and the other side has majorities they will take similar (but likely far worse) countermeasures.
“The goal isn’t to make the courts a vehicle for progressive policy”. My son: based on reading the whole article...Yes, it is....at least its the authors goal.
After reading the article, my 12th grader said that the author doesn’t understand the Constitution.
16
@Haggisman as a right leaning centrist and lawyer of many years experience (with an undergrad history degree), please allow me to commend and thank your young son son for his insight. He’s absolutely right. He will do well in college.
9
"Democracy" is not defined by one party always getting their own way. Neither is is anti-democracy when a different party anyone gains political advantage is only possible if they are corrupt, evil or deplorable. The seperation of powrrs both lo g and short term
4
This is a done deal, already. Contain the damage, and VOW to VOTE for Democrats, only. Each and every Election. Eventually, even the most Stupid Republicans will get the message and/or will be voted out. JUST DO IT.
1
This is a war with the GOP. This is a war with a party of bandits and crooks who have been ruining the ethical and social fabric of this nation for just economic gain of the 0.01 percent.
Enough! Basta!
Pack the courts, kill filibuster, rewrite the constitution, annul the electoral college. Medicare for All. Universal public education Fred for everyone.
Enough with oligarchs. Enough with crypto-fascists.
Enough with kleptocracy.
3
The people who believe, à la the 1619 Project, that America got rich through exploitation, tend to believe that in the present the same thing applies. That commercialism isn't cooperative; that exploitation, taking and stealing, is the road to prosperity. "And so we shall, in power, take back the stolen wealth."
They don't like the idea that culture yielded institutions, in the Netherlands and in Britain, that guided and rewarded behaviors that led to the creation of an economy where innovation and technological progress could flourish. It wasn't culture that created abundance. It was exploitation. And if wealth was obtained this way in olden days, why not today? And thus anyone or any company that is successful is suspicious.
Reverence for institutions, which are but tools of white supremacy, is minimal: "What keeps us from power, we will destroy." ... Conservatives dismiss slavery's legacy because they feel no obligation to blacks. Leftists amplify it because that's the main obligation they feel. There is no doubt that slavery retarded the South's economy; that doesn't mean we're unburdened of the human debt incurred by its practice. The ill effects on slaves and their descendants were massive.
But giving power to leftists who seem to imagine that wealth is always gained by force and exploitation is perilous, as evinced by the above. Everything can be justified to obtain power. Is there anything Bouie WON'T justify in this quest for progressive power? I've yet to see it.
4
Appalling. This article shows everything that is wrong with the Democrats now. Why not just admit that you hate Democracy because your policies are not what the majority of America wants.
Well, unless you open borders, promise free healthcare to illegals and want them to vote in elections. Then you get more votes but at what cost?
You are so blind to what you are becoming. A party that will do anything, say anything to win power. In other words, a totalitarian party determined to overthrow Democracy.
10
AMEN, sir!
1
"They should play hardball back. "
They HAVE been playing hardball you silly goose! Look at all the lies and smears against Judge Kavanaugh.
What's your plan B?
9
If this author hates the Constitution and its system of government, could he perhaps realize he is hostile to the American system and leave the country, and leave it to citizens who appreciate it and are patriotic and loyal, instead of feeling comfortable spewing opinions which have no legitimacy in terms of our country's founding principles? I think his views are ignorant and destructive to our society and I pray that he simply causes people to cancel their New York Times subscriptions and go elsewhere for more honorable contributions to discussions about serving the common good. Dear author, why have you felt free to spew hatred for your own system of government but still remain here? I see this writer as lacking in depth, judiciousness, and education, whatever degrees he may hold. He does not deserve to corrupt his more guileless fellow citizens.
6
So basically -
The Constitution and the structure of government, which for all its imperfections has fostered the greatest civilization the Earth has ever known, is in the way. We need to jettison the system that freed the slaves, lifted more people out of poverty than any other, and defeated the Nazis, so we can fast track the new progressive agenda. We need to just live in the moment, disregard history, and throw caution to the wind so we can pass "medicare for all" and the "green new deal" - because these massive government programs will be different. Our new elected democrat majority will be better. We won't need the constitution anymore - its simply run its course.
8
Mitch and pals have put a drunken frat boy on the Supreme Court and a bunch of weirdos on the lower courts. If packing the court is a way to correct this, I’m all for it.
2
This “opinionist” has consumed the NYT Koolade. Keep the endless fights going. When the Republicans go low, the Ds should go lower. What a world.
5
One would think a requirement of being hired as a New York Times op-ed columnist would be to actually know how one's government is designed and functions. Mr. Bouie clearly hasn't the slightest idea.
10
Set aside the science and religion. Answer this one item quiz:
You are visiting in an infertility clinic. Why you are there is irrelevant. You smell something burning, open the door as the fire alarm goes off and the hallway is filling with smoke. As you head down the hallway towards an “Exit” sign, you the cries of a small child and stop. You open a door and there on your left is a small child crying An day on your right a canister labeled “Liquid Nitrogen—1000 embryos”. It is not possible for you to carry both. Do you
A. Grab the child and leave.
B. Gran the canister and leave.
C. Leave both behind to burn up.
There is one correct answer. And that answer defines your belief in personhood.
This is "journalism"? Petulant whining about the political consequences of losing a particular democratic election? Wow.
8
Sorry, but this is just plain wrong. Democracy is fragile and the rule of law particularly so. Yes, Trump and the Republicans are testing the limits of democratic norms. But the answer is not to mimic them. What you suggest would deligitimize the court in the eyes of all those who vote Republican. That is not the way to heal the wounds that Trump and McConnell have inflicted.
3
I agree, except that I would go to, say, a 23 member court to avoid Republicans just going up by two if they retake power.
First the USA has a 18th century constitution in a 21st century world. Since it appears improving the constitution is impossible, you have to work with the tools you have. Clinton was impeached but not convicted for lying. Clarence Thomas and Kavanaugh both lied while under oath at their confirmation hearings. Just don't try to impeach them while you have a moscow mitch controlled senate. Packing the court is an option if you can get results. Climate change, gun violence, voting rights are problems that have to be delt with right now. If the current court is going to reverse the congress for ideological reasons and packing produces good results and the government governs wisely it is worth the risk.
2
This is spot on. The Supreme Court is illegitimate because of a stolen election (2000) and the resulting 2 justices. Plus one for Gorsuch. Adding more justices will also allow for more diversity of opinion. Everyone knows that this clown court is a mechanism of oppression from the GOP minority.
1
So the Dems "pack the court" in 2020 and the the GOP re-packs the court when they win. In 40 years we will have 100 SCOTUS members. Ridiculous strategy!
6
Yep. That’s what politics is all about-getting even. God help us.
5
Yep, play hardball. High and tight.
I suggest another way
How about winning the presidential race
5
how about no more life time appointments ?
That is the biggest joke of all.
You get a 10 year term and then you must be re-appointed.
3
The GOP know that the only way they cab hold onto power is to rig the system in their favour and claim "thats politics". Whilst that may be true. It is not democracy. If democracy is best served by court packing then that is what the Democrats should do.
3
So the GOP rigs the system, but you think the Dems should pack the Court. Which is rigging the system, in an ineffective manner. Brilliant.
Here's my alternative: start winning elections.
5
"Should Democrats win that trifecta, they should expand and yes, pack, the Supreme Court."
Just because you can doesn't mean you should. How quick those on the left forget the path forged by Senator Reid. Which quickly came around to haunt the Democrats.
There's no way the Democrats will stay in power in perpetuity even if they control the whole both elected branches. A down turn will happen, they will not be able to turn it around which will result in another flip. And the other side will just repeat the process.
This is typical of the irresponsible reporting and advocating that we read about in the NYT.
What is absolutely needed is term limits. But that'll never happen. Especially with the Democrats in power.
8
This court is the worst since the early 20th century. Packing seems to be the only route to achieve balance. I hope we get the chance and the democrats have the courage to do it.
4
Imagine the authors response if the republicans packed the court right now.
12
@Dady
I think the point is that they already are, given that they denied federal and SC appointments by Obama...
5
YES!!!! I've been saying this since they stole that seat.
1
This is a deeply ignorant and confused column. Bouie accuses past courts of preventing government action, but that's also known as "protecting individual rights" from government coercion.
His story about prohibiting the ownership of gold in the 1930's literally doesn't make any sense. Wherever he was going with it, he forgot to complete the point.
But what the heck, go for it. What's the worst that could happen? Just making the Democrats look like dangerous power grabbers and having the Republicans pack the court themselves once the idea is legitimized.
10
I’m so disillusioned that I would rather have another 4 years of Trump than a clueless, don’t-rock-the-boat Democrat.
7
It's this type of silly, over-the-top politics that will get us another four years of Dictator Trump.
As Tom Friedman said, "please - spare me a revolution."
When will folks figure this out?
7
Pleased to read this paragraph:
To that effect, he (referring to FDR) quoted President Abraham Lincoln, who said, in his first inaugural address, that "if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Who remembers this type of thoughful eloquence from a U.S. President? When discussing our present members of the highest court of justice, are we not clamoring for "the whole people"? We should if we are to restore any faith in our Supreme Court.
1
Why add only two liberal associate justices? How about six?
3
This would be a disaster. We would have one hundred justices in fifty years.
The Democrats are making a mistake by again trying to clumsily smear Kavanaugh. This also appears to be an idea borne of frustration rather than reason.
If they truly believe Republican tactics are appalling why would they want to engage in appalling tactics? Do they have so little faith n voters? Is this what it’s down to; short term victory at any cost?
The NYT is leading us off a cliff.
16
I agree pack the court but more importantly we should permanently pass a law so judges don't have a life time appointment. How about term limits for politicians while we're at it along with abolishing the electoral college & lobbyists.
There is a ton we could do to improve our democracy.
Trump is doing the opposite - tearing it down & making it more difficult for all votes to count.
We really need to take our govt back from this criminal enterprise!
1
Democrats playing hardball? As Jon Stewart often said, fuhgeddabouddit. They are constitutionally incapable of doing so, and they are squaring off against Mitch McConnell and Vladimir Putin. Good night and good luck.
Worth repeating that Kavanaugh and FBI Director Chris Wray's were at Yale Law School during the same time. Kavanaugh was a member of the Yale Law Journal. Wray was the Executive Editor of the Yale Law Journal. Kavanaugh and A.G. Barr were both attorneys with law firm Kirkland & Ellis that represented Jeffery Epstein, Russian oligarchs and Alfa Bank, and BP Oil of Deepwater horizon spill. DoJ Criminal Division head Brian Benczkowski represented Russia's Alfa Bank up through his nomination hearings. Alfa Bank, a Russian criminal cartel-controlled led by Mikhail Fridman with ties to Putin and Manafort. Barr received dividends from Vector Group, also suspected of laundering money via New York real estate--including Trump Organization holdings; a popular destination for Russian kelptocrats' money. Vector Group CEO Howard Lorber introduced Trump to the Moscow real estate market in the 1990’s. Barr himself is worth $20 million and has money in Deutsch Bank; a bank fined for illicit practices and rumored to be a conduit for Russian money laundering. Despite this--Barr was awarded the AG role without being fully vetted and has repeatedly lied as AG.
Surely this is enough to concern patriotic Americans.
https://www.newsweek.com/so-many-conflicts-so-little-time-1396435
3
Kavanaugh did NOTHING wrong... if you disagree with this assertion please provide PROOF. Not conjecture, 30 year old vague stories, personal smears, allegations.... bring. me. proof.
12
Aside from the fact that he is totally unfit as a judge for ANY court including traffic, a liar under oath, and a die-hard misogynist?
YES, I agree on packing the courts! The thieving Republicans stole Judge Garland from President Obama and rammed through Kavanaugh after eliminating the filibuster. Let them sow what they reaped! If Democrats take Congress and the White House, pay them back five fold!
1
This is the most ridiculous column I've read in the Times in a long time (and that's saying something).
Trump hatred makes some people irrational and Jamelle would definitely fit into this category.
13
@Ilya Shlaykher from Cambridge, MA (who objects to quick changes for short term gains pretty categorically)
The constitution is archaic. The electoral college is a travesty. The way the SCOTUS is filled is a joke — think of the Garland case.
So, I would think getting something done to get the nation onto the 21st Century will require a political revolution (not quite a Jacobin one though). Bernie is 100% correct.
Saying no,no and no is fine when you have something worth keeping. We do not. The archaisms going back to slavery owning oligarchs are not worth saying “no,no,no” for. Yes it is true that for someone coming from a country ran by a politburo (I am assuming you are from the old USSR or at least your parents were like many of my students and professors at Harvard some time ago) the first impression is that the USA is a brilliant democracy. It wears off!
2
Focus, bud. Saying that the Constitution is antiquated is easy. But amending the Constitution is extremely difficult to do, especially given the fact that the Democrats don't control Congress and that is unlikely to change in the near future.
And even if you could implement a constitutional amendment to pack the court, what's your plan for the future? Unless you have a rock solid secret plan to make sure that the Democrats never lose another election, what's going to happen sooner, rather than later, is that control of the government will shift, and then you're going to have the Republicans in power to fill those new seats when they become vacant, as they inevitably will.
Why can't Democrats think ahead?
2
Our founding fathers invented the Electoral College in 1787.
In 1802, Humphry Davy invented the first electric light.
(The Electoral College, the first electric light, get it?)
Some things like the Electoral College and the Supreme Court get outmoded, you know.
1
Democrats like Stacey Abrams, Beto O'Rourke,et.al. need to stop doing their imitations of ostriches, get real, and make serious runs for the senate. This way the dems might have a shot at stemming the bleeding and get the court thing right.
Oh yeah. There's the thing 'bout getting in the white house too.
1
And what do you think Republicans will do in response? Your myopic view reminds me of Harry Reid and the filibuster.
7
Sorry, but this way lies madness. Once the court packing starts it will never end. It was the Democratic Senate Leader who decided to scrap the filibuster for Federal District Court judges. This really opened the door to the same thing being done by the Republicans for Supreme Court appointments, or do you not remember? If you think one party, either party, will remain in power and the other party will not “repack” the court to its liking, you are really naive. If that’s the case why is the NYT publishing your editorials? Beats me.
8
Janelle has the same view of democracy as Robert Mugabe had!
11
Stupid ideas like this are what is going to give Trump another term. With the recent raft of "great strategies" from the Dems (impeach Kavanaugh, Medicare for all, pack the Court) we are getting to the point where Trump won't even have to leave the White House to campaign. He can just tweet once a day and win in a walk. The DNC is so devoid of strategic thinking, and even common sense, that sometimes I think its leadership are undercover Rep agents.
7
People who fail to understand history inevitably end up sounding stupid - and repeating it. The Electoral system exists for a reason. First off, you do not elect the President of the United States of America. We live in a Democratic Constitutional Republic with a Federal Government system. The Electoral College system is designed to protect you from your own stupid ideals like electing presidents via popular vote alone. Our government was originally bound together under the articles of confederation. No... not the bad guys in the Civil War... Decentralized power held by the states rather than the central government. Our frontier states refused to form a government out of fear it would suppress state's rights. Eventually, it was found that the articles of confederation crippled our ability to unite and govern. As a check against power hungry big government, the Electoral College system was proposed so that each state had their own representation in the election of our Executive branch in a Federal government. Meaning, NY and CA can't run the country without TX and AK's involvement. Meaning, CA can't decide what's best for TX and vice versa. Popular vote is equivalent to mob rule and ensures only urban settings are campaign stops. Meaning, no equal representation for the rest of the country...
Read your history before writing garbage. No representation = revolution = everybody loses.
Your liberal tirades are already stoking the flames enough.
12
Packing the courts sounds like a route to chaos. Instead, why not put term limits on judges, including Supreme Court Justices? https://fixthecourt.com/wp-content/uploads/2019/09/TL-Campaign-Update-August-2019.pdf
1
@David Rubien
"Packing the court" can be accomplished through an act of Congress, by amending the Judiciary Act of 1789. It's a horrible idea, but it can, indeed, be brought about through legislation.
Imposing term limits on Federal judges, including Justices of the Supreme Court may, in fact, be a good idea, but imposing it would require amending the Constitution, which is unlikely to happen.
Blech. Am I the only one who doesn't like history dissertations on my newspaper op-ed page? There is nothing "timely" about this, and a Court-packing scheme to counter Kavanaugh's alleged lies under oath at his confirmation hearing?
Best I can tell, in trying to wade through*, Bouie thinks we object to Kavanaugh because he is a young, straight, white man. No, no, no! We object to his ACTIONS, not his characteristics. Court-packing is silly. Says you have no faith in democratically playing the game, and electing presidents who will support the justices you prefer when openings occur.
-------
*Lest you think I am being critical of Bouie's overly scholastic style in my newspaper, as a columnist, Ross Douthat suffers from the same problem, only his take is religion theology while Bouie does race analysis.
This is scholastic journal material, not fit for newprint in a daily. David Brooks tries to do this too -- before he went all new agey with his second mountain theme -- when he took to summarizing scholastic articles and passing them off somehow as timely opinion on the news.
1
We accuse Trump of habitually throwing impractical and legally problematic "red meat" to his base. Is this the New York Times throwing bushels of kale to its base?
6
Talking about packing the Court increases the chances that Trump will be re-elected which means at least one more far right Justice and thereby the Court is lost for at least a generation
3
there is just no getting away from the fact that the court is a particularly political grouping. not that mcconnell started this partisan fight but his withholding of the obama picks "hearings" was so outrageously political that fairness demands that the advantage that mcconnell thought he was gaining has to be wiped out by fair means or foul. if the court has to be enlarged to 11 then that is the way it has to be. and then if the g o p decides it has to go 13 again so be it. it could be an endless rigmarole until the parties decide enough is enough and sanity takes hold. the supreme court should not be making laws.
Packing the courts does not advance the objectives of Democrats to restore democracy to the USA. The separation of powers gives Congress the power to overcome judicial overreach without packing the courts. What Republicans did was wrong but two wrongs don’t make a right. I just hope more people will agree and we can start to heal the wounds.
2
Another daring proposal ,brilliantly presented and documented.
Hopefully this one will find its way to the game playbook of the next Democratic president.
The USA has grown immeasurably in population and sophistication since the John Jay era of 6 judges, but proved of little relevance to the Republican party who ,through senator Mitch McConnell's twisted semantics denied president Obama's Merrick garland even a hearing!
I only regret that mr Bouie gave away the play too early in the game, enabling the other side (should we call it the dark side) to prepare a counter move.
There is little fairness to be expected from the judges picked by president Trump. They will show no sensitivity for the truth and I do fear, pay little respect to the spirit of the constitution when issuing a decision from the bench.
The reason for this was suggested by Spinoza who once wrote:"It may easily come to pass that a vain man may become proud and imagine himself pleasing to all when he is in reality a universal nuisance."
Let's root for a Supreme Court of 11 Justices.
Are you serious? Or do you just have no knowledge of history or politics?
3
Trump probably will be re-elected and the court will not be expanded. You don’t understand non- elites generally referred to as Americans.
10
@Bob Baskerville you obviously don't get the fact that people who disagree with you are Americans as well.
1
Our current, malfunctioning, miscreant led government is a product of a system which long ago needed a major re-boot. Democracy is broken, you might say has fallen and can't get up.
We possibly never were who we thought we were, as exposed by accurate accounts of history.
Now is the time to better than we thought we were in the past.
Power to the people without just simply manufacturing a new ruling class who will ultimately be a tool of the 1%.
Wish I had answers...
As long as starry-eyed democrats dismiss the importance electibility, there is a near certainty of 9-0 Supreme Court, whether under the current president or a future Pence administration.
4
Instead of packing the Court (which is doomed to fail) how about the next best thing--term limits for Supreme Judges? No one should be appointed to a lifetime job. How about a 10 year term for Associate Justices and a 15 year term for the Chief Justice? That way there will be new faces on the Court on a more frequent basis regardless of the party that occupies the White House.
1
Thank you for your brilliant research and hard work in producing the columns you write!
Let's get real...the only way any of this plays out
in the real world is for there to be a massive economic slowdown, or some horrible miscalculation re Iran, NK, or China.
Absolutely all of the swing districts in all the swing states
would need to vote in one way only, no ambiguities allowed,
and there must be no sitting on one's hands to protest
a less than stellar savior as candidate. And there'd need to be
few taints of illegitimacy in tallying ballots too....
So, what are the chances of all that happening next November??? After the ugliest campaign of all time (surely)
and the inevitable reports of hacking of election sites here there or anywhere.
Still further in the search for an appropriate comparison, would we not need a massive drought, or any
other of the ten plagues that our pharaoh is just asking/itching for,
followed by a miraculous democratic
win of gigantesque proportions, and NOT by a military rule
to salvage whatever remained of a social order?
Just another idea that will fuel the right!
4
You haven’t noticed that it doesn’t take actual real things to fuel the right?
SHE NEEDED TO WIN! Using “hardball” and “Democrats” in the same sentence I’d just wrong!
This is insane. Jamelle Bouie, you have no clue what you're encouraging.
Court packing is extremely dangerous. Just like the "Nuclear Option" was dangerous during Reid/Pelosi's reing, it was dangerous when Mitch McConnell ultimately succumbed to the corrupting temptations of the nuclear option.
All of what you listed out as "challenges to democratic rule" are in place for the sake of our democracy. It is absolutely foolish to dismantle these safety mechanisms, including the filibuster! It may seem politically expedient for you now, but everything you listed as necessary would strip you of your rights and further separate you from your government.
Court packing - because you don't like the outcome of the election, you want to ensure that when you have power again (which will and should happen - let the pendulum swing to keep our nation healthy) that you will be able to hold on to that power and never lose again. You mention this to counter-balance what you perceive to be an upset in balance. Though, it isn't an upset in balance at all, you just don't like the outcome!
Kavanaugh is not "Guilty until proven innocent". And therefor his appointment is both appropriate and justified due to his experience. If it is determined that he is guilty of a crime, then he should be impeached from the supreme court and imprisoned in accordance with legal conviction. Until then, your claims are false and harmful to our rule of law. No one is guilty until a court finds them so.
8
I think we should have at least 30 members of the Supreme Court, once the Democrats win everything in 2020.
Make Gorsuch and Kavanaugh look like the tiny dwarves they really are.
In the interim, I consider the present Supreme Court, as well as the Congress, Presidency and most state governments, illegitimate.
They rule by tyranny and force only. They have no real mandate.
Even in Imperial Medieval China, the loss of mandate meant the complete end of a regime forever.
We should have at least that possibility, in this purported democracy.
Meanwhile, the criminal horde running the country presently makes the US a complete laughingstock, without credibility, throughout the world.
Pennywise and his fellow clowns, infesting the seats of power with their utter..... mediocrity.
1
Yes, yes, the Democratic pundants have now advocated packing the courts, changing the voting age to 16, allowing prisoners to vote, not requiring any kind of voter identification (voter id laws are racist ya know!). In very liberal areas they allow the undocumented to vote in state elections (supposedly not in federal elections but seriously)....
It seems like the Democrats can’t talk enough fully grown, tax paying, law abiding citizens into voting for them so they’ll just bring in new voters then. I’m not sure what this says about the Democrats. But every time I see the terms Gerrymander and voter suppression my eyes glaze over. blah blah blah
8
@Kaylee Democrats aren't the ones trying to win elections through circumventing the process. And pointing that out is not whining. But saying that it is could be considered bullying. Is that what you're justifying?
2
Absolutely. Time to get ruthless.
1
The establishment Dems don't know how to play hardball.
Mr. Kavanaugh perjured himself in his Senate Testimony. Forget about whether he remembered attempting to rape Dr. Ford in a drunken state. He lied when he said he was unaware of the the accusations by Deborah Ramirez until after a New York Magazine article was published when there is evidence that he texted a friend to ask her to get out ahead of the article before it was published. There is video evidence of him perjuring himself in front of the nation as he stumbles to create a story when he is obviously lying. Please refer to him as the criminal he is.
3
SCOTUS packing didn’t go anywhere with FDR and it won’t go far here. Simple solution folks, vote as if your rights are at
stake. Stop acting surprised when a Republican names a conservative the Court, you have seen this dance before. Finally please STOP saying Sen. McConnell “stole” a nomination from President Obama, there is no time table for a nomination to be considered or not considered. Mitch took a gamble and it paid off. If this was sooo important to you liberals, why didn’t you come out and vote out the GOP for such strong armed tactics?
2
"Democrats are left in an unenviable position. Should they win a federal “trifecta” — the White House, the Senate and the House of Representatives — they’ll still have to deal with a Trump-branded judiciary. It’s entirely possible that a future Democratic agenda would be circumscribed and unraveled by a Supreme Court whose slim conservative majority owes itself to minority government and constitutional hardball."
This author cannot be serious. He is so anti-democrat and intolerant that he can pass by only in NYT which cherishes such authors, and bemoans the copies when they are on the other side.
Here, the esteemed opinion writer calls for some sort of revolutionary approach to Supreme Court since it does not reflect his political opinion. While I have zero sympathy for that court and see all the judges as judicial politicians (of course, Ginsburg included), my feelings are a lot more negative towards opinions as this which call for variety of unwarranted protests and actions to establish the liberal regency. God forbid the options above of liberals having the absolute reign in this country, that would be a disaster and complete triumph of the mondialistic elites owning all the media of significance in USA (almost).
7
Every dog has to have his day. What smells fresh in the morning, smells rotten at the end of the day. That 's a fact nobody wants to understand how life is. We argue and argue to no end and guess what? at the end of the day, it all still smells rotten.
This whole issue was started by Harry Reed He made it easy for the Democrats to appoint judge when he torpedoed the 60 rule. Now this absurd idea of packing the court is behind the pale. This is not the way to improve the court!
If we pack the court now then what happens when the Republicans are in power? Then the Republican will add more !!
We could end up with 25 judges on the Supreme Court. Dumb Idea that IS NOT WELL THOUGHT OUT!!
5
@Victor it was started by McCONnell's abuse of the filibuster rule. Give credit (or blame) where it is due.
I’m sorry, but this is simply not serious journalism. The proposals are unworkable and driven by infantile impulse. The Supreme Court was actually not designed to always reflect your personal opinion.
9
Maybe the blue states should start talk about secession. The Red States want us to pay the bills but keep all the power for themselves. This blue state resident is sick and tired of it. All the Red States are good for is racism, intolerance, obesity and opioid addiction.
2
@Sterling
So start sending Libertarians to DC who will shrink the size and scope of the Federal Government and thereby your financial support of the Red States you appear to hate so much. You can then choose to keep more of what you earn or send Socialists to Albany to redistribute it to your fellow New Yorkers.
1
"McConnell ... cited a previously nonexistent “tradition” of tabling nominations made in an election year. (In the 20th century alone, the Senate confirmed Supreme Court nominees in five different presidential election years — 1912, 1916, 1932, 1940 and 1988)."
I believe the conclusion — but the argument fails spectacularly. The question is not how many were confirmed, but whether other nominations in similar circumstances were tabled, as McConnell suggests.
I have a much simpler solution, which is more reflective of the near constant 5 -4 decisions, with the votes on each side closely tied to the political party which gave rise to the voter's selection. Since the Court is acting like a legislature with two parties, let's just elect justices every four years, with justices running as Democrats or Republicans! Let's remove the pretense that in anything other than some technical case, justices are actually seeking an answer in the law.
By the way for those who will leap to the conclusion that I am some Tea Party member, I happen to be pro-choice and am glad that is the law in New York. That said, I certainly can see the argument of those who can't find that command in the Constitution.
The title says it all: one has to be "mad" to follow this columnist's advice. He's using the time-tested method of rousing the readers by creating a sense of outrage, and once the readers feel "mad" enough to follow mad advice, he offers the supposed solution.
But this decision that goes to the heart of our democracy should not be the product of heated emotions, as this columnist advocates, but of calm reason and deliberation.
Reason and deliberation argue against this tired and shortsighted suggestion. One big problem with this tired argument is that it's been already evaluated - by the quintessential liberal reformer of his time, FDR, during a time of far greater upheaval and crisis than now, when extreme measures were far more warranted than now - and discarded. Another one is that, of course, both parties can pack the Court. How about ending up with a majority of say 15 conservative justices out of 20, instead of 5 out of 9?
The Court is clearly out of sync with the majority of the country. And there are ways to bring it in sync with it, that have been the subject of extensive research by qualified constitutional scholars. This half-baked, tested-and-rejected, unoriginal idea is not one of them.
1
I'm not going to say if this is the right move or not, but I just think people should understand. We live in a country that had more red area the blue area. The senate is a body that predominantly favors area over population. That means at any given time, Republicans are more likely to control the senate then Democrats. Just something to think about. This sounds like something that can backfire horribly.
3
I have no doubt that the thoughts expressed in this Opinion piece accurately reflect those of the socialist and left wing extremists that currently control the Democratic Part. As such, I think it would be good for every American to read this article. It is important for everyone to understand the extreme and undemocratic lengths that Democrats will take to regain power and control.
15
. . . because everything is going so swimmingly today.
if the democrats pack, the republicans will retaliate when there chance comes up. we now know there was good rationale for mcconnel to block obama's appointee - the republican supreme court justice serves as the counterweight of judicial system trashing by obama;s judges. - we are especially observing this with the attempts to block immigration enforcement with nationwide injunctions. We can thank mcconnel for maintaining some resemblance of rule by law and function by the judiciary.
4
Franklin Roosevelt tried packing the Supreme Court (which he dismissively referred to as "nine old men") with New Deal activist judges in the 1930's. It was a total failure.
4
McConnell recalls from years past Kennedy and Bork; and, with his power in the Senate now, it’s gone dangerously south from then as far a show the Court, including Supreme, is concerned. A politically stacked Court is not becoming of the nation in its vocation to democracy and justice because the concept of power with this overcomes compromise to find a middle way for a more perfect (in the sense of thorough) union. Obviously, the law is arguable for its lack of precision, which in turn invites preference. Being objective and at the same time fair is hard. But that’s we are presently, including with citizenry unsettled, acting in an undeclared, resentful civil war. And being mad and getting even ... “playing hardball” ... by Dems if given chance to solve the problem instead of making it worse? Hardly! We need desperately now mature leadership that puts the nation as a whole and its future first. By now in world history it’s clear the rule of lex talionis, while good for the spleen, is disastrous.
1
The best way is to consistently win the Senate by having well-spoken, well-qualified candidates who know how to communicate effectively with independent voters in purple states.
That's the #1 problem with Democrats: They don't know how to speak fluent Fly-Over Country.
2
It is sad that our politics are now "tit-for-tat", don't get mad, get one up actions.
Trump is possibly insuring that his legacy, such as it may be, is not erased for many years to come.
However, I do welcome actions that could be taken up by a Democratic majority in both houses and a Democratic Presidency that could nullify the damage that Trump, McConnell and the Roberts court has inflicted on the country.
Why wait?
President Trump should run with this idea being pushed by the Democrats and pack the S.C. now.
11 would be a nice number.
6
The only point that I agree on with Mr. Bouie IN THIS ENTIRE ESSAY is that the Republican US Senators should have given Judge Merrick Garland "a straight up or down" vote.
My position has not varied in the intervening years. Stated simply, "Elections have consequences." Senate Majority Leader McConnell should have recognized that POTUS Obama could have nominated another jurist FAR TO THE LEFT of Judge Garland.
Now that we have POTUS Trump, Mr. Bouie needs to be reminded that the current president can (and does) appoint those to the various benches who espouse similar politics to his.
Please keep in mind that these appointments can backfire; witness Justice Byron White (appointed by POTUS JFK), Justice John Paul Stevens (appointed by POTUS Ford), Justice David Souter (appointed by POTUS Bush-41), et al.
This essay also exhibits some liberal Hubristic Arrogance. In effect, "the heathens who elected POTUS Trump" DIDN'T KNOW WHAT THEY WERE DOING. The packing of the Court (in defiance of historic norms) is the arrogance of an elite WHO APPEAR TO BELIEVE that they are anointed to be the keepers of all that is good, "especially when the voters err."
Mr. Bouie seems to also believe that WE ARE DOING THIS since you can't be trusted to vote the way that we want you to vote. If you're not going to elect "the right people", we will still enjoy "the Spoils."
The Times Editorial Board/Mr. Bouie should recognize that my response ought to expose the foolishness of their position.
3
I love that bit about "weaponizing" the First Amendment.
News flash, dude: The First Amendment is and always has been a weapon--our most essential weapon against tyranny. People of every political stripe use their free speech rights to push back against bad policies. Only a fool could consider this a bad thing.
Put it this way--if citizens are denied the weapon of free speech, they may reach for other weapons that you might like even less.
5
Pack the Court????????????? An exceedingly bad idea that will result in a never-ending larger and larger Court.
Think again.
1
"Think again" implies that there was some thought involved in developing this proposal in the first place. I'm not sure that's the case.
2
Mr. Bouie seems to not understand this key element of tactics: Do not threaten to toss out norms when the other party has the upper hand.
Were someone more meaningful than a NYT columnist to propose this, the President and the Senate would seem to be entirely justified in accepting the "new rules" right now -- no need to wait!
Does Mr. Bouie know which party controls the Presidency and the Senate at the moment? Let's wait while he does his research.
4
Hear, hear! I never thought I’d support adding more Supremes but with a SC now widely viewed as illegitimate and certainly non-representative, I’m all for it. If we can’t get rid of the serial abuser Kavanaugh and the stolen seat of Gorsuch, let’s negate them.
2
How about cutting the supreme court by 2, the newest 2? One should not be there because Garland should. The other should not be there because he’s a predator.
Once they are gone, the number can be revisited.
2
Jamelle Bouie, this piece appears to me to be inappropriate or atleast impolitic. The ideas are excellent, and well researched and argued, but you should never have voiced this strategy before we win the next big election. I fear that you will probably motivate your opponents more than your friends.
David blogs at InconvenientNews.net.
"Add two additional seats to account for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations."
Two more: One to allow RBG to retire and one for Thomas. The latter could be bargained down if he agreed to step down.
Instead of going into fits with every tweet, which never really served any purpose but itself drew plenty of attention, how about emphasizing this as just one of many reasons to vote.
In my most lefty fantasies, I can completely agree with Mr. Bouie. I always am tempted to wallow in the mud with the Republicans and play as dirty as they do. However, I cannot completely give myself permission to support this.
If you think about it, this all comes back to the polarizing effect of Gerrymandering. If we can end that, we will get more compromise in our decision making an more consensus from our leaders. This will, I hope, lead to more reasonable justices on the Supreme Court.
That said, the hour is late. We might not have time to reverse economic inequality, address climate change, and address gun violence soon enough to make a difference with the current political milieu. Perhaps a middle position of adding more Justices and randomly assigning a panel of them to address each case would be a path toward better outcomes.
That's a big "if," Mr. Bouie. The trifecta of which you speak is won by a powerful Presidential candidate and highly competitive Congressional candidates. Currently, Democrats are pushing the Green New Deal, likely a loser in MId-America and plans to revamp the Federal government plus a host of other initiatives that ordinary people label as radical. Radical is not a winning identity in our national politics. No trifecta in the near future.
1
Wouldn't it be simpler just to impeach Kavanaugh? He did commit perjury in front of the Congress. And this has no down side.
Packing the Supreme Court has a down side, as multiple readers have pointed out.
1
A brilliant breath of fresh air. Republicans have made use of the Constitution, which now gives disproportionate influence to sparsely populated hinterland communities, to cram a reactionary agenda down the throats of the rest of us. A Democratic Congress would have every right---in fact a duty---to operate the levers of that same Constitution to bring the nation back into congruence with the most rudimentary demands of a real, functioning democracy.
1
In name only does the POTUS nominate Supreme Court justices. And in name only does the Senate confirm. Money drives everything in politics including federal judgeships.
I don’t know if court-packing is the way to go, but I’m all in favor of Bouie’s overall goal—reducing the role of the courts in determining how we govern ourselves.
As he points out, whatever your politics, using the courts to determine policy has been a distinctly double-edged sword. For every progressive win on abortion or gay marriage there has been a Citizens United or a Plessy. For both sides the brass ring has become the selection of judges because we’ve decided to fight our battles in court rather than at the ballot box.
But people must understand what will come with putting the courts back in their proper place. We’ll have to press for policy changes through persuasion—winning over voters all across the country—and we’ll face the risk of seeing some victories undone when the opposition takes power. And we’ll probably have to accept more local and regional variation than we’d prefer to.
On abortion, for instance, advocates of choice would need to pursue federal legislation to guarantee it nationwide. Most other issues based on privacy rights would have to go the same way. In some cases states and localities would end up with differing policies until a broad enough consensus emerged to deliver federal measures.
In other words some real pain and setbacks would await.
That’s the price of taking the power to govern ourselves back. It’d be hugely beneficial overall, but we shouldn’t ignore the less appealing ramifications.
1
You can't pack the court when there are no vacancies. The forced exit of Anthony Kennedy gave 45 an opportunity he should never have had. The stonewalling by McConnell preventing Obama's appointment, and the general crooked operations of the republicans will keep democrats from getting an edge.
@Euphemia Thompson Read the piece again. Congress can increase the number of justices that sit in the Supreme Court, thus, vacancies.
1
"Add two additional seats to account for the extraordinary circumstances surrounding the Gorsuch and Kavanaugh nominations."
No. Add four: two just to neutralize Gorsuch and Kavanaugh, and two who should be there for positive effect.
Maybe add six: the extra two as insurance against the guaranteed Republican constitutional criminality.
2
maybe winning in statewide, national elections is a better way to influence who is selected for the privilege of serving on the supreme court (and lower courts) that putting a thumb on the scale by packing the courts. democrats need to take responsibility for the right turn in the white house because they were the ones who ran hillary clinton and lost to a reality show celebrity.
5
They don't have to pack it but they need to threaten and plan to pack it and they need the resolve to follow through with the plan. If the resolve exists, Roberts will capitulate (meaning, he will become the swing vote). Exactly what happened with FDR in the 1930s/1940s.
1
How does having one political party pack the Supreme Court solve anything? At best, it's a temporary measure. The next time the other political party gets the Senate and White House they just pack the Court further, and on it goes ad absurdum.
Better to have the Legislative branches and executive do their job and actually legislate, giving the Court less leeway to interpret as they see fit.
4
This is exactly what I have been commenting on regularly. Add more judges and have panels of them selected by lottery to decide each case. Decisions will not be lockstep liberal or conservative.
Additionally why not set term limits for all judicial appointments, no more "lifetime" appointments. One six or eight year term or retire at a certain age. If they feel they have more judging to give, move to a lower court.
3
Pack with what? People selected for old age, sexual variety, lack of competence, willingness to judicially legislate, ability to outrage an enemy, or a specific racial background or a religous bias? What do you pack courts with to achieve a particular preference or point of "justice"?
This is like adding a wing to a house while ignoring the termite infestation.
The system which recommended and supplied judges
Interesting. McConnell broke the rules? Which "rules"? Congress has largely run on tradition fostered by gentlemen having a greater sense of purpose and love for country than themselves. Those days have been gone for a long time so now it's give as good as you get. Lest anyone forget, it was Harry Reid who took an ax to the rose garden first. If the Dems gain power and pack the court to serve their agenda what do you think will happen when the balance of power shifts again? Instead of having the courts be so important, how about both parties in Congress manage to put country first and enact compromise legislation. That's something everyone could get behind.
9
Thanks for making an unwitting justification of a future effort by the Republican Party, should it win back the house, to set the Supreme Court at 15 justices, and then seat another three Gorsuches and three Kavanaughs. Maybe they can make it 17 and throw in a couple of extra Alitos while they’re at it.
The best way for Democrats to do anything is to focus on winning a presidential election. Advocating positions like this does nothing to help with this effort. It’s sore-loserism at its worst and is painfully obvious as such to voters.
When the Democratic Party nominates better candidates (Bill Clinton, Barack Obama), it wins. If Democrats don’t like having seats stolen (as the line of whining goes), they may wish to stop manipulating the nomination process to push forward unelectable candidates. None of this would be an issue had the democratic establishment not insisted on following Hillary Clinton, who may have been the only person in the United States capable of losing an election to Donald Trump, off the cliff.
The recent debates among the democratic hopefuls left me with a sense of dismay. There seemed to be one electable candidate, Joe Biden, being picked on by nine others who appeared to have been sent by Trump to get the incumbent re-elected. It’s time for the Democratic Party, and columnists like this, to stop trying to get Trump re-elected, acknowledge reality, and start advocating positions and nominating candidates that are not toxic to their larger goals.
4
Even acknowledging that we are engaged in a type of 'asymmetric warfare' in which the Republicans are willing to ignore all laws, ethical standards and our Constitution to consolidate and maintain power, I cannot agree that the Democratic Party should attempt to pack the court. Instead, the goal should be to unpack the court by committing to appointing justices based on their proven sound temperament, unbiased adherence to the rule of law, respect for the rights of citizens, and respect for the Constitution itself.
As Michelle Obama said, when they go low, we go high. In this case, going high means working to strengthen and to rebuild respect for our Constitutional order.
No! We need to end the political polarization of the Supreme Court not "pack" it with more partisan jurists. That can only happen if a nominee needs a super-majority (that is, 67 votes) in the Senate to be approved. This will force compromise away from the extremes and toward more moderate justices. Mitch McConnell has done lasting damage to the process first by put aside his oath to the Constitution in the Merrick Garland nomination, and invoking the "nuclear option" to seat a highly controversial judge, Brett Kavanaugh, on the court. The court has lost immense credibility since the its ill-considered intervention in Bush-Gore and the series of hyper-partisan cases that followed from rolling back the Voting Rights Act, Citizens United, and Hobby Lobby cases. If we continue to politicize the judicial branch of our government, we will have lost the steady rudder of fairness of impartial justice that is the very heart of our "rule of law."
Yes, every time we win power, let's become more extreme. If the Republicans do the same, eventually we'll stop having elections at all, and just settle things with guns and bombs.
Jamelle Bouie's idea of a democracy is the last step before democracy is abandoned entirely.
4
But what is to prevent revenge tactics from ballooning the Court to an absurd number, turning into a farcical institution? i.e. Republicans pack 2 more justices their next time around and so on. Term limits for the Court seem like a much more sustainable solution.
1
This necessary civic corrective to the undemocratic, hyper partisan efforts arising from the “win at all costs” dark ideology of the Republican Party should not be referred to as “packing” the Supreme Court, but rather as “restoring constitutional legitimacy” to that separate branch of our federal government.
4
I find it unsettling that Mr. Bouie is carrying on a conversation on this topic right now on Twitter .. and that it is partially carried right here on the NY Times site.
It suggests a Times surrender to the Twitter-verse.
3
2016 not enough?
4
Ahhhh, didn't FDR try this about a hundred years ago?
2
A superb article; I couldn't have said it better myself. You can't play by Marquess of Kingsbury rules in a knife fight. The other side has chosen to change the rules of the game to suit themselves and their 'donor class'. They have chosen to violate their oaths of office to the Constitution and it doesn't seem to bother them at all, not at all. The entente has been broken--by the conservatives. Let them eat dust and see how they like it.
1
Yes, let's pack the court. Two more SCOTUS positions, and greatly expand the Federal judgeship's to water downthe toxin of having minority government from gerrymandering and the archaic Electoral College.
The GOP will talk about "traditions" when it suits them - ignore them. Since the 1960s the GOP is about preserving the white male Christian domination of this country.
5
"Christine Blasey Ford’s friend now says she’s skeptical of Kavanaugh accusation"
9
It's undesirable to alter the U.S. Supreme Court in general. But Trump, McConnell and their Republican Senate enablers are in process of overthrowing our independent judiciary. Not only the U.S. Supreme Court is a problem--Trump and McConnell have compromised all federal courts at all levels.
Their ultraconservative judicial picks do not reflect the legal mainstream. Too many of Trump's judges are right-wing outliers and unqualified to be judges to boot. We have to put brakes on this corruption and it starts at the top by rebalancing the Supreme Court.
2
Conservatives have been the ones to weaponize the judiciary. It’s been a decades long endeavor with strong backing by the wealthy including the Koch brothers. And it’s paid off. A conservative SCOTUS majority most egregiously chose to pick a president, Bush the Lesser, who was asleep at the wheel when 9/11 happened and then foolishly attacked the wrong country. He set the Mideast on fire with flames that are still smoldering. He also put Roberts and Alito on the court.
But the Supremes, now under Roberts control, didn’t stop there. The Voting Rights Act was gutted because we’d ‘overcome’ racism. We soon also learned that corporations are people and money is speech, that the 2nd Amendment applies to personal gun ownership, that union dues are optional, that a Muslim ban is legal, and that partisan gerrymandering is constitutional. We may soon learn that any fake presidential emergency is allowed, but probably only for Republicans.
And Massacre Mitch has now streamlined federal court packing, with nearly 200 new right wing robots installed. Many are poorly qualified and some have been filtered out, but the remainder have been thoroughly vetted to provide rulings there are reliably conservative.
Republicans have lost the popular vote in 5 of the last 6 presidential elections, and yet they feel entitled to control the judiciary. It’s past time for rebalancing to get the representation the majority deserves, particularly those who are women. And time to impeach Kavanaugh.
3
It's time to stomp through the tulip bed of the Federalist Society garden. The next Democrat President should pack the court because:
1. The Republicans used the FBI to foul the nest of justice when they pushed through Kavanaugh who had a sleazy background, poor emotional control and showed himself to be a public liar on television.
2. The Republican's refused to allow an elected black President to name his own justice because of racial animosity against him.
Court packing is the necessary step to help end Republican corruption of the justice system in this country. No honorable man would have accepted a position on the court under the circumstances that Gorsuch and Kavanaugh did.
5
I totally agree with all your points. Well said.
1
At a minimum, Merrick Garland should be put by acclamation, in the Mitch McConnell Memorial Chair on the Supreme Court.
3
Bravo, Jamelle! But I would change the wording from "packing the court" to retribution for GOP crimes.
2
I prefer the term rebalancing and appropriate to recent demographics.
Why not put a hundred in? I mean, if you are going to throw out morals, standards and tradition, then really do it. Show the country what you really think about the courts.
4
It's long past time for Democrats to start playing hardball with Republican crypto-fascists. If they manage to take the Senate, they should increase the number of Supreme Court justices to 15, impeach Kavanagh (lied under oath) and Gorsuch (illegal appointment); make gerrymandering and voter suppression illegal (and prosecute state GOP criminals who practice it); make Election Day a national holiday with paper ballots and generally undo everything Trump and McConnell have done. And if Republicans object Democrats can tell them to crawl back into the hole they have come out of. What's good for the goose is good for the gander, and for Republican criminals, turnabout is fair play.
5
Hmm, so a Democratic Congress packs the court with leftist justices, and sometime later a Republican Congress packs it with rightist justices, and so on. Having 49 or 99 justices would keep Marsha Coyle busy!
1
Consider that if the president had no role in the composition of the federal courts, "gun grabber" Hillary Clinton would be president.
Expanding SCOTUS will make every future election about control of the courts, which means the candidate themselves will matter less. This would mean more wannabe gangster reality TV show presidents may be in our future because people will the president as little more than an annoying judicial Pez dispenser.
The goal should be to separate the federal elections from SCOTUS as much as possible. A Constitutional amendment mandating a minimum age of 60 for SCOTUS might help lower the stakes of any one appointment.
1
The last time packing the Supreme Court was tried Franklin Roosevelt was president and it did not end well for him.
Kavanaugh and Gorsuch are good justices whose only sin in the eyes of Democrats is that they are "originalists" who believe that the Constitution means what it says and should not be twisted into supporting the Democratic agenda.
So if you want to remake America try winning elections with candidates that support your positions. When to lose an it because the voters disagreed with your policies or they didn't like your candidates. I'm so tired of your lecturing, whining, bullying, tolerance of antisemitism and support of anti-Israeli polices that I will vote for Trump simply out of anger.
2
That is what originalists say they do, but just look at the Heller decision by the great originalist Antonin Scalia. The first time the court extended the second amendment to apply to private citizen gun ownership. Ignore the part about well-regulated militias and why that was important in the day. To claim that this was the original intent of the second amendment is a real stretch for me.
It seems like a good yardstick to use, but they seem to interpret the intent of people who lived 250 years ago however they want.
The most intelligent response I have seen to this column is here: https://www.nationalreview.com/corner/civic-miseducation-from-the-new-york-times/
Mr. Bouie seems to think democracy is great - except when it isn't - e.g. Roe v Wade (as mentioned in above) or Obergefell v Hodges - which overrode a democratically voted ban on homosexual marriage in California - the most woke state I know of.
He - and all progressives - want an activist supreme court to enforce progressive policies that they can't achieve any other way.
5
Lincoln, as quoted by Mr. Bouie, had it right, as usual. The Supremes have become a Tribunal, steering the government in ways that the people have not chosen. The minority conservative judges should not have the right to disregard the will of the majority of the people. The intention of the Constitution has been undermined by partisan politics.
Since we saw how even FDR was defeated in his attempt to pack the Court, in his effort to protect his New Deal reforms, it is not clear whether Mr. Bouie's idea will work, but it is very clear that something needs to be done to harness the power of this unelected oligarchy who now have the final say on almost every aspect of American life.
Like other ideas of the Founding Fathers, lifetime terms have clearly become an out-dated idea of the past, especially when these justices are often appointed through dubious and political processes. I agree that the Democrats need to get tough to put a stop to this dangerous situation.
If this is a representative democracy, then why are these judges not representative of the people?
Wouldn't it be better to amend the Constitution to require elections of these judges to limited terms? At least then we wouldn't be paralyzed for generations by extremist rulings on either side.
1
Merrick Garland, the end of the filibuster rule, the Kavanaugh nomination - politicians seem to be doing everything they can to destroy the legitimacy of the Supreme Court as a relatively non-partisan body everyone can turn to for an honest application of the rule of law. Mr. Bouie proposes something that will kill it.
Much better to replace the conservative Thomas with a 35 year old liberal and two more of the same for Ginsbug and Breyer. Never nominate anyone over 40 again. Then if you get lucky and one of the other arch conservative gargoyles leaves, you do the same. No more of this keeping the composition of the court even drivel. Court packing won't work -- it will just feed the grievance machine.
"Just to even win power, Democrats will have to overcome major structural obstacles, from the Electoral College in the race for the White House to a Senate that gives disproportionate representation to the most conservative areas of the country."
Sigh.
The Electoral College is not a "structural obstacle." It's THE Constitutionally-mandated system for ensuring that the interests of more-populous states don't consume the interests of smaller states. As the saying goes, democracy is two wolves and a sheep deciding what to have for lunch.
Speaking of states' interests, last time I checked, every state had exactly two representatives in the Senate, where their job is to to protect the interests of the states they represent (and not the people in those states). Proportional representation of the people's interests occurs in the House of Representatives. (Pro Tip: Senate + House of Representatives = Congress).
And folks wonder why the progressives are routinely labeled as "unhinged"?
8
To those who suggest that the Republicans would merely respond by packing it themselves: the Republicans already have.
5
The author is completely off base. Trump will likely be re-elected and Republicans virtually guaranteed to keep the Senate. When that happens Trump will appoint another Supreme Court Justice and completely control the Federal Courts. The Democrats will naturally be marching in the streets and doing other important very earnest stuff.
6
@Bananahead Good point. Wonderful to see some analytical thinking here. Numerically, if one more conservative were to be added to the SCOTUS - making it 6:3 - Democrats would would have to add 4 more liberals/progressives to be in the majority, increasing the number of justices to 13 in total.
If Mr. Trump wins re-election and has an opportunity to appoint one more justice to the court, court packing - already close to impossible - will become more so.
The need for an independent judiciary is absolute, and this court packing strategy amounts to a voluntary abandonment of further efforts to have such a thing. McConnell and the Republicans have been deliberately trying to weaken the court by making it biased with fanatical reactionaries to satisfy the anti-liberal religious right for half a century. With Trump they have filled the federal judiciary with fanatical reactionary jurists. So the temptation is strong to somehow foil the conservatives but the packing is just going to make it worse.
3
Instead of trying to put people who will legislate from the bench, try and have the President and Congress govern. Much of the action is at the State level because Congress is such a pathetic group. The Clinton Presidency and Congress actually made progress. Obama made the ultimate tactically wrong decision by pushing thru Obamacare unilaterally and losing Congress in the process. For 6 years, Obama moved to government by fiat and Trump used the same approach only 5x worse. Trump 2.0 will make Trump 1 look sane. Unfortunately, Warren epitomizes Trump from the left and will govern thru intimidation and the bully pulpit. Biden is perhaps the only candidate who has a chance to bring a divided country and congress together.
60
Trump will have a field day with Biden--an easy target for ridicule--and something the media can't wait to perpetuate. Wake up: there is no middle ground in the US. The best hope for balance is a teetering from right to left over and over again. Only a revolution or a sea change in the complacency of the General American Public will reset the rules for true balance, and neither of those things are going to happen. Warren or Harris are the best hope to expose Trump on the stage. They might also be the 2 candidates for whom Trump's cutting remarks will be least tolerated. The Dem field is weak. 4 more years. Hopefully Ginsburg will make it.
15
@Chris This is the first intellectually honest comment I have seen in this thread. We may differ ultimately in who we vote for, but bravo for not being deranged and calling everyone a fascist while simultaneously listing a Bolshevik manifesto to cure politics.
3
@Chris Nothing you've written squares with reality. Obama's mistake was thinking the Republican opposition still believed in democracy. He should have realized that the 2000 stolen election proved beyond a shadow of a doubt that the Supreme Court was not a neutral arbiter and democratic norms were now out the window. Obama's mistake with the ACA was caving in to demands from the GOP and health insurance providers in an attempt to compromise. Obama did not realize the Republicans of today view the Democratic Party itself as illegitimate and will never accept Democratic rule.
Apparently you are under the same delusion.
49
Perhaps instead of hardball, democrats could try the even more radical concept of voting in midterms.
5
Just watched Cory Lewandowski, following orders from the president, stonewall the Senate Judiciary Committee with the gleeful support of Republican members. It was essentially a replay of Mueller's "four-corners of the report" testimony, with similar stalling tactics to run out the clock and Republicans trying to shut down the hearing on parliamentary technicalities. What this proves to me is the lengths Republicans will go to protect their president, no matter what he may do. If issues like getting honest answers to relevant questions have to go to the SC over and over for Congress to do its job, we are a doomed democracy.
3
As reprehensible as McConnell, Trump, Kavanagh and Gorsuch are - as thoroughly as I think they've disgraced their offices, their oaths of office and the constitution they're supposed to uphold, and as much as I think they deserve condemnation, impeachment and in at least one case, incarceration - the headline for this editorial is deeply troubling to me.
It seems to me that the real foundation of American conservatism is resentment of the left. Not freedom, not individual responsibility, not an aggressive foreign policy, not any caricature of traditional values, but a deep, visceral dislike of liberals and progressives. I think this resentment is at the root of the moral rot that's taken hold among them for the last 30-40 years and especially the last 5-10 years. And I see the same kind of resentment, directed at people on the right, taking hold among more and more politicians and pundits on the left.
By all means, let's fight their agenda as hard as we can. I believe Trump should be impeached and belongs in prison for many of the things he's done before and since his election. I think the impeachments of Neil Gorsuch and Brett Kavanagh merit serious consideration. But let's keep our focus squarely, completely on building a better future for all Americans and being responsible citizens of the world. Let's never let our goals devolve to 'getting even.'
3
@Joe
And exactly what would the grounds be for the impeachment of Gorsuch?
1
@GMooG
His nomination was illegitimate and his justiceship is illegitimate (in my opinion, he should also be disbarred.) There's a legitimate nominee, Merrick Garland, waiting for a hearing and a confirmation vote.
Mr Bouie:
Are you really suggesting that because Dems can't win elections that they must change the rules of the game to win?
13
@James
Dems do win elections.
Did you ever hear of Gerrymandering, or, The electoral college?
It's the republican way of nullifying elections.
5
In other words, let’s have a dictatorship of the majority. Democracy is not mob rule. Democracy is about protecting the rights of the minority and having a system of checks and balances that prevents the majority from having its way. If the sole criterion of democracy is that more people support the ruling party than not, then the most democratic countries of the last 100 years are the Third Reich, the USSR under Stalin, and Putin’s Russia. Incidentally for those who elevate FDR into an example to emulate - he belonged to the same historical period and the same totalitarian mindset. I don’t like the current composition of the Supreme Court but before Democrats contemplate a judicial coup, perhaps they should try to win the presidential election. Advertising their anti-democratic agenda is not the way to get there.
7
Gorsuch and Kavanaugh should be given the opportunity to resign, Gorsuch because he occupies a stolen seat and Kavanaugh for his impeachable lies to Congress. That would keep the count of Justices the same.
Bouie makes a convincing argument but it should not be construed as ‘court-packing.’ The nation has dramatically changed since the last Judicial Reform Act in 1867. That last Act reduced the SCOTUS from ten Justices to nine, created the Circuit Courts of Appeal, created (for the first time) US District Courts, and allocated staffing of Judges based upon the demographics of 1865. Do I really believe that our nation is now made up like it was in 1865?
I have no doubt that the very next time Democrats win the Trifecta (WH, Senate & House), they will permanently eliminate Senate Rule 22 (Cloture & Filibuster). I also have no doubt that the SCOTUS will be increased to 13 or 15 Justices, and that both appointment-cycles and term-limits could be imposed, all by statute. With Scalia and Douglas in mind, the Congress could also impose BFI (weight) and Age limits for appointment. And all without a Constitutional Amendment.
1
@Jonny207
As to term limits and appointment cycles, which are a natural outgrowth of term limits, one runs afoul of Article 3 Section 1 of the Constitution, which stated "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour" Getting old is not bad behavior., nor is having been in office a certain number of years. A Constitutional Amendment is, unfortunately or fortunately, needed to change this.
1
@michaelscody, Michael, I appreciate the Article 3 overview. What I was alluding to was Congress’ ability to statutorily impose mandatory retirement ages in different federal offices, and to set salaries for all federal offices. I was also alluding to the Judiciary’s ability to create limited-duty Senior Status for Article 3 Judges and Justices, and to internally manage their own caseloads and assignments. I believe all of that could be accomplished by statute, but its propriety would be reviewable by the SCOTUS itself after such a Judicial Reform Act went into effect.
Some 25 years ago I never would have believed that a (retired) Pope Emeritus was possible.
@Jonny207
Interesting concept, but as the review would be by the very judges the law would force to retire, I have grave doubts is would survive due to both the letter of the law and the self interest of the judges reviewing it.
The only one of the proposals that would have a good chance of survival, in my opinion, is the right to set salaries, and any attempt to set up a multi-tiered salary system for older judges would run into age discrimination difficulties.
Pack the Supreme Court? Of course. But add 4 new justices, not 2. If that creates an arms race, where each party packs the Court when it wins both the presidency and senate, so be it. Progressives haven't controlled the Court in generations, so there's nothing to lose and much to gain.
2
Packing the Court is a temporary solution. As others have said, when to the GOP is in power again, they can always pack it further.
What we need is a constitutional amendment with two parts. The first part would set a deadline for the Senate to confirm or reject a nominee, and if the deadline is not met, the nominee is automatically confirmed.
The second part would end life tenure for federal judges and establish a fairly long term length -- 14 to 18 years. Life tenure for judges was established when people didn't live nearly as long as they do now and the Framers could never have intended the country to be judged primarily by the elderly. (Most of them, in fact, were in there 20s or 30s).
With such an amendment, the process of confirming judges would be fairer partly because the stakes wouldn't be so high.
2
I agree the Dems need to start being as ruthless as the GOP, but packing the court will only set off a court-packing frenzy with each handover of government. In 100 years, there will 263 judges on the court!
54
@Jim maybe I’ll get to be a judge and get good health insurance for my family. Let the packing begin. Do you think I’ll need a law degree?
17
@Jim, in a hundred years I do feel we'll have some more pressing concerns. We need to focus on our own miserable life stretch and that is already a tall order.
7
@Dg. Easier to just quit your job and get ACA paid for you by others.
3
didn't this backfire when FDR tried it?
ps: I find it insulting that people like Kavanaugh reach one of the highest positions in the world. Regardless of right or left, don't we have better, more moral, more inspiring people to appoint to these jobs?
And sadly, the court no longer looks like America- a multi-racial, immigrant rich society. Yet another spoiled privilege kid gets the goodies.
Where is the compassion for 'the people'?
Sadly the very people who voted for Trump are succeeding in undermining their own future and the future of their children. But when the real payback comes, they will blame whatever administration in in power at that time, rather than looking at the 'impulse vote' that they cast.
4
@AG No. It just didn't work. A couple of senators defected and declined to confirm the act. It was, however, imminently successful in persuading the existing Court to broaden their minds a little bit, so in that sense it did exactly what it was supposed to.
2
Imagine a scenario where the Dems win everything in 2020,one of the 5 Conservative justices dies or retires and the progressives get control of the majority.Now imagine that down the line the GOP is back in power.Anyone out there think they wouldn’t immediately pack the court?
4
@Basil papaharis
Yeah, plenty of people think that because that's they wouldn't try it. Has the Filibuster been removed yet for normal legislation? Could it have been? Will it be if the Dems ever get control of the Senate? Enough said.
1
The straw that may absolutely break the camel's back of our constitutional legitimacy may be a situation in which the Democratic candidate wins a resounding majority of the popular vote, but the electoral college vote goes to Trump by a hair, and there is plausible evidence of real shenanigans in certain swing states, including but not limited to voter suppression, voting-machine hacking, vote-count hanky-panky, or even "faithless electors," and, as in 2000, the election result ends up being called by the current Supreme Court.
Also, let us fervently pray that Ruth Bader Ginsburg hangs on till we have a Democrat in the White House *and* a Democratic majority in the Senate ... while sorely lamenting that she did not have the patriotic foresight to retire gracefully during the first years of the Obama administration. That would have allowed him to play the same kind of hardball as the GOP is now doing, by appointing a younger progressive to the Court.
4
I find it ironic that the US is unraveling due, in large part, to the very system it has sought for over a century to impose on other countries through means fair and foul and very foul.
Karma
2
It's fantasy to think that Democrats can reverse the slide to plutocracy in the short term.
The confirmation of Justices Gorsuch and Kavanaugh has handed effective control of the Suprhaeme Court to the plutocrats. Trump's next SCOTUS appointment - replacing RBG - will cement that.
As Mr Bouie notes in his piece, Trump has already effectively remade the Federal bench. The makeover will continue unabated in Trump's second term, all but ensured given the large ($2+ billion) and growing GOP presidential war chest.
Democrats need to recognize, as Mr Bouie hints, that even in the unlikely event they win the WH or Congress in 2020, they will not be able to govern. The Democratic strategy needs to be long-term. Win control at the local and state levels, then do what the GOP has done: Gerrymander the hell of each state to ensure that you have the control needed to implement your long-term plans.
It will take time but it's really the only way to move the country back to democracy.
@Gp Capt Mandrake
Here is a more likely scenario.
RBG continues to thrive and Trump is defeated.
A Democratic President will be able to replace a couple of liberals. My guess is RGB will retire as will Stephen Breyer.
That preserves the current 5-4 situation.
Assuming a Democrat can serve for 2 terms, there is a good chance that Thomas and Alito may pass away (both are about 70 and would be approaching 80 during a 2 year Dem term) or retire, thus permitting a Dem majority.
2
The judiciary should systemically expand — or be allowed to contract—- according to the population. The number of judgeships should be adjusted at every level after each census. A law providing for this approach would have a better chance of yielding a rational and politically defensible process than would packing courts piecemeal.
2
Right on, Mr. Bouie! If we are fortunate enough to replace Trump with a Democrat and he or she does NOT pack the Court, it is clearly time for a new party.
Before Democrats can be elected to restore balance to the federal courts, vast swaths of the uninformed, uninspired, hopeless, cynical and disengaged electorate need to reached. These are mostly the young, the working poor and people of color, but also much of the struggling middle class. Forty years of Republican anti-government, anti-tax, pro-capitalist, trickle-down brainwashing has done deep and wide damage to Americans' faith in democratic government to improve their lives. Don't expect anything from your government and if you do, you're a "taker" of "free stuff." You don't need your government. Your government can't be trusted. Your government will just screw things up, take your hard-earned dollars and give them to "those people." We're even to the point where career federal employees with comfortable incomes, rich benefits, job security and rights, and pensions hate "the government" and vote for "small government" Republicans to de-fund the very agencies and programs they work for. Elizabeth Warren is bringing the case that our government should work for all of us. But there is still shame for even expecting that.
2
Court packing is a short term strategy. The control of Congress goes back and forth. It always has. There is no reason to believe this pattern will change. The best way to initiate change is to get needed legislation through Congress. This takes time and patience, but in the end quality legislation lasts, e.g. The Civil Rights Act. Quality, long lasting legislation requires working with the other side of the aisle. Sorry, but there are no short cuts.
1
The obvious counterargument that might give Democrats pause is that Republicans will retaliate when they next hold the Presidency. But that underestimates the potential Republican response. The Republicans could strike preemptively.
After the election, it will likely be clear whether there is enough Democratic support for packing. If it appears that the President-elect will support packing and has a good chance of getting sufficient support in the Senate, Republicans will be outraged. And why should they wait until next they are in power? If they believe that the Democrats will add four seats (to fully offset Gorsuch and Kavanaugh), the Republicans could fully offset that by adding four of their own. Of course, the Democrats could then retaliate by adding eight instead of four.
The result of such escalation in the long term would be a Supreme Court that is just another political branch. Probably it would benefit Republicans in the long term more than Democrats because on the whole, the Supreme Court has done more to support liberal causes than conservative ones. The Republicans have less to lose.
Will this happen? Almost surely not. But only because some Democrats will announce their opposition. Republicans opposed a plan to pack the lower courts in the Trump Administration, and at least some Democrats will similarly reject this escalation. It will thus be clear to Republicans that Democrats will not in fact seek to pack, and no preemptive strike will be necessary.
2
Democracy is not working, has not worked in our country for quite a while. A recent study shows no correlation between the desires of a large majority of citizens on many large issues and what government actually does on them, ie, gun control.
So forget the niceties of tradition and precedent in governmental procedure. That is like arguing about what the proper air pressure should be in a blown-out tire.
The most significant legislation in recent years has come from the Roberts Court, not the legislature. The Democrats should start there by packing the Court, then introduce bipartisan legislation to end lifetime appointments and restrict the Court to interpreting laws rather than writing them.
1
Add members to the court, but please stop referring to it as packing. That's a conservative meme from the 1930s that has no use in any present-day, rational discussions about the size of the supreme court.
4
It's interesting. The left proclaims that Trump's admin has attacked the pillars of our democracy, our most cherished foundations.
Yet, here we have an argument for packing the supreme court because the whiners on the left don't like the current configuration.
We've had demands to rid ourselves of the electoral college all from the left.
The left has repeatedly sought to find some way to disenfranchise those who voted for Trump by somehow overturning the results of the 2016 election.
Then we've seen institutions like this one turn from a respectable and objective source of information to a partisan firebrand, completely invalidating the whole point of freedom of the press. When you can publish undocumented allegations such as those about Kavanaugh published in the NYTimes over the weekend, that isn't an exercise in freedom of the press, it's character assassination.
And what was that tepid editorial comment placed at the end of that fallacious article after the comments were closed and most were no longing reading the article. That should have been a front page retraction.
So which side is assaulting our institutions?
10
What a foolish idea that reeks of anti-Democratic authoritarianism -- not to mention the spoiled behavior of sore losers.
Lose an election? Don't accept the consequences, change the rules the country has lived under for decades, be it the electoral college or the size of the federal judiciary.
I could see this idiotic gambit play out over coming decades -- Democrats bump the court to 13 and appoint four more liberals. The Republicans gain control, and change the number of seats to 19, and add six more conservatives. And so on.
Who believes either side would live for one cycle with a majority imposed by the other side? We'd end up convening the Supreme Court in the stadium where Washington's football team plays (currently the Redskins, but under this scenario whatever a far left court orders them to be named -- maybe the Pigskins!)
8
@Philboyd
Phil, when Obama won, Moscow Mitch did change the rules, much like a sore loser. He began issuing blue slip rejections of Obama nominees in bad faith and utterly upended a process by which judges had been selected for roughly 100 years.
When Democrats have no other card to play, they seem to love pulling the sexual harassment card from under their sleeve. At the Clarence Thomas hearing, Anita Hill gave up two names, Nancy Fitch and Allyson Duncan, that she said would corroborate her story. Not only did neither corroborate her story, Fitch actually went on to testify on behalf of Thomas. Last year, we had a doubling down with not two, but four witnesses who we were told would corroborate the story. In the long run, four non-corroborators are just the same as two; the net sum of evidence is still zero.
As far as this court that Bouie claims is now so conservative with Trump's picks, nothing could be further from the truth. In the NYT's own pages (linked below), it clearly shows that Kavanaugh's net "bias" was almost perfectly on the neutral line with Roberts (and Gorsuch wasn't too far off as well). Of course, Obama got to replace not one, but two Republican nominated justices in his first term (Souter and Stevens). While Kagan was the least left of the bunch, she still voted with more left-wing bias than either Gorsuch or Kavanaugh were right (again, follow the link below for proof of this). In fact, Sotomayor voted with the most left-wing bias of them all, including RBG. You don't need to pack the court; both the Democratic and Republican appointments already balance things for you.
https://www.nytimes.com/2019/06/29/us/supreme-court-decisions.html
4
@Independent Observer
Really, didn't the Republicans try to impeach Clinton over this issue.
Or how about the Republican hit on Al Franken.
How about Donald Trump attacking Joe Biden for harassment (that one is pretty funny).
By the way, Souter and Stephens may have been appointed by Republicans, but they were moderates to liberals on the court.
@Texas Duck "Really, didn't the Republicans try to impeach Clinton over this issue."
No, they impeached him for lying under oath. Also, Clinton brought this upon himself when he lied to the American people on prime time television. With Clinton, there was no doubt as to his guilt, which he had to admit later on.
"Or how about the Republican hit on Al Franken."
I don't know. Why don't you ask Kirsten Gillibrand?
"By the way, Souter and Stephens may have been appointed by Republicans, but they were moderates to liberals on the court."
No kidding. That's how things usually work on the court. The Democratic appointees mostly vote left-wing while the Republican appointees are often moderates (or liberals, like Souter and Stevens).
The hard left is upset they can't get their left wing jurists to the courts so they call Republican nominations all kind of crude appointments at the same time calling all their supporters the same. Feel sorry for any deplorable that has opposing political opinions Jamele Boo.
4
I agree completely. marymary and her ilk reveal their hypocrisy. The GOP has already been packing the courts for years. And as a result, a minority is controlling majority-supported progress in a democracy.
1
Print diverse opinions. Radical opinions expressed with civility is key to diversity of opinions.
3
Try winning elections, Jamelle. Liberals have handed the GOP 4 Supreme Court seats since 2000 by voting for people with absolutely no chance of winning. Liberal protest votes are the problem, and abuse of power and circumventing our political and constitutional processes is not the answer.
7
Heck yes! Republicans stole the 2000 presidential election thanks to a partisan supreme court, stole a supreme court seat, and then stole another presidential election. Had it not been for Republican theft, there would be a strong majority of progressive judges on the supreme court. We would not have Citizens United, loss of Medicaid coverage for millions of poor people, red state voter suppression, extensive gerrymandering, weakening of women's reproductive rights, and much more of the democracy-destroying trends that have been brought about by supreme court activism. People's lives are in the balance. The ecological ruination of Earth is in the balance. Progressives cannot allow Republicans to kick sand in their faces any longer. There is too much at stake.
7
Wow, pack the Supreme Court! Then ram through 'Medicare for all' eliminating the need for private medical insurance while raising my taxes and confiscating my guns...and don't forget the slew of new laws dealing with the upcoming supposed climate 'catastrophe' along with diluting my vote by allowing into the country millions foreign nationals to tip the scales for Democrats. 2020 couldn't be here soon enough!
7
@Deb
What a great bunch of ideas! and you're right, 2020 can't come soon enough.
3
Oh, right. Exactly. Because we didn't have an election.
Or: Elections shouldn't have consequences, unless your side wins.
Got it.
5
Be careful what you wish for.
What if the Republicans sweep the next election cycle and use articles like yours as an excuse the go ahead and expand the Courts, including the Supreme Court and the 9th Circuit, for example, and proceed to name 6 new justices to the Supreme Court, along with replacing 2 existing liberals?
How would you like to deal with a 13-2 conservative majority on the Court that would take 100 years to overcome?
Your idea is bad-period.
4
Then there will be a split of Res and Blue United States.
Good riddance will be the exclamations from both sides. There are plenty of ducks the Blue USA can import from Canada.
1
Every administration, Democrat or Republican, attempts to pack the court. The divergence has been that Republicans, following the lead of that pernicious and self-confessed subverter of the Constitution, Mitch McConnell, were willing to bend the rules to do so. The legitimacy of the Roberts court has already been compromised by the presence of Gorsuch, so, yes, let’s bend the rules back...increase the Justice count and restore the conservative/liberal ratio to what it would have been without Republican bad faith. As regards consequences, the partisan division in government is already irreparable and the consequences of failing to take corrective action will be just an accelerated slide towards authoritarian executive abuse, racist domestic policy and religious bigotry.
1
I mean, say what you will about the basic argument, it's nonsense to complain that packing the courts would be changing or breaking "the rules". It is precisely in line with "the rules", the constitution, etc. And as for the claim that this is all just Dem whining about not winning, um, the whole proposed scenario is based on a total Democratic victory.
My SCJ nominee: Michelle Obama
As a DC resident with no representation in Congress, McConnell's cynical manipulation of true Democracy is particularly painful. Because I have no Senator or House Rep, the presidency is particularly important to me. McConnells communication to me is clear: you don't matter, you don't count for anything, you have no voice. For that, I think he should be impeached.
121
@Barbara Good idea. No one could possibly be more qualified for the Supreme Court than a woman whose single notable accomplishment in life was to marry well. After the Democrats pack the court and the Republicans later take power again and pack it further in the other direction, perhaps Melania will get a turn too!
10
@Bob She's more qualified than Kavanaugh.
12
@Bob: Hardly. Mrs. Obama graduated from Princeton and got her J.D. at Harvard Law School. She worked at a law firm and was associate dean of Student Services at the University of Chicago, etc. Melania Trump's qualifications: "Be Best".
17
What a reckless, and dangerous proposition.
4
It us called Game Theory. People won Nobel prizes for it.
1
This will never happen. Republicans walk all over Democrats with no consequence whatsoever. And why wouldn’t they? The general public is comatose. They were obviously not sufficiently outraged by Mitch McConnell’s stealing of a Supreme Court seat in 2016. In fact, Republicans even said that if Hillary Clinton were elected that they would still refuse to allow her to nominate a Supreme Court judge. We’re in this situation because the public is largely apathetic and ignorant. They don’t see how the Supreme Court can impact their lives.
1
Mr. Bouie fails to consider the inevitable consequences of his thesis...the Dems add two Justices, when Repubs are back in power they add two, or 4...where does it end? The Supreme Court isn't the venue for redress by quantity, for it will surely render it an unwieldy and bloated caricature of itself.....
@Dennis Holland
Breaking news:
By a thin 551-550 majority vote, the Supreme Court ruled ......
I'm okay with eliminating the electoral college provided that no one whose family has not been here at least 4 generation is allowed to vote.
1
As others have pointed out, what will happen if
the Republicans win back the Senate and the Presidency ?
Will they add three Justices to negate the two new
Democrat Justices ?
When will the contesting ever end ?
Could Congress just eliminate the new positions and
eventually reduce the Court down to three Justices...
one Justice ?
The 9th Circuit Court needs to be broken up, it covers
far too many States.
Judges and Justices should serve for a maximum of 12 years.
That is long enough to have the "Final Say" on national issues and whether a condemned prisoner spends life in prison or is executed.
Meanwhile, go back to needing 60 votes to be confirmed.
Enough of political extremism in the appointing of Justices.
1
"The primary question, of course, is not what Kavanaugh did in college but what he said about his actions when speaking under oath to the Senate Judiciary Committee." And further: " 'Perhaps the most chilling line in Kavanaugh's speech was, 'what goes around, comes around.' He did not say it with any evident sadness, nor did he renounce it as a value,' Jonathan Chait wrote in New York magazine. 'Here was a man apparently threatening revenge on his political enemies, and asking for a lifetime appointment with supreme power of judicial review with which to do it.' " (Politifact, 4Oct2018) "Whatever happened between Brett Kavanaugh and the women who accused him, this much is known beyond any doubt: he denied the allegations on national TV not in a sober, clear, calm, direct, and unequivocal manner -- that is, in the way that a person of honor and high character might have -- but with a shockingly injudicious and sneering accusation of a political conspiracy by those who opposed his nomination, all in violation of the Code of Conduct of United States Judges' rule barring 'inappropriately partisan statements.' One needn't have taken a position on the merits of the women's accounts to know that Mr. Kavanaugh was unworthy of a lifetime seat on the Supreme Court." (Comment by Paul Horvitz, NYTimes) Add in Mr. McConnell's abuse of power involving this appointment, and the non-partisanship of the Supreme Court is out the window for the lifetime terms of Mr. Kavanaugh and Mr. Gorsuch.
2
Playing hardball doesn't work when the other team is cheating.
@Randall. What cheating are you talking about?
Democrats did have a liberal court, now they don't. Such is the ebb and flow of politics. What's so hard to understand about that? Adding judges is as ridiculous as getting rid of the Electoral College. Good grief. If Dems put up smart candidates and a platform that benefits the entire country, they'll end up on top again.
5
It sounds like a good plan but unless the Dems win back the Presidency and the Senate it's a moot point. But I agree with the hardball approach. It's time to take off the gloves and start calling out traitors to their faces in public on TV and all other media. Enough with the "decorum" of the Senate and the "honorable colleague" guff. I just hope RBG stays healthy until the next general election.
1
@markd. You probably need to look up the definition of traitor. Maybe you will see a picture of McCabe.
That's great. SO your solution to Trump packing the court is for Democrats to...pack the court. That's original. Instead of each side digging further into the sand, how about we try to each take a step back and find constitutional moderates that would make decisions based on legal theory and not political agenda (like this column).
1
Unfortunately, there's no such thing as "Democratic hardball". In this particular case, that's a good thing.
The author cites Chief Justice Roberts as having denied Medicaid. Of course, it's the Red States that are doing this, and in any case, Justices Breyer & Kagan concurred with that decision. And Roberts was the one who saved the ACA in general, so he should be lauded.
As for the author's advocation about packing the Courts, I agree wholeheartedly. It's completely "constitutional", and that is all that matters.
1
Mr Bouie's main objection appears to be that the checks and balances in our Republic along with a more conservative Supreme Court are preventing the larger number of Blue State residents from using the Federal Government to run roughshod over the Democratically elected Red State governments. This is exactly the scenario that smaller rural states feared at our founding and why we have the Electoral College and Senate compromises in our constitution. Maybe NY and CA should spend more time on effecting change within their own states and less time trying to force Red States to aquiesse to Left Wing ideology.
5
Mr Trump's government wants to overturn California's clean air standards. I assume you object to such federal interference in a state's right to set air quality standards.
1
@M. Carpet
CA has every right to set its own standards for what cars can be sold and or licensed within its own borders. It has no right to consider or attempt to influence what get's sold or licensed in other states.
Left ideology? That actually has a name: Democracy.
What we have now is an oligarchy legitimized by an archaic constitution and electoral college penned by slave owning patriarchs.
Time to get rid of the American Rhetoric which is as stale as last week’s fish.
1
FDR (my hero) found that packing the court was unconstitutional. Besides, Republicans could do it too.
What we sorely need is reform of the Senate. Mitch McConnell actually succeeded in making Obama a one term president--viz.,he did not have the power to appoint a Supreme Court justice. His health care bill was watered down in Congress until it became a Republican plan and a gift to insurance companies.
No Senator was meant to be more powerful than the president. The Senate as constituted keeps us from being a democracy. Montana and Rhode Island should not have as many Senators as California. We need a constitutional amendment to reform the Senate AND the process of amending the constitution and the Electoral College, Only thus can we go back to being a democracy as we were when state populations were more equal.
2
“ A switch in time saves nine” was the phrase that kept Roosevelt from his court packing proposal. Justices flipped votes on some key cases and saved the nine as the number of Justices. Don’t think we’ll get a repeat of that unless Chief Justice Roberts becomes that Justice.
Mr. Bouie is angry, and it is easy to sympathize with him. But the matter that he addresses is not something that will yield to the bludgeon he proposes. Rather, the problem is that democratic institutions whose successful functioning rests largely on the comity of unwritten rules have become badly frayed and are in the process of disintegration. This has come about due to the elevation of bad people to positions of responsibility, people who value preferred outcomes at the expense of essential democratic civility. The remedy is to replace these malicious actors with good people, whether liberal or conservative. Sadly, given the electoral mechanisms that we have to work with, the prospect for achieving this is quite dim. For those who think that this is a much too stark conclusion, watch the Lewendowski testimony now in progress before Congress. Hanna Arendt’s observation on the “banality of evil” would seem to apply.
Thanks so much for writing this - superb and historically grounded analysis.
The Republicans no longer even try to mask their ideological war against democracy and progressive values.
The Democrats must not only play hardball, but begin to understand and frame issues ideologically - just listen to Bernie!
I have no problem with Congress expanding the number of judges on the Supreme Court to avoid the stranglehold that the right wing conservative judges have or may have on the Court. What I do object to is "packing" the Supreme Court with liberals. Two wrongs don't make a right (or a left). If the Democrats "pack" the Court with obvious left-wingers we are on the way to chaos. Appoint a sufficient number of justices who are not ideologues, to offset any current justices whose primary goal is to further their ideology rather than to apply neutral principles of law.
1
Minority -elected presidents have set up a conservative court which has already diluted our democracy with Citizens United and its failure to address egregious, partisan gerrymandering. Garland's blocked nomination had no precedent, as Bouie points out. The author of one comment pointed out the risk of court-packing as a solution. Add two judges with with a Democratic trifecta opens us to the risk that the Republicans will do likewise if/when they win back the white house and senate. Then we will have 13 judges. At what point will the supreme court have been rendered into a partisan joke? Tragically, such an outcome may already have been realized -not only with Citizens United, but Bush v. Gore in December, 2000. With the existence of the Republic hanging in the balance, Lincoln suspended habeas corpus -- clearly unconstitutional. History has confirmed its necessity. Bouie, to his credit, does not suggest "court packing" casually. He understands its risk. Thus, his suggestion of only two additional judges. Many believe we face a crisis as grave as Lincoln faced -- climate change. Should the present court, in the name of a partisan constitution interpretation, block measures to institute necessary environmental measures, we will be faced with a government whose tools for survival have been nullified by a conservative court majority picked by a minority - elected government. Responsible, democratically elected leaders cannot allow that to happen.
The solution to so many of our gridlocked politics is term limits. The President is limited to 2 terms. Representatives, senators and federal judges should also have term limits.
2
What problem does that solve? With that. solution government will be left with experienced lawmakers in every position. Better would be to put statutory safeguards around legislators and lobbyists, limit campaign funding and continue to let voters choose whom they want to keep.
1
That is not a road you want to start down, especially in this balkanized day and age. The consequences would be . . . severe.
3
Pack the court but with nominees like Merrick Garland ... for the court's sake not the party's.
Agreed. We can no longer trust the courts with these types of unqualified judges.
4
FDR tried to pack court and his own party, the Dems, said NO.
This type of thinking is dangerous and harmful to the country.
We are at an impasse never seen before.....
3
FDR was able to pack the Court because he was elected President for 4 consecutive terms. The 22nd Amendment limited a President to 2 terms. The FDR model will not work for any future President.
2
Thomas, Kavanaugh, and Gorsuch should all be removed by a Constitutional process -- impeachment.
Thomas lied to the Senate Judiciary committee during his hearings, and has vast conflicts of interests because of his wife's political advocacy for misogynistic religious groups.
Kavanaugh lied to the committee too. In addition, the FBI failed to investigate allegations of sexual assault.
Gorsuch was put on the court though mechanisms that while Constitutional, were unfair. He should be removed by the same kind of mechanisms.
2
Here is something to think about for all cheering this on. There is Zero Chance the Notorious RBG is on the Court at the end of 2024 so whoever wins in 2020 Will replace her. This kind of talk will help Trump to be Re-elected, which will result in Trump being the one who replaces her. Then Pack the Court will be the only option right? So why are you talking about it now?
3
One of the privileges of the presidency is that the president gets to appoint Supreme Court justices. Live with that! Don't like it? Vote for a presidential candidate who more represents your way of thinking.
It's not as if Democrats don't do exactly the same thing when they can.
7
@MIKEinNYC, well we did elect Obama, but we were robbed of his nomination.
1
See Galatians 6 : 7, as you sow, so shall you reap. All this high minded blather about how adding two justices and increasing the number of lower federal court judges will cause the end of life on earth as we know it assumes the existence of some mythical time when the court was not political. The justices are politicians in black robes. The proof can be found in Bush v Gore, Citizens United, Plessy, and yes, Brown and Roe. In the main, the Supreme Court has been a drag on social progress from the beginning. Mitch McConnell's contribution has been to lay bare the essential political nature of the Supreme Court, and federal courts in general.
2
Moscow Mitch’s ‘non-existent tradition’ that he invoked for not considering Merrick Garland’s nomination, is once again non-existent.
He recently said he would consider a potential nomination by Trump, in the year 2020, if that were to happen.
Liberals are, by temperament reluctant to play hardball, and fail when they reluctantly attempt it. Add to that, court packing has a bad taste to it, and failed even when attempted by the most popular president, FDR.
Two solutions that are perhaps easier are term limits, and an increase in the minimum age for a Supreme Court nominee.
Back when the constitution was written, the life expectancy was around 40 years! It is now 80.
When you consider the average generational span to be about 33 years, it seems reasonable (to me!) to expect the Supreme Court to change every 33 years. A new Justice say, every four years. Which nicely coincides with the term of a president.
Give each president a chance to appoint a justice of the Supreme Court. In each term, if re-elected.
This would enable every president to have a say in the composition of the court, a regular refreshing of the composition of the court, and a hope for either party that it will have a chance to reshaping the court soon, if it is not to his or her liking.
However, the constitution is such a strait jacket, that any change to the judicial structure will be fought tooth and nail, and destined to fail.
That should not preclude a serious attempt at a reasonable change.
2
What a genius this guy is! The Democrats can expand the Court to 15 now, and then the GOP can expand it to 22, and so on, ad infinitum. I wonder why no one ever thought of this before?
9
And you are really funny!
What do you rather want? A Supreme Court with Five judges from the 18th century who will take your loved ones right to their bodies?
1
Democrats have failed at every turn. They couldn't control State legislatures, so they tried the supremacy of Congress and the Presidency. They failed at that too. Now their last desperate hope is to control the Supreme Court and the circuit courts.
This is not the revolution. It's the death throes of a party that lost its way, especially after the devil's bargain with the Dixiecrats collapsed. They keep flogging the same dead horse, instead of finding out what people in the country are willing to vote for.
8
Or win the Senate and run a presidential candidate that can win the electoral vote.
5
Is it right that you can change the number of supreme court justices with a simple majority in both houses and the President signing the bill? Interesting...
2
Thank you, Mr. Bouie, for articulating and laying the groundwork for what Democrats are justified in puruing. Hello, Democratic candidates, we are in risk of losing our democracy and not being able to get it back! The population of the US is growing and growing, while the number of Supreme Court Justices stays flat. There is no way that this overly white and overly male Supreme Court can interpret the constitution accurately on behalf of all citizens of the US. Women and minorities should file a suit against this Supreme Court, on the basis of inadequate representation. Better yet, Democrat candidates, you should be advocating for a greater number of justices and making sure that those justices are female and of color.
2
@Maureen. So you have to have diversity to interpret the Constitution? What kind of quotas do you want?
Mr. Bouie makes an excellent good faith argument, and tries to preemptively quell predictable counterarguments, but I still can't help but feel his proposal is a dubious and constitutionally dangerous proposition, especially for a divided nation. If Republicans have demonstrated one thing, it's that they will never let Democrats have the last word on anything. If they have to burn the country and its norms to the ground to make their point, they appear more than happy to do so. Are Democrats really prepared to do likewise? From where I sit it looks like we love governing and cherish the civil society established and stabilized by a robust government and the norms surrounding it.
For a party that existentially relies on the people's faith in their government and norms, it seems recklessly irresponsible to feed into destructive escalations by establishing precedents the other side will be all too happy to adopt. The size of the Supreme Court will explode in a matter of years. And as the bench bloats, the public will internalize the perception that rulings are not so much a function of study of the law but rather whichever party happened to prevail in the most recent pendulum swing. Such perception will make it impossible to accept any rulings with which one disagrees, and compliance will be assured only at gunpoint. How long can a fragile society adhere in such a fashion? I'm not sure I want to ever find out. Nor do I want to see what's on the other side.
2
Here's a basic rule that Democrats should have learned when they eliminate the filibuster for most Presidential appointments: any strategy whose long-term success depends on your side being in power forever is a bad one. Trump appoints anyone he wants because of what the Democrats did.
If the Democrats employ the court-packing strategy, Republicans, when they get in power again, will just pack the Supreme Court with enough of their appointees to get a majority again. And back and forth until the Courts have no legitimacy left. If that's your goal, go for it, but remember, that legitimacy is why Roe v. Wade, Brown v. Board, etc. have been complied with.
6
No, no, no. Not breaking our government matters more than "getting even". If each time a party wins, it packs the court, we'll have no meaningful court soon.
Limit justices' terms to 18 years, guarantee each president two nominees per term, and guarantee prompt and public hearings by the Senate.
2
@Ilya Shlyakhter
I appreciate the themes of your post, but am very worried about a post-SCOTUS lobbying gig or speaking tour or book deal or run for political office further delegitimizing the court.
A Constitutional amendment specifying a minimum age of 60 for SCOTUS will accomplish something similar without any fretting about what justices do after their terms.
@Ilya Shlyakhter
The constitution is archaic. The electoral college is a travesty. The way the SCOTUS is filled is a joke — think of the Garland case.
So, I would think getting something done to get the nation onto the 21st Century will require a political revolution (not quite a Jacobin one though). Bernie is 100% correct.
Saying no,no and no is fine when you have something worth keeping. We do not. The archaisms going back to slavery owning oligarchs are not worth saying “no,no,no” for. Yes it is true that for someone coming from a country ran by a politburo (I am assuming you are from the old USSR or at least your parents were like many of my students and professors at Harvard some time ago) the first impression is that the USA is a brilliant democracy. It wears off!
1
By holding up the Garland nomination and by supporting the obviously unfit Kavanaugh, McConnell and his cronies have undermined the country's confidence that courts will render fair judgments.
That undermines the rule of law everywhere, and may pave the way for an autocrat to assume 'rule of the sovereign.'
We are a nation founded on the rule of law and government by the governed. Mr. McConnell's shenanigans undermine our very concept.
Supreme Court term limits, if they could be enacted, would be helpful. To avoid political influence on particular cases, only a single term should be allowed. Twelve years sounds about right.
1
Concur with Mr Bouie. The size of the supreme court is determined by congress for good reason: the perception of judicial fairness checks an impulse toward civil violence to redress wrongs. That perception of fairness has been damaged by Republican partisanship, it is not Democratic partisanship to look to repair the damage. The only alternative short of the path to violence is structural change of the court, to return a perception (and hopefully a reality) of fairness and nonpartisanship.
@Don. Republican partisanship on the Court?
Agree. What we are seeing in the judiciary is the result of decades of planning by the Republicans.
To do all the things Bouie suggests will require a similarly sustained and focused effort. This is not the type of thing in which Democrats excel.
Ever try herding cats?
2
Since McConnell promised to limit Obama to one term, our liberal democracy has been targeted for extinction by a right wing that seeks reactionary totalitarianism and a left wing which seeks radical left wing totalitarianism. It’s no joke. This Court packing idea represents acquiescence with the idea that we will lose our freedoms but gain the perfect system according to one group of authoritarians or the other.
2
@Casual Observer. Such unfounded drama. Of course it comes from the Left Coast.
@Casual Observer
The "radical left wing totalitarianism" you ascribe to the left is merely social democracy as practised in most of the successful democracies on the globe.
You should try it, you'd be surprised by the peace of mind.
Well, first of all, getting to the 51 Senate votes to be able to do this is at best unlikely, so there's that little issue. Setting that aside, if the Dems add judges when they're able to, then surely the Republicans will do the same when the pendulum swings back their way. Before long they'll need to move the Supreme Court into the Capital One Arena in order to have seats for all the judges. Manipulating the system for a short term gain only degrades it in the long term.
9
This opinion piece makes two incorrect assumptions; we should remember the following:
(1) We have a system of checks and balances, and that includes checks on the judiciary (example: Congress can pass new laws to address perceived issues that result from Court rulings it disagrees with).
(2) This first step wouldn't result in escalation in the next administration; rather, this first step would itself be escalation. The justifications used to argue that the current administration's appointments are less than legitimate (e.g. Trump didn't win a majority of the popular vote) could easily be construed to make a similar argument when the other party is in power. Over time we'd have a larger judiciary with a similar balance of power. In exchange, as the author noted, we would risk the legitimacy of the Courts.
There are other tools available (passing new laws, changes to the electoral college system) that would have more lasting and meaningful impact than this policy of escalation.
3
As far as the Supreme Court is concerned, it's not so much a matter of packing the court as rebalancing to account for the travesty of the Gorsuch and Kavanaugh appointments.
4
So the next time the Republicans win, they will pack the court. By 2050 we could have 30 supreme court justices. Worst idea ever.
5
"The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern." I immediately stopped reading this article after that ridiculous statement. Anybody who has read Bouie's past articles knows this is an outright falsehood. We all know that depending on the thinking of a President then that will be the type of judge he/she will appoint.
4
If we manage to wrest power from these GOP tyrants, I don't want "hard ball" -- I want criminal charges and tribunals.
And Merrick Garland can oversee the whole thing.
4
But then, if you lose power, then the opposition will just pack the courts, too! Seems like a real pickle, buddy!
No no no. Best to just get rid of the courts entirely. And then outlaw the opposition. You're the good guys, right? The good party? Then it making this a one party state is a good thing by definition. There's a good choice and a bad choice, and this way everyone makes the good choice by default! They can still vote, too. ...For the one party.
Then you'll never have to worry about the courts again, and them getting in the way of progress and the bright future of mankind! Sounds great! All democracies should be this efficient and amazing.
This post is brought to you by the PRC.
9
@JB The only ones subverting democracy and progress are the Republicans who have chosen to rule rather than govern. BTW, given the small amount of cases the Courts can hear each year, it doesn't seem odd to increase the numbers of judges in the federal system. I'm sure gains in population since the numbers were last modified are a clear justification for this.
3
The Supreme Court must be reset and every judge appointed by Trump’s lapdogs must be reassessed for competency as their qualifications were not considered when they were appointed.
It’s not a matter of what’s right. It’s about saving the country.
3
Would that "hardball" include scurrility, even scurrility that must be recanted?
It is laughable that those once known as liberal, having failed to prevail, find it necessary to diminish or delegitimize the institutions and persons they have lost. Time would be better spent examining why others do not share your views.
108
@marymary Do you believe that the current constitution of the Supreme Court is legitimate? Is what Senator McConnell did legitimate? As McConnell himself noted, the character of that Court is now altered for at least 40 years. Sadly, Democrats need to act with the same "constitutional aggressiveness" that has been practiced by the modern Republican Party since at least the Gingrich era. I believe that Mr. Bouie is correct. Otherwise, it's the ballgame. The entirety of the system is already grossly weighted in favor of Republican Party putting aside their affirmative anti-democratic practices of the last 25 years.
82
@marymary
It's one thing if they failed to prevail fairly. That's not what we perceive.
48
@ZPS I hate what McConnel did, but it was not illegal or even unconstitutinal. It was simply a parlementary procedure. That's why no action could be taken aganst it. The time frame is not set in the constitution, just as the number of justices is not set. Saying that it is unconstitutional is not accurate as near (as I can see) looking at the wording of the consttution.
18
When Democrats were winning national elections the electoral college system was widely accepted and seen to be in keeping with the foundings of our system as a republic rather than a direct democracy. Now in the aftermath of the Democrats supporting the only person on the planet who could lose the last Presedential election, it suddenly seems ok to reinvent the electoral college system and the constitution. An as to the lifetime appointment, how else could the founders insure the balance of power and remove the turmoil of elections from the deliberations of the Supreme Court?
10
@Mark No, some of us realized after Gore v Bush the Electoral College was a vestige of the past. The purpose ostensibly is to prevent the tyranny of the majority. Unfortunately, the minority are the ones acting as tyrants. Despite popular vote losses, they rule as if they have a mandate. time to say goodbye to domination by less populous, less democratic states.
4
President Trump needs to pack the courts with more federal judges and hopefully another supreme court justice who are conservative. It works both ways. He needs to keep up this momentum and pick up the pace. Our country's well being depends on it. The thought of Democrats placing liberals on the courts is frightening and makes me shutter.
8
@KMW
I pray you have cause to shutter.
I am very weary of watching my country being dismantled from within by a cadre of corrupt grifters led by a amoral dictator supported by America’s enemies.
It’s the difference between actually caring about your country and fascism.
I guessed what this article would contain before reading it. A poor idea that only demonstrates a short term view of the Court.
Democrats that heed this advice will surely rue the day when the Court, again, switches against them. This idea has been tossed around for years, thankfully not gaining any traction. They must first win the senate, and pack the lower courts in the same way as the current administration.
5
I agree that Republicans have done damage to the courts but I don’t want an escalation in bad behavior. I want a return to an independent judiciary. When the courts start to block legislation then the congress can take action by passing more sweeping reforms, which will outlive these judges.
2
If Congress can set the size of the court, can they reduce it from 9 judges to 7, kicking the two most recent appointees off the court?
6
I am pretty damn Blue. However, if we win the WH and the Senate in 2020, both BIG IFS, and if we thereafter "...pack the Court..." by adding justices, then there will be civil war in this country. The Red States will rise in rebellion as will Red Areas of otherwise Blue or Purple states.
In a best case scenario, the country will just peacefully fall apart into seperate nations. In a worst case scenario, there will be fighting in many, many parts of the country.
We lost in 16. Trump got two picks. It is what it is.
6
I'm not lawyer of any kind, but I have a question. Isn't it true that congress molds the types of issues that go to the Supreme Court and can decide that certain others will be out of their reach?
Asking for a friend.
This would be a good idea.
You have to remember that, while no one was paying attention, Trump has been packing the courts with hard right conservatives. In the 2 1/2 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation's federal appeals court judges and 1 in 7 of its district court judges. And they're almost always white men who have the approval of the Federalist Society.
You must also remember that FDR tried this in the 30s when he was having trouble passing New Deal legislation. But Roosevelt lost all his momentum with the untimely death of his chief advocate in the U.S. Senate, Senate Majority Leader Joseph T. Robinson. And his concept for SCOTUS was too complicated.
If the next Democratic president wants to do this, you must also have a Democratic House and Senate. It has to be a slam dunk.
The GOP hasn't played fair for years, so there is no reason why the Democrats should when they retake power. They only need to add two judges.
3
There’s plenty of room for two more judges. There’s nothing unfair about packing the court. It’s supposed to be nonpartisan. We’d just make it that way.
3
The IS is a constitutional Republic. It has never been the intent for congress to pass any legislation that it sees fit. All branches of the government have to act within the constitutional construct given. Amendments can be passed and ratified to change the construct. Democrats are simply looking for an easy way to pass their agenda with no thought given to living within the constitution that they swear to uphold. Ease of passing legislation isn’t a valid excuse for throwing their constitutional duties to the wind. If we allow government to work the way that the opinion author suggests then all is truly lost.
7
Oh! Woe is Me! Democrats might Fight Back!
Here’s a thought: If you are so worried about the Constitution, then study up on how the current Executive is in violation of not just one but BOTH Emoluments Clauses. Foreign AND Domestic. It’s like the Daily Double of impeachability.
And while you’re at it, review Article III and remind yourself how the Federal Courts are created. The Legislative Branch creates the Federal Courts with the approval of the Executive.
And then, in a balance of power (remember junior high social studies?), the Article III courts decide on the constitutionality of the legislation thus passed.
Isn’t it clever, that Constitution of ours?
In a speech on the Senate floor in June 1992, the chairman of the Judiciary Committee, said there should be a different standard for a Supreme Court vacancy “that would occur in the full throes of an election year.” The president should follow the example of “a majority of his predecessors” and delay naming a replacement. If he goes forward before then, the Senate should not consider the nomination.
That chairman was Senator Joseph Biden of Delaware.
There, Mr. Bouie, is your "previously non-existent" rule.
7
An ill-conceived comment isn't a rule. The idea subverts democracy and is reprehensible wherever it comes from. But the Republicans are the only ones to implement it over years, rather than mention it in passing.
2
Mr Biden was speaking for himself in 1992. He did not then “make a rule”, the Senate never voted on such a “rule”, and indeed McConnell’s refusal to allow the Senate to perform its Constitutionally mandated duty in regards to a duly nominated Supreme Court Justice arguably violated his oath of office.
So there sir, is your non-rule.
It appears Republicans simply make up rules when it suits them, and trash the Constitution when it is expedient to do so.
When it is clearly established that the presidency is wrongfully gained with help from a foreign government does it not follow that all actions of such a criminal presidency are subject to scrutiny up to and including the removal of all judicial appointees including those to the SCOTUS? Do we let criminals keep the loot they steal? Is this the legacy of "the wall street debacle"? Letting criminal behavior go scott free? We keep being told that "elections have consequences." I would suggest we focus on the consequences of criminality. Before all else, criminality must have consequences.
4
@Joseph "When" and "clearly" are doing a whole lot of heavy lifting there Joe. They're out in front of their skis, even. I'm still waiting for the "when" and "clearly" generally means accepted beyond the Op-Ed pages and comments of this newspaper--which is increasingly staffed by what my old coach might call the "dumbest smart kids I've ever seen."
1
Not a bad idea, but someday when the Republicans are in power they might do the same thing. We could end up with a very large supreme court that vacillate between Republican and Democratic control. It would be much better to require that 2/3 of the Senate approves supreme court nominee. This way individuals from both parties would have to agree on the selection of a nominee.
2
@LAM Actually, I don't mind the prospect of a SCOTUS that vacillates between Republican and Democratic control. At least it would support democracy part of the time. As for the Court's being an apolitical institution, that went out the door with Bush v. Gore, the most corrupt nakedly partisan decision in the Court's history.
1
That's a silly idea. What will democrats do when eventually, through elections cycles and natural retirements, the court will become packed with Republicans appointees? Harry Reid started this fiasco when he eliminated the filibuster for lower court judges. That opened he door for McConnell to eliminate it for the supreme court. A better solution is to bring back the 67 super majority in place from 1917 to 1975, when it was reduced to 60 votes to end a filibuster. This would ensure a centrist consensus candidate and depolarize and depoliticize the court. Sadly, this will never happen, even for the good of the country, as both sides are firmly entrenched in their quest for power.
9
@dba
Reid dropped the filibuster because McConnell abused blue slips. Look it up. Do you seriously think McConnell would have permitted Dems to block Gorsuch, after the stunt he pulled in refusing to even give Garland a hearing?
and while I agree with the 60 vote super majority, McConnell dropped it and frankly left out a bit of history when he did so. In other words, he lied.
@dba Actually, Merrick Garland was a centrist consensus candidate. McConnell had even praised him as such before Obama nominated him. Also, after Bush v. Gore, there is no chance of depoliticizing the court. The Republican justices ignored 400 years of well-settled law of injunctions in order to install George W. Bush. It was a corrupt judicial coup. Have you ever asked yourself why no judge or commentator---with the possible exception of John Yoo, the torture memos guy---was willing to try to defend Bush v. Gore on the merits?It's because there was no defense that would even come close to passing the red face test.
3
The United States is two things: a union of states (as the name suggests) and a republic (as enshrined in in the Constitution). It is not a union of people nor a democracy designed for blind adherence to the passing whims and trending sentiments of the general public.
The Supreme Court, being itself an equal branch of government no less important than the Presidency nor Congress, has the legal authority and duty to restrain incursions of the federal and state governments beyond their allotted powers and to, with strict scrutiny, strike down laws contrary to the Constitutional rights of the people, even when such incursions have popular support. Thus the Supreme Court as an institution is inherently the most conservative branch of an American government whose powers to rule are limited by design.
If you do not believe in this arrangement, then you do not believe in the Constitution which forms the very backbone of all American law and government. If you seek to lessen the Constitutional restrictions placed on the law-making powers of the federal government and (under the 14th Amendment) of the states, or if you seek to annul the rights set forth in the Constitution, without the passing of an Amendment requiring approval from at least 3/4ths of STATES, then what you seek is treasonous to the United States. That goes to all Americans regardless of party, and both parties have certainly undermined such limitations over the course of the past century or so.
8
@Miguel
Gosh.
My copy says we the people. Not we the States. Yours must be different.
And there was a recent invention of a new second amendment made the law of the land through 14th amendments hijinks. As with Citizens United.
But lecture on as of the happenstance politics of the cult you belong to are my constitutions.
A better resolution would be to establish age limits for the court or set fixed time limits for members. That way, the court would refresh itself on a more regular basis and better reflect current mores. It would be a heavy lift to pass a constitutional amendment, but it is not impossible to accomplish.
2
@J.S. "current mores" should be reflected at the ballot box in the other two branches of government. I don't want somebody that was not before the electorate basing a decision on what they deem to be "evolving standards of decency." We decide what the current mores are, not the referees.
1
Given the breadth of grievances and proposed solutions offered by Mr. Bouie in this piece, I think the ideal solution is to follow Occam's Razor, i.e., get out there and get the votes for a Constitutional Convention--and then just write one the way Progressives really want...Russia, Venezuela and Cuba have versions that could be emulated...I'm not sure about North Korea or the PRC, but good ideas must abound there as well.
8
@Kingston Cole Actually, we could emulate one or more of the democratic governments who have written constitutions since WWII. None of them have chosen to follow our antiquated 18th century relic.
@Kingston Cole
Exactly right. Abolish the Senate and electoral college, pack the court with Far left judges. Then Progressives control everything and they don’t have to worry about losing anymore. In fact why have elections at all? Isn’t their final goal to remove all those pesky obstructions to forcing their unpopular policies on everyone? Those annoying red states.. what nerve that they expect to be represented! And flyover country.. AOC told us that’s a joke! Just empty spaces. People that live there don’t matter.
This is their idea of real democracy.. a totalitarian state!
I agree. It is way past time for Democrats to play hardball. When FDR raised the issue of packing the Supreme Court it was because conservatives were using the court to block new deal legislation. They got the hint and stopped playing politics.
The Roberts’ court is trampling on the constitution with a series of terrible decisions: Citizens United, Heller, Holder (roll back of Voting Rights oversight), gerrymandering, and on and on. Conservatives are plotting and carrying out a slow motion coup.
This time around we have to follow through and not just talk about it. The next Democratic president should increase the court to 11 justices and then go about replacing the older Democratic appointees with 50 year olds. Gorsuch is occupying a stolen seat. Kavanaugh isn’t fit to hold his - not to mention Thomas.
3
To "pack the Supreme Court" has a negative connotation. I think it should be called something more akin to neutralizing the illicitly confirmed justices, however many there may be by the time Trump finishes his term.
This is a REALLY BAD idea. I readily confess that I very seldom agree with anything that Justice Gorsuch writes and find Justice Kavanaugh totally unworthy of the seat he holds on the Court. Having said that, packing the Court is not solution. The Supreme Court has already suffered a loss of legitimacy and to engage in packing damages it even more. Where does it end?
7
@Donald Seberger The Supreme Court gave away its legitimacy in Bush v. Gore, a completely unjustifiable decision that ignored 400 years of the well-settled law of injunctions, and violated the rule that equal protection violations are returned to the state court for a remedy. It was a corrupt judicial coup. The court's legitimacy is gone. The question is, how do we live without it. I think a balanced court is the best we can do.
1
Rather than packing the Court, though the number of justices is set by Congress, I would rather it shone that Trump is an illegitimate president aided by a foreign power, and all of this judges ousted.
4
Please: Let's not call this "packing the court." That's a loaded term. We should call this "balancing the court."
2
But surely the next team will pack the court again?
5
"The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern — to keep the United States a democratic republic and not a judge-ocracy."
Uh, huh. Sure. To think that in October 2016 you people were questioning whether Trump would honor the results of the election. So typical. Trump has driven you insane, and you simply cannot handle the fact that you lost and that elections have consequences. Now, it's all about changing the rules so that you can win. Sorry, not gonna happen.
7
"Don’t Be Afraid to Pack the Court"
I agree 100% with this idea! Let's start today! Imagine how much we Constitutional Conservatives could do to get this country back on track after years of Liberal doctrinaires and their SCUTUS rulings. Would six new justices be enough? Maybe 10 is the right number? Whatever. Just get started right now!
8
What goes around, comes around. This would lead to massive liberal regret.
8
I totally agree. Democrats need to play the game the same as republicans!!!
@Rick Ivnik
Republicans haven’t packed the supreme court past 9 justices. They’re appointing justices according to the rules not changing the rules.
5
Dear Mitch McConnell,
Pack The Courts
I know I would
Sincerely,
Jamelle "Clearly Not A Republican Although I Keep Saying Things A Duplicitous Republican Pretending To Be A Radical Liberal Would Say. Did I Mention That I'm Really Not A Republican" Bouie
3
@Marion Grace Merriweather
Haha! Yes! For some reason the NYT acts like conservatives don’t read this paper of record. This will be headlining Tucker Carlson Tonight on Fox News in no time! The second one of these radical lefties writes an article like this it gets plastered all over conservative media. Instantly. So now it’ll be Dems are the party of open border socialists who want to pack the supreme court to get their open border socialist agenda passed. Or that’ll be the headline for conservative media anyway. smh
Republicanism is the ISM of our time.
Why else are we by far the most war mongering, most jail stuffing, gun running, unequal poor bashing nation on earth?
Republicanism is the enemy of our time.
Forty years of Reaganomics has nearly destroyed the American dream. Endless wars for no good reason have produced a national religion that is shear idolatry.
It is not OK to be a Republican. It has not been OK for a very long time - long before Trump. So, it is certainly not OK to have the Supreme Court controlled by Republicans.
To be sure: The political polarization in the U.S. is due to the Right. Not the Left. The Left desires a return to FDR.
Republicanism is fascism. Check it out.
Google the Fourteen Characteristics of Fascism.
2
@Tracy Rupp Do you ever hear yourself speak (or write) ? "The other side is the enemy of our time and it is simply not OK to have their political view. [amazingly followed by] And they are fascists and the cause of the polarization."
Just wow.
...cry out for Democratic hardball in response.
Yes they do.
The survival of our system, our political democracy, call out for restraint.
Not impotent Schumer/Pelosi/Clinton resignation.
More AOC as stern but loving national Mom...political tough love.
"You went there. didn't you? You can't to that. We won't let you. Here's what we're going to do now. First, let's make sure this can't happen again..."
Your tit-for-tat mutual beat-down is a call for implosion, for mid-last-century Europe, every new government exists undo every last thing about every last government.
No national identity, nothing to count on, endless vendetta and lurching about.
Nations seething in place, business unsure what to do/where to go, infrastructure crumbling at half-past Roman times, assassination the Homecoming of the political class.
Nobody wants that, satisfying as it would be on the winning side; comment section fantasy.
Undo the gerrymanders. Put in place a new, powerful election overseer. Clearly limit the powers of the Presidency. Make sure any President can be prosecuted at any time; make clear for what and by whom.
Get DoJ away from the White House. If the President wants a lawyer let him get one. But that is my lawyer. You will not use it to destroy this country.
Build another Camp David. Rustic, so manly Trump wishes he was dead. The National Presidential Preserve: always ready to receive wayward Presidents; hold them a long time. Camp Donald.
1
Liberal Democrats have already done this. The country has enjoyed the fruit of their labor for years. Now the table has turned. How do you like it so far?
6
“Trump’s Supreme Court appointments are mired in controversy.”
In no small part due to the NYTimes issuing fake news like the article and tweet over the weekend for which they were forced to apologize.
10
an eye for an eye, don't bring a knife to a gun fight, or you will lose and nothing can be done.
YES YES YES! This is exactly right. We are a democracy and elections must have consequences. We currently have a credibly accused rapist and a jurist in a stollen seat on the Supreme Court. If Democrats win the trifecta, as Bouie calls it, they should add four seats to the Supreme Court and put women in all of them!
OMG. Where to start. Since Democrats lost the Presidency and can’t seem to win back the Senate, we must therefore shed the entire constitution, the entire basis of our Republic for almost 250 years, so that Democrats can get absolute power over all three branches of our Government and put in place policies that at least 50% of Americans do not support.
Sounds like the typical plan of a fascist totalitarian leader! In fact that is the left’s current concept of a “Democracy”.
So we must discard the electoral college, the senate, and pack the Supreme Court with liberal judges. Of course Obama appointed 100’s of liberal judges which was his right as President, yet a Republican President has no right to appoint Conservative judges.
The states with Republican majorities and rural states have no right to have any representation under this new plan.
No Mr Bouie, this is not Democracy. It’s the opposite. Exactly what has happened in countries like Venezuela and Cuba where socialism and left wing extremism ends in Totalitarianism. Luckily because of the safeguards the founding fathers built into our Constitution, the power grab that Mr. Bouie and many Democrats are cheering for will fail. But they will continue to try.
9
Lincoln governed in a time of Civil War. It amounted to a Second Revolution, our deepest, most fundamental and bloodiest. The fate of the Republic was at stake. All bets were off.
We are not in a Civil War.
If we were, hundreds would die every day, not a dozen or two students or worshipers, once in a while.
Trump is not a fascist, ready to pull off a Reichstag Fire. He would need hundreds of thousands of storm troopers to do that.
The Charlottesville white nationalists, only a thousand gathered from all over the country, are not about to take power. To do so they would need vast numbers of storm troopers, not a handful of Tiki Troopers.
Settle down. When we have a depression, say in 5 or 10 years, we'll have a resurgent working class on the left, and probably a mass fascist movement on the right.
The stakes will be a hundred times greater.
In the buildup to the showdown, we will need every civil liberty in the Constitution: free speech, free press, free assembly, free elections, stable institutions. And yes, the right to bear arms. The other side will do so, legal or not.
We needn't make a fetish of legality, but it will be a huge help until it is lost in the final stages of the showdown with the counterrevolutionaries, our Second Civil War, and Third American Revolution.
So, your proposal to manipulate the Constitution to curb the right's power now, is short-sighted. It will damage us a hundred-fold in the real fight.
1
No. Unpack the GOP/NRA Party. VOTE them ALL out, at every level. The only thing they fear is losing their “ Jobs “. Let’s help them, with that.
Seriously.
1
Democrats can’t win on ideas and elections, so they want to destroy the courts to get their way
6
Yes! I hope the Democrats will win all the Presidency and both houses in November 2020. Mid January vote to increase the SCOTUS to 11 judges; start impeachment proceedings for Kavanaugh and kick the other appointee out since he took a stolen seat. Time to stop cowardly Democratic leadership. Ocasio-Cortez to House chair and Kamala Harris to run the senate.
1
Amen, Mr. Bouie. I would go so far as to say that the Dems must do their damndest to impeach Gorsuch, Kavanaugh and Thomas for good measure. Even today, impeaching Thomas would say that no one is above the law.
1
June 10, 2039
“The Supreme Court ruled 95 – 93 in favor of marriage rights for humans and robots.”
It’s coming.
3
Absolutely...you don't bring a knife to a gun fight.
So if you can't win,change the rules, lol.
5
Totally agree! Good column!
Like the electoral college (a misnomer if there ever was one) is an outdated travesty as is the supreme court! When you know up front how a so called judge will vote on any case brought before it,
then what youve got is a stooge! America now has 5 supreme
stooges whose decisions are as predictible as the sun rising in the east and setting in the west.
1
Yes yes yes! Democrats wake up and quit playing nicey nice. Repubs are criminal in their tactics and we need to fight back or roll over and lose even a shadow of a republic let alone a democracy. FIGHT!!!
1
With our ginormous national debt, might be better to just impeach – two at a time, of course – any not to our liking...
We could then use the freed-up funds to expedite the important work of impeaching Sean Hannity, the Electoral College, and – posthumously – Andrew Breitbart...
1
Agreed!
Your idea is as bad as the ones you criticize. That’s how we got here!
5
Memo to the echo chamber - both parties play this game.
The Democrats started the hyper-politicization of the SC nomination process by "Borking" Robert Bork: https://www.nytimes.com/2011/10/22/opinion/nocera-the-ugliness-all-started-with-bork.html
In 2007, as Bush was nearing the end of his second term, Chuck Schumer said that Democrats should not approve any subsequent Bush appointees to the court: https://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee
7
As if the Democrats wouldn’t pack the SC with far left justices if they had the chance, LOL.
6
Someone name two Democratic senators with the wits and will to confront the GOP, match the GOP.
Looks to me the Democrats have been the GOP's wet end of the mop since McConnell expelled them from the majority.
You yourself are an example of why Democrats fail...stop using the phrase “pack the court”!! It’s your opponent’s phrase! They want you to say it. And you’re saying it! Democrats need to hire their own messaging strategist and pick a phrase that helps, not hurts, their cause. Integrity realignment. Corruption busting. Whatever! Just not court packing.
I do think we are at the point where our Democracy is imperiled. I do not like court-packing because it creates perverse counter incentives. But by withholding a vote for Merrick Garland, perhaps the most moderate justice Obama could nominate, Mitch McConnell unleashed something far worse than even he imagined. Keeping the federal government honest, and keeping order in the streets requires balance and a court that swings between liberal and conservative majorities to keep the law from veering too far off in any one direction. This controlled pendulum swing requires balance. Balance on the Court requires that as Presidents from one party or the other are elected, they be allowed to make appointments to the Court so that after 20 years of FDR and HST, 8 years of the moderate IKE and then 8 years of JFK and LBJ, after 36 years, one would expect just what we got, the liberal Warren Court. Then 20 years of Nixon, Ford, Reagan and Bush interrupted only by the moderate Carter, would push the court first to the center and then back toward the right. Now that order has been disrupted as McConnell grabbed the pendulum with both hands to arrest its movement. When primal forces, and carefully constructed balances, are interfered with, there is and will be hell to pay.
We should not just expand the court from nine to eleven.
Not enough.
Clarence Thomas and Brett Kavanaugh must account for how they lied their way to the court.
The House should impeach both.
Then the Senate will remove them after public shame and humiliation.
Next Dem president will put four ulta liberal jursit on the court ensuring we have super majority, forever.
Are the current Republicans really conservatives? It seems to me that the only things they want to conserve are their own power and view of the world.
I can almost hear George Washington and Abraham Lincoln spinning in their graves as today’s “conservatives” ignore their writings.
I think is is an important idea and I hope the progressive candidates are seriously considering it. The neutrality of the judiciary has gone out the window with decades of jerry-meandering and Trump’s push to nominate federalists. The risk of republicans deploying tit for tat is worth it. We have arrived at a very dangerous place in our apparently fragile democracy and need to take strong measures to right the ship.
Four years ago, I would never have supported this idea. But given the unmitigated obstruction by Republicans during the Obama years, I support this action.
1
Instead of or in conjunction with adjusting the court's size, Democrats should also explore reforms like abolishing lifetime appointments and instituting term limits instead. (Say, 18 years?) Retirements could be on a staggered schedule so that every four years, the president (whichever party they belong to) gets to make two appointments. And in addition to Senate confirmation, the nominees must be approved by majority (or unanimous) vote by the sitting justices themselves. A bench of former SC justices can be called on to serve temporarily in the event that a nominee isn't approved. Such measures may help ensure that the Supreme Court is more ideologically balanced, and that its composition isn't frozen in amber for generations while American society continues to evolve.
(I read some of these ideas in David Faris' book "It's Time to Fight Dirty." I'd recommend it.)
Since Republicans have a much better chance of holding the Senate than the house, I suggest Mitch follow Jamelle's plan and end the filibuster now. They should have last term. Next time Republicans hold the House, Senate and President, I would follow Jamelle's advice and pack the Supreme Court big time. Hoping the opposition can't repack it soon. As Jamelle indicates, nasty politics can be fun and rewarding, but it works for both sides.
3
This is such a bad idea. Remember when Harry Reid invoked the nuclear option on judicial nominees? What is good for the goose is good for the gander.
5
One of the great mysteries of the age is why didn't our law professor president sue McConnell when he illegaly exercised a pocket veto against the Garland nomination. McConnell blatantly violated Article II Section II of the Constitution that tasks the President to nominate certain officials including Supreme Court Justices and for the WHOLE Senate to provide Advice and Consent on these nominations. McConnell had absolutely no legal or historical basis for his theft. His arbitrary and laughable historical rational was a transparent political ploy that he later admitted as such. Why this action was not challenged is a a great unaswered question.
9
Because there is no timetable required to consider a nomination. This was a political decision and it required a political response.
2
They could have just held a hearing and rejected him. That's what will likely happen in the future. It will be difficult for a President to get anyone appointed by a Senate of the opposite party in the future.
@Sean Peterson Obama could have inquiried whether McConnell intended to present the nomination after a month. After four months, which was the longest modern genesis of a SCOTUS nomination and confirmation of Justice Brandeis Obama should have sued. The Constitution is clear on the branches responsibilities and the "lack of timetable" to conduct a pocket veto is altogether spurious and I believe it would have limited legal basis if in fact it had been litigated. McConnell did not in fact base his actions of the "time table" principle but a made up historical precedent argument which he later admitted was a wholly political invention.
1
Assuming this actually came to pass, the best case scenario is that the SCOTUS would be stripped of whatever legitimacy it still has in the minds of the vast majority of Americans and the Republicans retaliate with their own court packing once back in power. It would certainly be seen as an attempt to establish a liberal dictatorship of the judiciary. The worst case scenario, and one that is by no means unlikely, is that this precipitates the most serious constitutional crisis since the Civil War with open defiance of the court.
If you want to risk tearing the country apart, this is a fantastic plan.
5
@John C. Dems rarely understand anything more than "I want, I want, I want"
The first step is to stop referring to the strategy as "court packing." That already sounds illegitimate, and it isn't what the Democrats would be doing. They'd be "balancing" the court, after the Republicans "packed" it with conservatives by torpedoing the Garland nomination. As Frank Luntz would say: Words matter!
5
@Jim McFarland pretty looney. McConnell was within his rights. Garland would have never been confirmed. Presidents get to nominate justices, the senate approves. It's not a rubber stamp. Ask Bork. If HRC had won, Garland would be on the court. She didn't. It was an election year when McConnell made the decision. Obama's popularity was low and he'd lost the house and then the senate.
This was the Biden rule, remember, and while it would have resulted in roughly a six months delay if HRC had won (for getting Garland approved) that's nothing in the context of a lifetime appointment.
3
a lot of Republicans were on board with Garland that was a blatant abuse of power by McConnell
1
@Ralphie Thanks for taking the time to respond, but I've got to say that your invocation of a mythical "Biden rule" is what is looney. And I'm not sure what the relevance of Bork might be. He was given a full hearing, televised as I remember, and eventually voted down. McConnell invented a pretext to prevent Garland from even being considered. So apparently he wasn't as confident as you seem to be that "Garland would never been confirmed [sic]."
It was a blatant misuse of power, technically possible only because no one ever thought an elected representative would do something like that. There's a lot more legitimacy and precedent for rebalancing the Court, which the Democrats certainly should do, particularly since a third of the men on the Court have credibly been accused of sexual misconduct. The legitimacy of our court system demands this rectification!
1
This sounds like a terrible Idea. As the writer of the article said, this sets a precedent that would allow Republicans to respond in kind whenever they come back into power. If the Dems add 2 judges what stops the Republicans from adding 10? Do we eventually end up with a supreme Court with more members than Congress?
Our country has worked very well under the current political system for the last 200+ years. We should be thinking any major changes (like the electoral college) over very carefully before making any radical changes. Sudden radical change often leads to instability and resentment in communities. I believe that's why the founding fathers set up a system that is so hard to get things done in. If any given interest group can ram through any legislation they want with a simple popular majority any potential restraint first out the window in a race to the bottom to pass everything they can before they lose power.
6
amen! amen! amen! the dems must be willing to add three justices to the court as soon as they can.
stop listening to the "inside the beltway" deep thinkers who are above playing hardball in response to republicans--who have been playing hardball at least since the "litmus testing" of judicial appointees by reagan.
the result has been a terrible imbalance in the federal judiciary that already has done significant damage to our country and will do more for a generation.
2
@james ponsoldt
So I am assuming that you would be okay with the Republicans expanding the current Court by 3 Justices to be nominated by President Trump right now?
5
The "conservative" justices are fair minded and balanced in their opinions. That's the meaning of being a conservative.
4
Simply put, this is a bad idea and paints the Democrats as whiners who can’t win unless the rules are changed. It’s one thing to change the rules if they are unfair but that’s not the case here, the Supreme Court is working as it was designed so arbitrarily adding more justices to fit a perceived political agenda is just something the other side will do when the balance of power swings back their way.
If your platform and ideas are really that good and appealing, they will be supported by the people.
Pass better legislation and the Supreme Court will become less relevant in your life and the lives of many.
187
@Norville T. Johnson
It's funny that you say:
"If your platform and ideas are really that good and appealing, they will be supported by the people."
Why is that funny? Because the majority of Americans do in fact support these ideas. Republicans lose the popular vote. They are governing on behalf of a minority of the country.
It's time to level the playing field instead of tipping the scales in favor of vast swathes of land where states contain a population the size of a large city in a blue state.
253
@John Marshall
"If your platform and ideas are really that good and appealing, they will be supported by the people." -- I also agree that it's amusing funny he said that. To reiterate, "supported by the people": Last I checked the federal *judiciary* had absolutely *nothing* to answer to vis-a-vis either the support *or* the will of the people. -chuckle-
14
@John Marshall
"Republicans lose the popular vote. "
Republicans (and Democrats) don't campaign in California, New York, New Jersey, Illinois, Massachusetts, or, for that matter, Oklahoma, Kansas, Nebraska, Alaska, and another deeply red or deeply blue state.
There is no point in wasting resources to campaign in a state that is highly likely to go one way or the other.
When was the last time you saw a billboard for any presidential candidate in the Tri-state area ? Answer: never.
Until the Electoral College is abolished, you have no idea how the popular vote would really go, because no one is trying to win the popular vote.
41
"So what should Democrats do? They should play hardball back. Congress, according to the Judiciary Act of 1789, decides the number of judges. It’s been 150 years since it changed the size of the Supreme Court. I think it’s time to revisit the issue."
Jamelle Bouie makes excellent suggestions, but his major predicate--that the Dems must win both presidency and Congress-- is a very iffy notion. Republicans have worked long and hard to get where they are, in terms of voter suppression and a highly conservative court majority.
That's the reality--and all the hypothesizing about what the Dems can do in return means nothing if they can't win the presidency, the House and the Senate. It's truly a catch-22 situation, and painful to watch.
99
@ChristineMcM Uh, the Democrats will need to have unitary control to expand the Courts.
1
@ChristineMcM-Also painful to see the web of connections hampering justice. Both Kavanaugh and FBI Director Chris Wray's time at Yale Law School overlapped. Kavanaugh was a member of the Yale Law Journal; Wray the Executive Editor of the Yale Law Journal. Kavanaugh and DoJ A.G. Barr were both attorneys with law firm Kirkland & Ellis that represented Jeffery Epstein, Russian oligarchs and Alfa Bank, and BP Oil of Deepwater horizon spill. DoJ Criminal Division head Brian Benczkowski represented Russia's Alfa Bank up through his nomination hearings. Recently fired Nat'l Security Advisor John Bolton also worked at K&E as did disgraced Sec. of Labor Acosta and Kenneth Starr....and on it goes.
4
@ChristineMcM When Democrats fail to take both the Congress and Presidency in 2020, it will have less to do with “voter suppression” and lore to do with an insane platform of open borders and socialism.
And then, Mr. Bouie, if the Republicans obtain their own "trifecta" after a similar win by Democrats, I suggest that the Republican Congress expand the courts even further, pack the court's with more and more judges to counter the trifecta expansion by the Democrats, per your suggestion. And let's keep that process going every election year. Keep packing the courts. What a solution you put forth.
Just another proposal to change the rules when someone can't win. Hmm, same with the electoral college: can't win by that method, so we suggest tossing it so that the rules favor the other side.
I might use these methods for a football team I follow. If it keeps losing games even though it gains more yardage than the other team, I propose changing the rules to make the team with the most yardage be the winner, and not the team who gains the most points. Seems much fairer to me, since I get so frustrated that the other team has figured out how to win those games by making those frustrating touchdown points under the current rules. Change the rules when I can't win. I like that.
133
@BT "Change the rules when I can't win" - well that's exactly what Republicans have been doing for years - from Gorsuch to Gerrymandering to voter suppression, to not showing your tax returns... the list is endless.
We live in exceptional times, unfortunately, and not by the fault of the Democrats.
468
@BT
Actually your analogy is a non sequitur as the team which gains the most yardage is the most likely to get the most points anyway.
What the Rs are doing is to change the rules so that the Ds have to get the ball into the traditionally defined end zone when the Ds have possession, but the Rs get to define their own end zone whenever they have possession, and they typically define that end zone has only 1/2 the distance.
19
@BT Since you mention football, the GOP "game plan" hasn't changed since Newt Gingrich -- don't play by the rules, obstruct and block any legislation that doesn't fit into their right-wing agenda, instead of reaching across the aisle to compromise on legislation.
They're the party of dirty tricks and obstructionism, and that won't change anytime soon until the GOP base realize that they vote time after time again for politicians don't have the voters' best interest in mind and who only pay attention to them around election time.
15
@RF
Republicans aren’t afraid to break
rules, laws, regulations, whatever, to get what they want.
It’s easy when you know that no one will do anything about it.
America depends on the Rule of Law to exist.
It is an absolutely essential element, a prerequisite.
Therefore, Unless we restore it, the experiment is over.
1
MR Bouie is wimping. Trump was elected - fairly so - and has set about doing what he said he would do, with much success. Trump’s successes run directly against the grain of the leftist ideology which Mr Bouie espouses. It is to be expected that he would write such a column as he has here, advocating court packing and eliminating the electoral college
and filibusters...its what losers do. However he should be aware that such action will come back to bite you - just ask Harry Reid. His argument is weak and nonsensical, and he knows it , but it’s come to where - with all Trump’s success - its all he’s got left.
5
This is why it’s important for every democrat to vote regardless of the final nominee
4
Congress has power to change the number just like the hack McConnell refused to confirm Garland. Run on it.
1
Don't call it "packing" at all! Just use the term "expand" which has no negative connotation
5
@Dennis Murphy just like "you can keep your doctor"?
2
Pack the courts, but also investigate and expose the sitting party hacks. Shame them into retirement.
1
Nonsense.
We got into this mess because the moderate-liberal-left DID NOT SHOW UP TO VOTE in 2010, 2014, 2016. Nor did young people.
So again, the proposal is to jimmy things, just like Republicans? To “fight,” just like Trump?
Short-sight, intellectually-lazy nonsense.
3
Why wait. I say we pack the court now while Trump is in office.
2
Maybe conservatives should take this author’s advice and pack the court now. Why wait for RBG to retire and do it the common way, right?
6
We are in a horrifying, vicious circle of self destruction. Playing the Republicans' game on their terms will only speed it up. i can see only one way to break out of it, and that's creative destruction. Pack Congress, the Supreme Court, and the White House with women for a fresh start. (Hopefully avoid the Chao and DeVos models).
1
"That’s nearly half the total confirmed during President Barack Obama’s eight years in office."
Can these editorial writers think about what they're saying? He's also only been in office nearly half the time Obama was.
2
It's easier than that !
Kavanaugh can be impeached, exit one, and I'm sûre that a healthy investigation of others could cause some early retirments.
This with no accusations of packing.
Packing the Supreme Politbureau will make the legislative branch obsolete.
Entirely correct, Jamelle. Well written. In addition, in the case of Abe Fortas who resigned from the Supreme Court in 1969, the underlying issue was a strong odor corruption--payoffs from a financier for unspecified "advice." In Kavanaugh's case there are also sharp questions about his personal finances, and specifically large debts that were paid off before his SC nomination with no apparent sources or explanations. These should be investigated along w/allegations of sexual assault. Kavanaugh should be pressured to resign, just as Fortas did 50 years ago. "Abe Fortas resigns from Supreme Court, May 15, 1969":
https://www.politico.com/story/2017/05/14/abe-fortas-resigns-from-supreme-court-may-15-1969-238228
Or you could take a course of action that wouldn’t tear the country apart......win elections.
5
I agree. I would also follow the Republican playbook and call it “remedial expansion” (or something euphonic and constructive!). The last two Republican appointments are illegitimate; they lack procedural due process. Corrective measures are not only justified, they are required.
I think the time for Mueller-type nail biting about protocol is long gone. We need effective course correction, even by bending a few rules.
The Republicans will lie about and condemn whatever the Dems do. “Let’s give them something to talk about.”
It’s not enough to pack the court. Adding two liberal voices only balances the illegitimate ones. They should instead be erased.
Gorsuch and Kavanaugh should both be impeached, one on constitutional grounds and the other for demonstrated political bias. Then, after Obama is appointed to the court, we can discuss who the 9th should be and how many there should be.
Jamelle Bouie is asking for civil war. Don't even think about it. (But he is not wrong about the problem)
Indeed; Democrats need to quit pretending they can win a knife fight without any knives.
Absolutely. The GOP has been using dishonest tactics for quite some time. They need to be nipped in the bud.
2050 CE --240 Justices on the Supreme Court
In Congress:
Republicans, "Bet two justices."
Democrats: See you and raise you two."
Republicans, raking in the post, "ta-ta you lost the election."
Democrats: "Not fair!"
3
Sounds like a very good plan. Indeed it’s time for the dems to play as you say “hardball”. Trouble is you can’t play hardball with a Wiffleball and plastic bats! And this is how the dems play. Hence the term “ Whiffed out”.
If we can't win legitimately, let's cheat.
6
Elections have consequences. Deal with it.
4
When a Republican Senate (representing a minority of our citizens) can block a Democratic president's judicial nominees indefinitely, and is proud of doing so, it's time to take a good, hard look at what is going on here.
What is missing from Mr. Bouie's essay is how to accomplish this. There is no Constitutional requirement for any certain number of judges on a given court. That said, a Republican Senate (senators representing fewer than 25% of our nation's citizens) can impose their minority rule indefinitely, by simply blocking Democratic judicial nominees.
The likelihood that the Democrats will retake the Senate any time soon is nil. It certainly won't happen in 2020. Thus we will have a continuation of the Senate's recalcitrant behavior that occurred throughout the Obama administration.
When a system of government permits a minority of citizens, through their own representatives, to control the will of the majority indefinitely, then there is no way to "make this work". We may talk all we want about what the Framers had in mind, but they most assuredly never foresaw the time when a state with 600,000 people would have the same Senate representation as a state with 40 million people.
Those of us who are sickened by the direction the country is going should understand that, even though we are in the majority, we will be living in a country where we have no say, indefinitely. Either get used to minority rule, or emigrate. These are now our only choices.
3
“Yes, there’s the risk of escalation, the chance that Republicans respond in turn when they have the opportunity.”
What we don’t need is to have a Hatfields vs. McCoys war between the parties where when one side gains power, they systematically destroy whatever the other party had put into place when THEY were in power. That’s no way to run a country.
The only solution is to persuade enough voters that the current Republican Party is terrible for the country and must be destroyed through the ballot box.
1
It is not helpful to call 21 Century court modernization "court packing". Moscow Mitch "packed the court" when he denied Merrick Garland a hearing and ram rodded Kavenaugh through. The population and litigation in the US has grown exponentially. CJ Roberts has long said that the courts are over worked. An expanded SC is the way to "un pack" the courts and move our justice system in to the modern era.
2
If you can't beat the Patriots, do not build a better team. Just make your touchdowns count 21 points each.
7
Terrible idea as it will only further delegitimize the Court and escalate yet again this battle over who can first destroy our democracy for good.
What the Democrats should've done is stood their ground over Merick Garland. But they backed down from the fight as always. The answer isn't to take on a bad fight but to remember to fight the righteous battles when they arise.
2
I agree. When McConnell refused even to vote, Obama should have pressed the issue by certifying Garland’s appointment to the Supreme Court claiming the Senate had either violated its duty under the Constitution to advise and consent or, on the other hand, waived its right to do so. Maybe he would have lost, but he should have forced the Supreme Court to make a decision and suffer the calumny of turning Garland away. People love Obama, which is fine, but as far as I can tell he met an issue he was willing to fight for.
1
The undergirding of the GOP mentality of “Law & Order” is predicated on the idea that its for the other guy/gal and that they will ACCEPT IT.
It’s time to say, “No, more.”
The one upside to the current GOP flirtation with authoritarianism is that shines a light clearly on what was previously presumed but unspoken. In this case, that the GOP believes it has the authority to decide the Law (but to ignore it when it applies to themselves) and to hold others to strict account of it. But the most salient principle is the inherent assumption that the Dems, in service to what is Right, will always allow themselves to be subject to it (or else will be intimidated into compliance by legal authorities).
Frankly, this sort of behavior is getting pretty annoying. My entire adult life I’ve witnessed a GOP playing by its own rules while the Democrats try to hold the center. Well it’s become clear that two different games are being played and while I do not accept or condone the actions and methods (or goals!) of the GOP, I have come to accept that the center will not hold.
The Democrats must learn to fight a new way that will require a new resolve and a new narrative. We are not packing the courts for partisan advantage. We are rebalancing the courts to RETURN to parity. Or something, I’m not a writer. But the time for this fight is coming and, for the voting public, it starts next year at the voting booth.
6
@Ryan A. Not sure how you can watch the current crop of Dem candidates and claim they are trying to hold the “center”. Also, you can’t claim to be morally “right” and the guys just trying play by the rules when you are seriously talking about packing courts, abolishing the EC, impeaching Supreme Court Justice’s based on sham charges, and removing a President via impeachment the day after he won.....all based on the fact that you can’t win elections based on the rules you supposedly respect.
3
The Democrats need to get some teamwork together in order to beat the republicans or pack the courts.
The Republicans have been doing that even before Reagan.
We have a long road to travel.
Vote!
3
By this logic shouldn't the Democrats eliminate an independent judiciary and let it act as simply a bureaucratic rubber stamp on whatever a democratic President and Congress want to do? I guess you could go through the farce of appointing hundreds of judges but why? The good thing about discussions like this is it lifts the curtain on how undemocratic parts of the Left really are.
22
@Chris after the Republicans stole a nomination to the Supreme Court and lost the popular vote twice, but still got to govern thanks to gerrymandering and voter suppression, no one from that party should even think about accusing anyone of being undemocratic.
18
@Minerva There was never an election governed under the rules of a “popular vote” so the idea that Trump (or anyone else for that matter) is somehow illegitimate because of losing the “popular vote” is absurd on its face.
If the 2016 election was held under a popular vote, the results would have been vastly different. Don’t agree? Well, be honest and ask yourself how many Republicans in blue states stayed home because their votes didn’t matter.
6
@Chris
Nope.
Republicans have stacked the deck. It's our turn.
So you pack the Supreme Court, assuming you lot win an election and allow any other afterwards, the next winner packs the Court again so after two or three cycles there are more Supreme Court justices than members of the Senate. I remind you that all laws enacted can be repealed, so unless there is an amendment to the Constitution, there will never be a limit to the number of justices.
7
Thanks for the wake-up call. Democrats have been playing too nice and PC against the GOP that will do anything to get their way. While we need to go high when they go low, we also have to play eye for an eye.
1
The court isn't afraid to weight in on political issues a la Bush v Gore, that tipped the court permanently right. But I have to ask whats to stop the GOP from packing it even more now. Where does this end. I hate the conservative majority. I will be dead before its gone. But America will become liberal, the courts decisions will be overturned. They are on the loosing end of all their 5-4 decision in the long run. Indeed its important to look at the long run.
"the chance that Republicans respond in turn when they have the opportunity."
Not a chance, a certainty. It might be worth doing anyway, but let's be clear about the ramifications. and not wave them off so causally.
3
Between the constant threats of impeaching the president and now packing the courts, it has become completely clear to me Democrats are the worst losers in history.
Lose an election? The process is flawed! We must get rid of the electoral college!
Supreme Court is majority conservative? We need to pack the court!
Rationalize it however you want but the facts are that Democrats must claim the game is unfair in order to regain power and that is pathetic. How about just win the election the same way presidents have won elections for 200 years and do the same thing with Supreme Court Justices instead of insisting the game is rigged against you (which it obviously is not).
12
Two words, Mr. Tradition. Merrick Garland.
3
No laws were broken or changed in connection with Mr. Garland’s nomination. Yes, a custom was broken but that’s all. Mr. Bouie, by contrast, is suggesting radical changes to numerous laws in order to cement Democratic power in place.
Hard all can be played by all. You may get what you deserve if you play this game.
How about 51 votes in the Senate?
Hey, bring it on.
1
In the country I live in, hardball has already been played.
1
Hard ball? Guess subverting Garland was just slow pitch softball for the Proto-fascists, er, GOP. Yeah, that’s right. Bring your game of hard ball to our field where there are no rules. Even with your rigged advantage, you are losing. The blue wave of 2018 about to Tsunami you in 2020. #MakeItLucky13
The author really shoud try stand-up comedy as well as writing opinion pieces.
This, because hypocrisy and humor go hand -in-hand, and a Democrat whining about Republicans packing courts, following decades of Democrats packing courts, is as hypocritical as it gets.
It still just boils down to: "I'm still angry that Hillary Clinton lost bbut instead of taking my toys and going home I'm going to stand here and wail for eight years."
10
Hmmmm... if the compass does not point the way you want to go, should one change the compass?
7
Wake up! It’s already been changed or did you notice that when Mitchell submarined Garland. I guess when a Republican does it, it’s different.
1
I am scared . We should be scared . All the right wing political hacks filled the courts . It used to be last shelter for all people. No more.
1
Sure, I'll play the Fool and cry out: PACK IT!
We've had a thousand days of the legal system of this country being dismantled.
Put into judgeships are members of secret societies, The Federalist Society, where the new member must swear an oath to NEVER pass a judgement against the Society.
This is who the Republicans have been putting into those offices.
What's my Magic Number?
37.
That is not only the number of live births I would have delivered during my lifetime - 37 babies without reproductive CHOICE! it is also the number of new Supreme Court picks I want.
The population of this nation has grown since 1775.
The legal system has become more complex.
Rulings have been pulled out of thin air, dispensing of common sense and reality (Corporations are people? Really? Money is speech? We are still being ruled by an agreement that was based on slavery? How come the "Electoral College" still is around even though slavery is illegal?)
New, imaginary legal system are pulled out of thin air. Scalia's "Originalism" is either a fantasy - or he pulled it out of Classical Republicanism - something even the ancients found repulsive.
37.
Pack 'em in there.
Not one or two - but 37.
That will teach the little boys in the Senate to steal!
2
I absolutely 100% agree with you. The 2021 incoming full Democratic administration of House and Senate (yes, you read that right) must fight fire with fire. It will take years to undo all the damage that Trump has wrought upon all of us.
2
I think that packing the courts is necessary if the United States is to continue to be a representative democracy at all. Otherwise, a right-wing minority will control the daily lives of everyone in this country. Let us not forget that governments exist to serve the people, not to exercise control over them much less to impose a minority ideology on the majority. That is the reason why the elected officials get to appoint judges, make laws and administer the government: because they were elected to serve the people, not corporations or a particular religious view.
Of course there is a huge elephant in the room: the electoral college. It has to be eliminated. For that to happen a constitutional amendment is needed... and for that to happen the ones who support this amendment have to control not just the Congress and the Senate, but also 75% of the individual states' legislatures. Many think that this is impossible, but I do not.
Please remember that the electoral college elected George W. Bush, who almost drove the economy to a second depression, and then Trump, the most corrupt being to ever occupy the presidency. Not only Democrats, but all independents and many Republicans do not want to risk this again. Also please remember that not all Republicans are extremists. There are actually many that are conservative, not stupid.
1
@Minerva
Despite all of the loose talk about division and political violence etc....there are a few actions that could actually trigger this, and you list both: Packing courts and abolishing the EC. Abolishment of the EC would probably result in actual state secessions and all of the chaos that implies. Neither are serious proposals by serious people.
1
@Rusty T serious people do not talk about secession to try to scare others into submission. Both correcting the horrible bias of the Supreme Court and making the US elections democratic are necessary changes to actually make the government represent the people, not a right-wing extremists.
@Minerva Curious why you don't fight harder for the re-invigoration of the 10th amendment. Then California and Alabama could be the "laboratories of democracy" they were always intended to be. Wouldn't it be better to let local people decide how to live, locally...…..sorta like how we didn't like a certain tyrant king over in London. The solution is staring you in the face.
Just as long as we realize that giving our side the authority to take extreme measures frees up the other side to do the same. Democrats, especially the left, spent 365 days harping about Clinton's emails while Republicans kept their eyes on the prize they wanted which was the Supreme Court and elected a man who publicly stated that he grabs women by the genitals. Democrats have not learned the most important lesson from 2016, which is that the rest of the country do not necessarily think like us. Failing to take this fact into consideration is already sending us to a Trump second term. Elections matter. Countries get the government they elect and deserve by voting or failing to. It is 2019, and we are still talking about needing to be excited to go out to vote as if what is happening in our country is not motivation enough. We are making the way for a future charismatic demagogue to excite us and our children to vote for an America for which we will weep from our graves.
1
So, the obvious question. What is to stop the Republicans, once they win the Presidency and the Senate again, from packing on some extra conservative judges? Shall we have an ever-expanding Supreme Court, boosted with extra partisan judges every time one party controls the white house and senate?
In fact, what is to stop Donald Trump from being convinced by Bouie's argument and packing on a few more conservatives in the next few months?
This is a really dumb idea.
4
After Senator Warren is sworn in as President in 2021 would it be possible for Congress to reduce the Supreme Court to seven seats, thus eliminating the last two members confirmed from the court?
2
No, not remotely. Come on already.
3
You can't remove existing Justices except by impeachment.
1
The choice is simple pack the court with people who believe in the country and the constitution or pack it with people who don't.
No, I'm not saying Garland was one of those who doesn't believe in the country or didn't belong on the Supreme Court. I'm saying I both Garland and Kavanaugh both could do a good job there and you don't.
I wouldn't call it packing, I'd call it balancing. Packing is when you deny a majority elected two term president his right to a hearing on the nominee of his choice. Well said Jamelle!
Don’t make any assumptions about Democrats securing the executive and legislative branches in 2020. Have you been listening to and reading comments by Democrats? So many have already forgotten the end game. They have formed the circular firing squad as they attempt to bring each other’s candidate down, ignoring the fact that any Democratic candidate is far superior in qualifications to Trump. Let’s hope they smarten up soon, or it’s 2016 all over again.
2
Isn't it funny how the film industry essentially ended Harvey Weintstein's career long before he was convicted of anything and the American career of Woody Allen although he has never been indicted for anything and for whom the only formal investigation cleared him of allegations against him, yet those liberal judges like Ruth Bader Ginsburg say what wonderful guys those accused sexual assaulters Clarence Thomas and Kavanaugh are.
Maybe it would draw notice if they refused to participate in any decisions that Thomas and Kavanaugh vote for. If there were multiple 5-0 votes, it might finally get across to the country that the SC is now a partisan joke that has long since stop caring about either law or what's in the best interests of the American people.
I also think that, as southern states did with Brown v. Board of Education, states with Democratic governors and legislature ignore the rulings of the SC they don't wish to follow. What's the SC going to do about it anyway?
Hey, Mr Bouie's howls of frustration sound quite like those of conservative Republicans of the 1970's and 1980's as a liberal Court majority imposed pro abortion and pro affirmative action policies on the country. I mean If you can't win the game, then simply change the rules.
5
Mitch McConnell totally agrees.
@Joe B. . . and Joe Biden.
1
Or, perhaps the approach should be to win elections with majorities in the House and Senate, along with the White House, and govern through the Constitution. Mr. Bouie must come to terms that he does not speak for the people of the United States.
5
Sad, another piece written about spilt milk. For those who said the Republicans broke the system, the remedy is easy, prove the case and win elections. As our last greatest president is so fondly remembered as saying "elections have consequences", so respect the views of others which is so lacking in this once great outlet for news and its readers. The Democratic senator from Nevada removed the blocking moves of the minority party leading to these abuse cause by those bad people from rural America. Take time out and look at your words to see how harmful they are to the future of the American experiment. Hate to tell you again this is a republic that our founders wanted and if you ever removed the electoral college there would be trouble and end of all that is good as well as the bad as being governed by imperfect beings. I pray that this paper find its roots in excellence again and provide us with information and allow us to make informed choices.
4
Yes, let's just find a way to neutralize all the opposition. A trifecta is not enough, liberals need total dominance. That's the way, a nice comfortable Orwellian society where everyone is helped on all sides to tow the ideological line...
4
@Brian And everyone is equal ! But AOC is more equal than you plebs. Stand by for your bread and circus.
Do it! I wrote an Op-Ed for our local daily newspaper a year ago (circ 75,000), advocating this course. My phone is publicly listed. Yet I did not receive a single call from an angry reader, though there are plenty of Republicans around here in upstate New York. People know what the Court is, as Trump has told them. Need a new acronym — Rscotus. The R in caps, the rest lower case to reflect reality. Do it. After all, it is constitutional.
1
Be that as it may, Dems have to win the Senate to make it happen, and even that is questionable because there are a few Dem Senators who love America as it is.
1
Hooey.
The Democrats started politicizing the SCOTUS with their Borking of Judge Bork in the 1980s. They harass, and lie, and obstruct the nominees of Republican presidents, while until 2016 the Republican Senators just went along and voted in the nominees of Democrat presidents.
Then Mitch McConnell stood up, applying the -- remember it? -- Biden Rule not to take nominations by a President in the last year of his term when the Senate was held by the opposition party. What was fair for the Democrats under Biden was demonic when applied by the Republicans under McConnell. Nonsense.
Then the Democrats and their allies in the media smeared a good man and a great jurist, Brett Kavanaugh, during his confirmation process. Even after he has been on the Court for almost a year they published a new smear (with a belated retraction that masked an intentional publication of a falsehood).
The Democrats can only put their agenda in place by eliminating the Rule of Law. That is what this article calls for, the End to the Rule of Law, and the Triumph of the Will. That will mean the end of America.
2
What’s hooey is to argue that Moscow Mitch just went along with President Obama’s nominees. Those 168 judges Trump likes to bellow that Obama left him as a gift?
McConnell refused every one so much as a hearing. And before that, it was filibuster after filibuster.
You could look it up, but you won’t.
2
Pack and name 20 ideologically pure liberal/progressive Supreme Court Justices. Then you will have a progressive court until the Repubs further pack SCOTUS when they win the following election or when the country slides off into oblivion.
"To Balance the Scales of Justice, Don’t Be Afraid to Pack the Court"
President Warren (just wait) will have a chance to appoint at least 2 progressive justices - when RBG and Clarence Thomas retire. That will balance out the Court.
100 percent in agreement.
1
Although the preponderance of my political convictions lie on the left, I maintain my status as an independent for a number of reasons, not least of which is simply the laziness and incompetence of the left when it comes to understanding the system. It ain't rocket science, as they say: get off your keister, organize your base, get out the vote, win some elections and appoint judges. Simple...
2
And what of Biden's role in all of this? When the Democrats controlled the Senate and he was Chairman of the Judiciary Committee he conducted a sham hearing, by almost exactly the same methods the Republicans used to install Kavanaugh. He put Clarence Thomas on the Court, when he could have prevented it as Moscow Mitch prevented Garland's confirmation. Biden's pathetic excuse is that he voted against Thomas although he knew that vote would not prevent Thomas' confirmation.
1
Packing the courts is just a way of bypassing the judiciary altogether. If a president is willing to do that, he might as well just do like President Andrew Jackson did when the Worcester V. Georgia supreme court decision went against him. Jackson just ignored the court's ruling, knowing that there were not enough votes in the Senate to remove him from office. However, once a president gets away acting that way, the constitution becomes worth no more than the paper it is printed on.
Our Constitution was not written for proportional representation and governance according to groups but by and for individuals. The totalitarian nature of these Party controlled politics does not seem to bother anyone, but it’s turned our government from one determined by the governed into one controlled by big and powerful groups.
I agree completely with the arguments and tenor of Mr. Bouie’s article. Here are some other some other imbalances in the system that Conservative Republicans have gamed into existence during our lifetimes or are seeking to game into our future, ever more fragile Constitutional Democracy:
* disproportionate distribution of power disconnected from the will of the people creating minority rule at all levels, but especially of local and state governments, where the real effects of minority tyranny are can be felt most acutely in the lives of individual Americans. Unbalanced representation at local and state levels is also the origin of the mess we see at the federal level. We must work to balance out federal, Conservative hegemony in the short term while reversing its source of power at the root.
* interrupt the emerging strategy elaborated by Moscow Mitch and his cronies that the Senate should do its constitutional business and vote on House-passed, nascent laws if & only if he/they are sure Emperor Trump will be pleased with finished product and sign the bills passing Congress.
* fix Senate rules so that some semblance of it as a functional, deliberative body returns to the federal system.
* increase the size of the House from the current 535 members to a number that more accurately reflects the size of our population by results of Census 2020.
*...
Liberal thinkers have a penchant for too easily becoming distracted. This must surely end very soon!
1
History will not be kind to this sort of argument. Let us be clear about what Mr Bouie and his supporters are really doing --- subverting the constitution, destroying our Republic's institutions, and imposing their will without concern for the ballot box. There is a word for this sort of thing and the great blessing that Mr Bouie and the Left are doing for us is making clear who the authoritarians are.
12
Untrue. If congress changed the composition of the court, it would be acting as a duly elected legislative body under the constitution. Exactly not unconstitutional. Exactly not enacting by fiat what could not be won at the ballot box.
5
@JMR
The constitution does not prohibit expanding the membership of the Supreme Court.
What in the world are you talking about, Sir?
1
This situation has occurred before. FDR saw the high court as opposing good means to recover from the Great Depression. He was right but the court packing was an expediency that would likely have only served his purposes for one era. Our government works best when representatives are not beholden to political parties and when the judiciary is free from political interference. Packing the courts just institutionalized the distortions introduced by powerful political parties.
Supreme Court justices should be nominated differently. A committee, bipartisan but made up of neutral people, maybe even randomly selected like jury duty, informed by the ABA, submits 3 names. The Senate interviews all 3 with the same questions, worked out in advance. Then vote.
YUP. Democrats should put a handful of respected, trustworthy legislators on investigations of every tRump appointee, with possible impeachment in mind. Any judges appointed by Democrats had better be squeaky clean. Only qualified, honest, uncorrupted candidates need apply. There HAS to be SOME difference between us and them.
1
You are right, we gonna stack the courts with constitutional judges, not the left wing liberal judges you want, who think they can make or legislate from the bench. It is not their job.
Problem with democrats they think they can have the courts write the laws, which is why we need to keep them out.
We Suffered to much under activist judges.
2
Could not be more in agreement with this column and the veracity of its argument. It will become ever more apparent as the right wing SC nibbles away at citizen rights vis a vis corporations and government — especially to the benefit of the Executive.
2
"At the same time, there are broad readings of the Constitution — ones that give our elected officials the necessary power to act and to solve problems — and narrow readings, which handcuff and restrict the range of our government."
If you spend any time at all reading the history of how the Constitution was written and ratified it will become quickly clear that restricting the range of the Federal government was THE WHOLE POINT OF THE DOCUMENT.
It may have been Pres. Reagan who pointed out that "Liberals see a problem and look to the government for the solution; conservatives see a problem and look to the government for the cause." Nothing illustrates that more than the statement above of "ones that give our elected officials the necessary power to act and to solve problems". The Federal government is not supposed to be the be-all and end-all to solve the problems of the country. That belongs primarily to the people, acting either individually or in concert in voluntary associations. The people also have recourse to their municipal and State governments, which are much closer to them, more readily influenced by the people and more attuned to the particular local conditions and consequences. The Federal government should be the very last resort for solving America's problems. President Trump is appointing judges who understand this and understand that the power of the Federal government is to be kept limited.
5
@RonF
Bouie is not interested in a Federal government bound by rules, probably because he believes that it's inevitable that the country is shifting towards his POV.
2
@RonF You cannot state it any better that this. The 10th amendment was there for a reason folks. Its nullification to Logan Act status is one of the problems of the last 100 years. 100 .
Yeah, we really need to live our lives in congruence with the founders. We need slaves, for instance and these uppity women can leave the voting to real men.
What is the endgame here? Like, after the Supreme Court passes 15 Justices in 2026, when do we say "huh, politicizing the last institution in America was a bad idea?" I'm not saying that it's not a *rational* idea, just a bad idea. However, I suppose that if the Democrats are all out of good and rational ideas, a bad and rational one will suffice.
3
For the better part of of 60 years, the Supreme Court has been dominated by Democrats. During that time the NYT and all the liberal media assured us that the be-robed Democrats and their liberal rulings were the epitome of wisdom.
But now that the Court has turned conservative, all we hear about is the necessity of packing the Court (with more Dems).
5
"It’s been 150 years since it changed the size of the Supreme Court."
That's reason enough to leave it the way it is.
4
"Congress, according to the Judiciary Act of 1789, decides the number of judges."
I saw McConnell on TV when he was blockading the Garland nomination say "there's nothing in the Constitution about the number of Supreme Court Justices. It's been 5, then 7, then 9. And as long as there's a Democrat in the White House, it'll be 8."
That's all the justification the Dems need to create new seats on the Court and the rest of the federal judiciary and fill them with people as far to the left as any Republican nominee is to the right, as just as young. Replay that video over and over and over and over and over...
As for the Republicans retaliating when they later take power, appointing Justices who correctly realize that gerrymandering and voter suppression laws are unconstitutional would greatly reduce the risks of the GOP regaining power. Voter suppression and gerrymandering are the foundations of Republican political power. Without voter suppression laws, Republicans taking the Presidency and the Senate becomes much harder. Without both voter suppression laws and gerrymandering, Republicans taking control of the House becomes even harder still.
Thus, should the Dems pack the Court, they should give priority to Justices whom they know will never meet a gerrymander or voter suppression law they will not strike down. All other issues are secondary.
2
"both presidents have empowered ideologues and aggressively spread their influence"
Judges who act on what the Constitution says are hardly "ideologues".
"The goal isn’t to make the courts a vehicle for progressive policy, but to make sure elected majorities can govern — to keep the United States a democratic republic and not a judge-ocracy. "
Right. Is there anyone reading this who actually believes that Bouie is being altogether honest here?
That is EXACTLY the goal. Worms turn. Progressives had a good run in the federal courts. They did a lot of things with which I agree. There were few progressives during those years who publicly expressed worry about a "judge-ocracy".
Wanting to pack the courts because your side has started to lose more frequently is what Bouie would be harshly criticizing were someone on the other side to propose it. Part of the role of courts can be to serve as brakes on majority control when they step in to guarantee constitutional rights--also brakes on majority control.
3
Jamelle Bouie’s proposal to pack the federal courts acknowledges what everyone already knows. The federal courts have become extensions of the Republican Party and Democratic Party.
The number of appellate court judge has more than doubled and the number of district court judges has more than tripled since 1950, and many are not shy about legislating from the bench or issuing injunctions to veto legislation or executive orders. This is why Supreme Court and federal court nominations are filled with fear and loathing.
Bouie’s proposal court packing proposal is a game Republicans as well Democrats can play. We should convene a new constitutional convention to resolve perceived constitutional ambiguities so federal judges can no longer pretend the Constitution needs interpretation
Democratic candidates who waffle on the answer to "would you pack the court" should be defeated.
I haven't heard Senator Warren on this one: I hope she says yes.
Republican voters, evangelicals have been savvy enough to make the Supreme Court a pre eminent issue.
The argument against changing the system is the Court should provide an anchor in turbulent times, holding us to some bedrock values.
The truth is, the Court has never been that, is the most ideologically driven and unaccountable part of our government.
"This is the stuff you can't vote on," is the guiding principle.
If the President appointed 2 new justices per term, then in conservative times, the Court would drift that way, and in liberal times it would shift left. Nothing wrong with that.
What we have now is a "rule from the dead" with Trump era justices in a position to rule for the next 30 years.
That should not happen whether it's Democrats or Republicans in power.
1
These kind of articles show why divided government is such an unintended gift and why we are better off not having power concentrated for any period of years with ideologues of either party. The best case, as now, is having politicians doing as little as possible and allowing the rest of us to go about our business.
5
The right-leaning SCOTUS, as presently composed, will stymie needed progressive legislation unless a Democratic Congressional majority usurps SCOTUS power through legislation. Though legislative action might be the preferred route, it is not the only one.
As the present incompetent and corrupt administration is a clear and present danger to democracy itself, I am open to any path that returns the country to its stated ideals.
2
The “needed progressive legislation” is of course a matter of opinion. A lot of people, I’d wager, would disagree with you about what progressive legislation is needed.
1
@Arthur Landry You are correct. However if one considers that even a small fraction of the Trump vote in 2016 was from an electorate dissatisfied with what it consider a government steeply tilted toward the wealthy, that cohort would exceed his electoral majority, thereby saving us from this incompetent and corrupt administration.
If either side attempts to "pack" the Supreme Court, every election for President will be an election for the majority left or right Justices on the Supreme Court which will completely thwart its purpose as an independent third branch of government. There is no excuse for "packing" the court other than ideological power grab. Perhaps the Supreme Court itself would rule that it would be unconstitutional.
7
Another article that ignores that the Democrats set the precedent for both Gorsuch and Kavanaughs appointments. Re-adopt the filibuster for all judicial nominees to force a real consensus for judicial nominees. This will create a much more politically neutral court - which is what we need. Not a court where the judges are all partisan. Go ahead pack the court but within 8 years the GOP will win, this is american politics, there are no permanent political victories, and the GOP will pack it their own way....
7
Indeed , pack the court . But also revisit the Marbury vs Madison decision when the court decided it could call laws unconstitutional . This is not in the Constitution .
Stick with the original position the constituent took : the Supreme Court does not review laws of congress and actions of the president.
1
This is exactly what is wrong with the way that both parties approach the issue of Supreme Court appointments. Packing the courts and adding more judges would set a precedent - then the next Republican president will pack the courts even more. And so on. Eventually we'll have 131 supreme court justices. No thanks!
6
Make Washington DC and Puerto Rico states! That will also increase the power of the Senate and the House in favor of the dems. Plus another two governorships. The only reason it has not been done is because they vote Democratic. And, well, we can’t anger the Republicans in an obvious power grab (sarcasm).
2
According to the logic of this article. I think I should be the only Justice on the Court and make all of the decisions.
5
I've studied the judiciary for over 30 years. In other times, I would be vehemently opposed to expanding the Court for political reasons. Now, I've reconsidered.
Mitch McConnell denied a sitting President of a hearing and a vote his nominee to the Supreme Court. McConnell ignored his constitutional mandate to do so. The GOP has stolen a court seat to which they were not entitled. The Democrats need to restore the balance, and should do so.
3
@ATronetti
There is no such Constitutional mandate. The Senate's role is to advise and consent. McConnell advised President Obama that the Senate would not consent to the nomination. The Senate's Constitutional role was fulfilled.
4
McConnell denied the Senate the chance to give or not give consent. McConnel is not the Senate.
1
I supported Obama. Twice. But it was never with blind devotion and thus I'm comfortable saying what so many are not: he shares some of the blame, in more ways than one. First, when McConnell's handwriting was clearly on the wall, he could have, and should have recess appointed Merrick Garland to the court. And he could have, and morally should have, spoken out against Kavanagh being appointed without a proper vetting.
One can't say all norms have been broken on the one hand, but that refusing to break one in the genuine cause of justice is somehow beyond the pale.
Do we, faced with an intractable foe determined to subvert the demonstrated, legal will of the people just lie down and tell ourselves "we die, but we die *good*" - or do we finally rise and fight with whatever tools we can muster?
Nothing less is at stake in 412 days. My preference is Elizabeth Warren, but I intend to VOTE BLUE - NO MATTER WHO.
9
Leave the "Old Nine" on the court as they are until they retire or die, but... establish a "New Nine" seats whose terms are fixed at 18 years, staggered to start one every two years, and non-renewable. Further, establish a timetable for preventing the systemic abuse that Republicans have engaged in recently.
For example, the start of a new Congressional term is on January 2nd of even-numbered years. Mandate that the President nominate three candidates by April 1st, and mandate that those three nominees have their Senate confirmation hearings ended by May 1st, June 1st, and July 1st respectively, with a confirmation vote by August 1st, leaving plenty of time for the confirmed nominee to be seated on October 1st which is the constitutionally mandated start date for the new supreme court term.
Should one branch of government fail to fulfill its obligations under this arrangement, the other branch shall have the right to proceed without the other. If the president should fail to nominate three candidates, then the Senate may make the vacant nominations itself. If the Senate should fail to hold timely hearings or confirmatory vote, then the President may directly appoint a Justice to the vacant seat.
If a supreme court seat should become vacant before the end of its 18-year term, a similar process shall be followed to fill the vacant seat. No person who has served 9 years on the supreme court may be nominated to serve another term, making the maximum term of service 27 years.
6
I have felt that court packing was an unpleasant but necessary remedy ever since Mitch denied Obama. However, the only way this could work would be to take extraordinary measure to choose candidates who had a spotless record of even handed jurisprudence—neither progressive nor conservative, rather pro democratic, reinforcing the fundamental values upon which this nation was founded.
3
A better solution is to leave the Supreme Court at 9 Justices, but expand the number of Judges at the District and Appellate levels.
Today, it takes years to get take a lawsuit through the federal courts. It is truly Justice denied. A functioning Federal Judicial System requires a rocket docket where decisions can be made in less than a year. Look at how the slow pace of the Courts is impeding Congress’s ability to do oversight of this Administration and how he is using that slowness to continue his abuses.
Doubling the number of Federal Judges would serve Justice. It would also offset the Trump Judges being put into place. And if that and Democratic control of the Congress and Presidency does not stop Judicial Rule of the nation by the Roberts Court, then both increase the number of Justices and term limit them to something like 17 years.
The one thing that cannot be tolerated is the Hard Right’s takeover of our Justice System for the purpose of imposing their will on our Democracy.
4
I don't disagree Bouie (really, what do we have to lose at this point?) but the first step a new Democratic president should take is to publicly ask all the Trump-appointed judges to resign.
Of course, few if any will do so (unless by 2021 his presidency has become thoroughly discredited in the eyes of a vast majority). But a powerful speech laying out all the myriad reasons why they should do so will properly lay the groundwork for more radical measures.
1
Pete Buttigieg is the only Dem candidate who makes reforming the court central to his campaign. He calls for an increase in the number of SCOTUS judges to 15. And more than that, he believes a number of them should rotate on the court for 5 years with some of them selected on a consensus, nonpartisan basis. I think this is a winning position for him and wish you had noted his plan for transforming the Supreme Court in this article.
2
Bravo. New tactics to counteract the forces undermining the American democracy. It's high time Democrats cease playing Republican-lite. Take the gloves off and fight harder to keep what rights we still have.
Legislation requiring Supreme Court Justices, federal judges and U.S. Attorneys to fully disclose their sources of outside income, specifically speaking honorariums. Impose a code of behavior that discourages playing footsie with right-wing organizations.
Congress should begin looking at the organizations breeding future jurists like The Federalist Society. There may well be dozens of Brett Kavanaugh's lurking out there.
Let's play hardball.
2
No, what we really need is Constitutional reform. Ban the Electoral College that produced the two "minority" administrations that the author mentioned. Take away the power of a single Senate official to block bills he doesn't like. Pass a British-type rule in which lack of confidence in the executive can force a new election. Create term limits for judges so prevent politicians from picking young men for lifetime positions.
The proposals of the writer will simply backfire on the Democrats, giving the Republicans new ideas and weapons if they get back in power. It's already happened in some cases. The Democrats thought it was a clever idea to limit the filibuster, then found themselves helpless to fight the Republican majority in 2016-2018.
2
@Charlesbalpha
And your going to get 38 states to agree how?
1
Take two additional seats to restore the balance (easy, statutory), then make every effort to switch to 15-year terms (hard, constitutional).
2
The issue underlying the Republican take over of our government is whether and when the majority rules our country. The Republicans use this rule only when it suits them. So they use the electoral college to impose a minority supported government after having blocked all legislative initiatives under Obama by denying application of majority rule by Congress, instead applying the "filibuster" rule. They then change the rules for appointment of Supreme Court justices to a simple majority rule, allowing them to forever politicize that Court. The Democrats need to fight for a simple majority rule government, the Supreme Court is a good place to begin.
2
The author is absolutely correct. If the Democrats win the "trifecta," the Senate should abolish the filibuster and increase the Supreme Court membership to eleven. This approach would eliminate the effects of McConnell's unethical power play against Merrick Garland. It would be restorative, not an escalation, and a just result reflecting the will of the People instead of a rump, anti-democratic minority.
2
Yes! Pack the Court, for sure. Anyone who believes that SCOTUS is not an arm of the Republican Party did not pay attention in 2000. Mitch McConnell destroyed any semblance of respect for the Court's balance by refusing to do his Constitutional duty by not even allowing Merrick Garland – deliberately chosen as a centrist – a hearing, much less a vote.
Democrats should NOT fear packing the Court under these circumstances. They owe it to the American people to restore a balance to the Court that reflects the true sentiments of the majority of the people, which is NOT hard-Right conservatism.
7
I'm really tired of the argument that Gorsuch's seat was one Obama was "entitled" to. No. No President is "entitled" to any seat. He's entitled to make a nomination, and the Senate is entitled to vote (or not vote) on that nomination. The Senate declined to hold a hearing or confirm Garland, because he was a far-left liberal. Had Obama appointed someone who cared about the Constitution like Gorsuch or Kavanaugh, the Senate would have confirmed him. It's that simple.
10
What I will never understand is whether people really believe what you’re claiming. To me, it’s utter nonsense: to refute just one statement, a glance at Garland’s moderate record gives the lie to those who’d call him leftist. The takeover of the Court must be balanced with citizen- scholars, not ideologues and serial sexual harassers.
I appreciate the sentiment; but this is a prescription for seesaw justice, not balanced justice.
9
The Democrats, once in power in the Senate should change its rules to allow a filibuster ONLY by Senators representing 60% or more of those citizens of the USA who have representatives in the Senate. They should make this rule change immune to the "nuclear option". Then they should silence the outcry from the Republicans by suggesting that Puerto Rico, Guam, and Washington DC become states represented in the Congress. At present Senators representing a very small fraction of the people can block any legislation. And, many are not represented in the Senate at all. Both of these facts are very real and important issues.
3
@Rolfe
Why not just get to the meat of your proposal and say Republican Senators can't vote...
2
If the Democrats lose in 2020, they are history. They need to stop playing Charlie Brown to the Republican's Lucy. The time to fight was years ago, but let's get to it to save what is left of the Republic.
4
As appealing as it sounds to pack the supreme court, I feel that this is a dangerous precedent to set. The entire structure of our government is based on checks and balances between three branches of government. If each new government could simply add new justices to the supreme court, this would cease to be a check on the actions of that government. It would be reminiscent of many third world dictatorships, where courts simply rubber stamp the actions of dictators. This may sound great when the dictator agrees with you, but what happens when he doesn't?
13
No, sorry, two wrongs do not make a right. Court packing? Forgetaboutit. One should not assume the worse of Chief Justice John Roberts, its his name up front now so don't be surprised when he becomes the new swing vote. Don't panic, stay strong, get out the vote.
8
I agree that the Garland fiasco was obscene and adding 2 justices to offset that may be the best legitimate response. As to the remainder of the argument, sorry, no. Although I agree with much of the political objections (and disagree with the politics of the appointed judges), political motivation is a terrible reason to revise the system.
If you don’t like the outcome, then convince voters to vote differently— do not go try to change the rules of the game.
And if you can’t convince the voters, then try different arguments or admit that your political position doesn’t get enacted — do not go try to change the rules of the game.
Sorry, being part of our democracy means accepting that your positions and ideas aren’t always adopted.
4
I trust, to some extent, that Judges sometimes grow into better Judges when faced with their responsibilities and it is with this thought I don,t agree with term limits. Term limits only politicize a point in time. But adding Justices does a lot to fracture the constant two way split and adds the chance that Justices may find good reason to be more independent.
2
Remember, if Hillary won, she would have done the same, pack the court with liberal jurists.
Elections have consequences and the president get to pick his or her justices.
Packing the court is not the answer. Winning elections is via the electoral college system which is constitutional system we have,
Don’t like it, change the constitution and good luck!
236
@alec The only problem with that is if Clinton had won, the first appointment would have been the appointment that Obama was entitled to. Obama was the president in the constitutional system we have, so it was his pick to make.
181
@Quinton: Obama made his pick, and that pick was not confirmed by the Senate. As the Constitution requires. Many picks for SCOTUS has been rejected by the Senate. Many that were qualified; but politics was involved (it always it). Remember Robert Bork?
Obama lost the House and Senate. Elections have consequences.
36
@alec
No, the article says that Trump has already appointed about 1/2 of the judges that Obama appointed over his entire 8 years in office. In other words, if Hillary had won, McConnell would have blocked her nominees.
91
Sounds to me like Democrats have been asleep at the wheel for years allowing Republicans to mold the court system to their liking. You suggest that Democrats play "hardball" in response. I sometimes wonder if that type of response is even possible for Democrats. So far in this election cycle, Democrats have not shown an aggressive, hardball campaign style. Will that happen once a nominee is selected? As Trump is fond of saying: "Let's see what happens."
69
@RF
Their voluminous writings and opinions to the contrary, all it took from hired guns like Scalia, Alito, and Roberts, was some well chosen boilerplate about fairness during their hearings, and they gave cover to a number of Democrats to vote for them. The Democrats should have been playing hardball years ago.
49
Ginsberg was nominated unanimously despite obvious political differences with the Republican Senators who voted for her nomination. This was the convention in the modern era until the Democrats killed the Bork nomination purely based on political doctrine. This was a seminal moment in modern politics that led to what we have today.
9
@Tom Johnson What you said is true. Republicans like elephants have long memories. As far as a nominee being killed for "political doctrine," I would say that in the case Bork it was extreme political doctrine. Had I ben in the senate, I would have voted no on Bork.
10
In order for the Democrats to play hardball- the leading Democratic candidates need to ally on the same team. I am absolutely and completely done with the Democratic nihilism that has these candidates fighting for the top spot, perfectly happy to attack each other and hand the election to Donald Trump if they lose.
So yes, by all means play hardball to pack the Supreme Court, and for a host of other civil liberties, human rights, and fiscal responsibility reasons. Just learn, please, that democrats need to get on the same team to play the game and win.
88
@common sense advocate
The purpose of the primaries is for candidates with differing backgrounds and points of view to make their case to the electorate. How do you suggest the Democrats stop "fighting for the top spot"? Play rock, paper, scissors?
14
@common sense advocate. The nature of the questions asked at the Democratic “townhall debates” is such that the candidates will sometimes disagree with one another. If they didn’t do that the complaint would be that they are all simply bragging about what they want and who they are as individuals.
In thinking about this I think it might be interesting to replay some of the Clinton-Trump confrontations today. I wonder if some voters might find themselves amazed at how little Trump actually knew about anything in answering questions. It would be useful to have that knowledge for next year’s confrontations, assuming that Trump doesn’t claim he is “too busy.”
7
@common sense advocate
I don't call it "nihilism" for the Democrats to fight each other in public; I call it short-sighted greed.
what makes you think the Democrats picks are so unbiased and fair? Are they not more liberal leaning, pro choice,anti 2nd amendment, and think the Constitution is a " living document". They always vote in a block. it seems that a Republican picked judge is more likely to vote "on the other side" than a Democratic picked Supreme Court Judge.
85
@mickey Have you actually looked at the votes of the non-right-wing judges? They certainly do NOT "vote as a block." They often do vote with their far-right colleagues.
The far-right justices, on the other hand, much more often vote as a bloc (not a "block.")
There are legitimate disagreements about the particular issues you mentioned, but it's absurd to say that the non-far-right judges believe in "living constitution" while the far-right justices respect the original meaning of the Constitution, as you imply. There are disagreements about how the Constitution should be interpreted; but both groups see it as they believe it is, and non-far-right justices are no more "activist" than the far-right justices. Indeed, if you actually look at their rulings (rather than just believing everything you read on Fox News) you will find that there's a very good argument that the far-right justices are much, much more activist - much more inclined to make rather than interpret law - than the non-far-right ones.
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@mickey judicial conservatism is not the same as GOP or evangelical conservatism. Judicial conservatism means adhering to precedent, and deciding cases narrowly. In reality, Scalia was a political conservative, but a judicial activist. Obama's chosen nominee was not a judicial activist, but a conservative. It was a very middle-of-the-road nominee.
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@mickey
Yes, they are more liberal leaning, and pro choice, and every document is a living document.
And that's a good thing. Much rather have that than the catastrophe that is conservative politics.
Let's stop faking that we're talking about anything other than ideology & power here, yeah? Conservative ideology is vile, and we should be doing our absolute best to minimize its impact.
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Democrats will introduce the hardball tactic. Republicans will run with it and blame the democrats for starting it, much like with the new lower filibuster standards.
6
Anyone who thinks that voting doesn’t matter, or that they couldn’t support a candidate who fails a purity test, needs look no further than judicial appointments. Presidents matter. The Senate matters. Supreme Court placements in particular matter tremendously. Those seats are for a judge’s lifetime, the power lasting long beyond that of whomever placed them.
5
Having previously argued for this strategy, I will merely add here that either Justice Gorsuch or Kavanaugh could spare this nation further controversy by doing the right thing, once this embarrassing presidency is over, and resign.
Merrick Garland was no Abe Fortas; he deserved both a hearing and confirmation, based his long history of nonpartisan judicial excellence.
Packing the Court once Democrats have the opportunity will amount to yet another escalation in our ongoing battle over it; but we didn't start this fire. Reagan and H.W. Bush both had the opportunity to see a Justice confirmed for every seat that became available to them, even in the aftermath of Robert Bork's rejection.
Until restitution is made for the McConnell theft of Obama's final seat, a seat that was paid for by two resounding popular and electoral vote victories, no peace is possible on this issue.
6
We can’t let the court cripple the response to climate change, because it’s exactly what the GOP appointees will do. So yes, pack the courts.
2
Mitch McConnell broke the rules. He continues to break the rules. Why are the Democrats the only political party that is expected to act in a rational (i.e., fair and responsible) manner. NOTHING is expected from the GOP as they will do anything, steal anything, say anything to stay in power. No one expects them to be fair, responsible, or decent, or even honest these days. They would add two justices in a heartbeat.
They would also haul in a Justice who lied under oath and subject him to Benghazi-like interrogations. The Democrats are supposed to be above this? Why? Where has it gotten us?
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@CarolSon
What rule did he break? The Biden Rule? That was the Rule he based his decision on. Surely you don't refer to That rule so which rule is it that he broke?
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@CarolSon @GregP
The so-called "Biden Rule" was a comment made by Joe Biden after the very divisive Clarence Thomas hearings, in which he simply said that it would probably be best to delay any more appointments, if they came up, till after the election. It was in no sense a rule, as McConnell recently acknowledged when he said they would fill any appointments that came up before the 2020 election.
McConnell routinely has refused to let any legislation from the House--like gun control, for example--come to the floor. He is as responsible for the collapse of our democracy as Trump is.
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@GregP
There is no "Biden rule" and when asked if he would seat a SC justice next year, of course McConnell said yes. He broke all precedents by not allowing a popular-elected President to choose a Justice. He does not bring up legislation that huge majorities of the country want. He rammed through a nominee who lied under oath. If you want to pretend he is just exercising his Constitutional power, go ahead. We all know the truth.
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WWWEEE...its so fun sliding down the slippery slope of democracy's destruction. I'm not suggesting packing the court could lead to a slippery slope, I'm saying we're already on it and packing SCOTUS is just accelerating it.
I don't have a good answer for what I see is one stolen seat (Garland's), but I fall to see how court packing is the answer to stopping our descent into a post-democratic society. At best it is a "two wrongs make a right" argument. And it does not address the logical next question: What will happen with the GOP regains the House, Senate and Presidency again? Their moves to further pack the courts will only negate the Dems move. When does the madness stop?
12
This is a lawless suggestion, which reflects the lawlessness which has always been a hallmark of the extreme 'progressive' left. Since the 1960's, when I first encountered them, extreme leftists have never had any compunction about disregarding or destroying fundamental principles of our form of government. The underlying belief in a 'vanguard party' (we small group of progressives know what's best for you and we're going to enforce it by any means necessary) is the hallmark of such an attitude, evinced by Mr. Bouie, and now reflected in his court-packing suggestion. If progressives and leftists win elections and court appointments then democracy is wonderful and so is the law and our form of government - but if not, as Mr. Bouie candidly advocates, and his side doesn't win, then the courts ought to be functionally destroyed as the third branch of government. His suggestion in this context isn't 'hardball' (I laughed when he complained about a 'judge-ocracy'; has he heard of Roe v. Wade?) - it's a reflection of the nihilistic impulses of hard-left progressives everywhere. He will destabilize the most basic structures of our government to get his way. This is the type of suggestion that so concerned the authors of the Federalist Papers - mindless factionalism, disregarding all to win.
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@Tom Wolpert Changing the size of the Court is entirely legal. It carries the exact same legal authority as the past two Republican President's who "won" with a minority of votes. What is illegal is the 60-vote gerrymander rule that clearly contradicts the intent of the Senate and gives even more power to small states. Republicans have abused this repeatedly over prior decades. Additionally, refusing to advise and consent on a Supreme Court nominee was also arguably illegal. But changing the size of the judiciary: entirely legal and ethical.
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@Tom Wolpert
It's lawless to follow the law? Well, based on that, I guess we know why the Republicans refuse to follow the law.
Federal law exists to allow Congress to determine the size of the Supreme Court.
It is, in fact, the exact opposite of lawless. It is lawful.
35
An act of congress isn’t lawless. Just the opposite.
Congress created the court as it stands, including the unlawful Gorsuch, who filled a vacancy denied to a duly elected president and who was appointed by one elected by a minority.
Congress can also modify the court. That’s what it’s there for: to make laws. Not to kneel before judges.
21
The Supreme Court has always been a political body. There is no golden past where it wasn't for us to return to. The problem of this particular highly politicized court will be solved, perhaps by increasing its size, or by negotiating the chaos that will follow when some state, group of states or the Executive simply refuse to follow its dictate and a government controlled by Democrats refuses to enforce its rulings.
The Court works on the assumption that it says what the law is and that its rulings will be followed. What happens if and when the Court becomes the only branch of government that believes that?
That possibility seems to be John Roberts nightmare. Who wants to be the Chief Justice who resides over the diminution of the Court's power or loses its legitimacy in the public mind (a process already underway)? There are only so many times the Chief Justice can declare there are no Republican or Democrat justices, demonstrate otherwise in 5-4 votes and get away with it. So while I doubt that truth will triumph over falsehood, humiliation will hunt down arrogance. Every time.
3
The writer should have asked how is it possible for "courts as a neutral arbiter" to need to be packed?
The answer is, that there is no "due process" in the "judicial process:" as I learned in my litigation, federal judges simply replace parties' argument with the bogus argument of judges' own concoction so as to decide cases the way they want to, not the way they need to. When I sued judges for fraud, DAs defense was that judges gave themselves the right, in Pierson v. Ray, to act from the bench "maliciously and corruptly." Bizarrely, the press refuses to cover this.
Define "due process" (which is currently undefined) so that judges can decide cases based only on parties argument, denying them the ability to act as parties in the very case before them as they are free to do now, and your no longer have a situation where conservative judges rule differently from the liberal ones. Only this would be justice. What we have now in the absence of due process in the judicial process -- is kangaroo courts, not courts of justice.
2
I honestly don't think it's complicated. The Republicans, as currently constituted, don't care about the constitution or democracy or any of that. They really care about power - and really, not even that, absurdly enough. They care about "winning", whatever that means. That's why they love Trump, he's always crowing about how he's a winner.
The evidence for this is when Trump won, if you look carefully at what right wingers were posting is that they were delighted that Trump infuriates liberals. They really revel in the misery and fury Trump causes liberals and minorities and the rest. It's basely tribal.
This is the game they're playing: win at all costs. Democrats and the left must respond in kind, or be crushed. It's not pretty - in fact, it's pathetic - but this is what they've left us to do.
4
Machiavelli would be 'proud' (not really!) to see his quote "the end (minority's rule) justifies the means" (abuse of power)...in the hands of unhinged republicans, seeking to corrupt democracy. And the current Trumpian pluto-kleptocracy may be it's base, and to expand prn. Shameful of course, but no one seems to care, right? Complacency is being installed as we speak...unless we wake up and take action and stop this outrage. This can only occur when the usual checks and balances of the various branches of government are gone.
1
@manfred marcus if the Democrats can win an election, they can appoint judges
2
@qisqisqis Why did you forget Gorsuch's case, a stolen seat?
Democrats don't do 'hardball', they're soft.
Therein lies the problem:
Dems have not remotely risen to the existential assault frome 'redstate hate' since Newt Gingrich launched his dirty-war on liberalism.
The price paid by Americans & the world for the disaster wrought by these radicalized, Machiavellian republicans is incalculable.
As we saw in North Carolina, Democrats so often don't even vote, hence their failure to contain republican extremism since Bush v. Gore.
Unless & untill some opposition party can muster the spine to decisively turn the tide against radical 'redstatism', our democracy & any hope for ecological salvation, is toast.
4
@Tldr
Question here, sincerely: "As we saw in North Carolina, Democrats so often don't even vote" -- To what does this refer? The recent Bishop election, or something else?
@Bill Nichols
Yes, the Mcready/Bishop special election. Low turnout expected, but seriously? Seems the 'resistance' turned out only ca. 35%.
Who wins in the end? That 'Bathroom Bill' guy!
Which exposes another fundamental flaw with Democrats, epitomized by the frakas over the Bathroom Bill.
The bill was designed to radicalize redstatists, all over a problem that didn't exist except in the minds of the most extreme of evangelicals.
In the end, NC reversed most of the lunacy of the bill under economic pressure from business responding to public outcry.
But the 'Resistance' took up the cause of the exceedingly small 0.6% of U.S. adults who identify as transgender, with a misguided histrionic militancy that would only inflame the already-radicalized redstate base like a national brush-fire.
Instead of a strategy, Dems picked this local NC issue to go completely nuts over, right in front of a critical election.
I sensed this helped galvanize reactionary anti-progressives across the country toward Trump.
2
I think you’ve missed the point, the US is no longer a democracy. Courts don’t matter. Justice is a sham. GOP Judges are partisan. They are not independent parties. They owe fealty to their to the GOP masters. Lies and corruption are the norm.
Our government has been taken over by the a narrow segment of the 1 percent and their proxy the GOP. Next you’ll see further erosion of human rights and government services till the transition to oligarchy is complete.
1
@Will
This is extreme hyperbole. Do you have evidence to support these statements or are you just regurgitating progressive talking points? When I last checked, the Speaker of the House, which controls legislation in this country, is a Democrat. Is that body corrupt or just the Republican controlled Senate?
Citizens, have, for generations, had to manage through government that has not always represented their specific interests or passed laws that they disagree with. They trudged on, voted and advocated for the change they wanted, some of it successful, some not. But now that you are experiencing the same thing, the entire system is corrupt? Please. Get some perspective and quit the whining.
2
Trump has been able to pack the courts with conservatives because liberals did away with the age-old filibuster to get more Obama appointees on the courts. Radical actions have unintended consequences. Mr. Bouie in his cry to pack the courts with liberals would end up destroying the courts as impartial arbiters since Republicans would do the same thing when they are in power, resulting in a politicized judiciary and a banana republic.
11
Um, setting aside the ahistorical unprecedented use of the filibuster by Republicans during the Obama administration, which hamstrung the courts, the Democrats left in place the filibuster for Supreme Court nominations. It was McConnell who eliminated that, as he would have done regardless, because convenient, because power.
Any protest by Republicans about packing the court is crocodile tears. Two words: Merrick Garland.
2
@Alex They would have done it anyway this term. The Dems didn't 'cause' anything - they elected Obama, a black man, to the highest office in the land. That was enough to start the current win-at-all-costs panic.
The lifetime appointments of Gorsuch and Kavanaugh are the result of Democratic decisions and candidates. Do be afraid to make this call to Pack the Courts because the Voters won't elect you if you are going to do that. So thanks for being honest and giving me yet another reason to never vote Democrat in a National Contest.
8
We should definitely pack the courts if we win senate and presidency. McConnell did worse denying Obama his constitutional right to nominate judges when he refused his constitutional duty of advise and consent.
1
@Leonard Levine
What the solution is, I'm not sure -- Pack or not pack. There's risk to both arguments, some probable, other actually existing.
It can be said that justices will be replaced in due time. I agree -- it is risky (present tense deliberate) to fix the current injustice. So is doing nothing & relying on time to fix things. Any remediative measures carry risk, yet so does doing nothing, ignoring the clear & very real precedent that we actually have now where one party to skirts the spirit of the law yet pays no consequences.
As Jimmy Buffett put it, "In a hundred years it all won't matter." *I* for one will not be here in a hundred years. Nor will my son. Any kids he has *might* be; that's a long time to wait for a return to center. Remediation is needed *now*, not pie in the sky in a century.
Any corrective measures carry risk; so does doing nothing with the argument that "in a hundred years it all won't matter."
Tell it like it is. The Republicans have become America’s #1 enemy. They are destroying not only all parts of our government but also our middle class by using propaganda over politics. The Democrats have been in denial about the Republicans plan to destroy the government. Their goal is to transform our democracy into a kleptocracy, theocracy. These are not normal times. The reality is we need a war to save America and the planet. How can we motivate people to come together to save America and the world?
1
Yes, yes, yes, and when the Republicans get their trifecta a term or two later, they’ll expand the Court, rinse and repeat ad infinitum, and before you know it we’ll have one of the most absurd, inefficient and unstable governments on earth. Which, incidentally, is exactly what the like of Putin and China want. The sooner we all realize that these wild responses to Trump are actually part of the plan to weaken and sideline the United States, the better.
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Or: the public will react.
There is no slippery slope. Political acts always have repercussions and reactions. That’s how Obama was elected, in response to Bush’s Christian pugilism. And Trump was elected, in response to Obama’s eloquent blackness.
Hear, hear! Aside from the political consequences of a biased judiciary, the effects on the unlawyered go deep into the inequality of our corrupt system. The best justice that money can buy is not a punchline it is a devastating reality in our two tiered punitive society.
1
Another messaging disaster by the Dems who just can't seem to learn. They don't need to "pack" the courts. They need to "balance the courts".
Now, who could be against balancing something?
Get the messaging right Dems!
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@Techieguy
"Now, who could be against balancing something?" -- Just rhetorical, right? :)
When a man reaches the age of these men, if he's a crook, he's probably done more than one thing wrong. He hasn't just done what you know about first, and otherwise led a blameless life.
It is called opposition research. Dig. There will then be empty seats to fill soon enough.
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Well stated Mr. Bouie. Pack the Court though sounds devious and unconscionable. How about "Right Size the Court". Right sizing will then give the proper representation to "all the people".
Isn't that the way the Constitution is intended to work anyway?
1
If Democrats pack the court they will break the country and forever make the courts an explicitly partisan institution with control of government also meaning control of the levers of justice. And where Bouie sees the filling of judicial vacancies by Trump and Republicans as a matter of controversy and suspicions regarding gross misconduct, Republicans don't. Should Democrats seek to impose a judicial coup on the country Republicans will have no choice but to retaliate lest the country slide into black robed regressive totalitarianism.
There are only four boxes available to patriotic Americans to preserve their country - the soap box, the ballot box, the jury box, and ammo boxes. Free speech is under attack - corporations that control the public square such as Twitter and Facebook ban users who offend their regressive sensibilities. The ballot box controls who gets into government, but concerns about dirty tricks, unlawful voting etc are rife. The jury box pertains more to the right for a jury to refuse to convict, but what of the legal system that doesn't involve juries? If, as Bouie advocates, this is hijacked and packed with activists, what then? That just leaves the ammo box, and a great deal of misery.
Jefferson said "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants" but is that the path Democrats want America to take?
6
Your four boxes argument is ridiculous. It’s a nice rhetorical pose, though, kudos for that.
Case in point: the Civil War. Armed resistance cost half a million lives, ten times as many as Vietnam. In the end, it failed.
No oppressive government has been overthrown by force of arms, worldwide, for over a century. The nation state, on the evidence, is too well organized for that. And for that we may be grateful, because it is to that we owe a worldwide historic decline in violence.
As Jefferson said, the pen is mightier than the sword. Of your four, only the ballot box really matters. Only it reforms governments.
This is the most preposterous scheme. I can't believe progressives are proposing this. Stick a fork in the U.S. if this happens. We'd be well on our way to banana republic status. Where each election results in a new "constitution".
Forget about political stability. I guess what Americans are clamoring for is civil war.
This is like when progressives talk about "revolution" being some kind of democratic safeguard. It very well might be in this instance.
8
He’s not calling for a constitutional convention. He’s talking about the composition of the Supreme Court, a court that is over represented by members who were appointed by presidents who were elected by minority votes. The last time that happened in our history was never.
Republicans controlled both congress and the presidency for two years. Their singular effect, apart from the plutocratic tax cut, had been stacking the judiciary with ideologues. Undoing that damage — through legal, constitutional, legislative action by a democratically elected congress — is the very embodiment of democracy.
Messy, sure. But not the end of civilization.
1
I believe it was President Obama who declared "Elections have consequences.... I won."
And he was right. This piece is revolting. I am always shocked when a bright person begins an argument by stating "By definition...." and goes from there. Their position is only correct based on their premise, which is not always right. In this case, the premise is that Democrats are always right. Guess what- they are not.
As Obama said, get out there and win some elections. Tinkering with the Constitution to achieve your goals will be the downfall of our system.
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@NY Surgeon
Expanding the number of Justices on the Supreme Court does not involve "tinkering with the Constitution." Article 3, Section 1 of the Constitution grants Congress the power to determine the size of the Supreme court.
Changing the Supreme Court is not tinkering with the constitution. It’s using the constitution under powers duly granted congress under Article III, section 1.
No progress until Democrats control The Presidency, Congress and the Supreme Court. What possibly could go wrong? Sounds like Chinese one party rule.
3
Republicans favor productive people, Democrats favor unproductive people. Who do you think wins that contest in the end? Proposals to pack the court, revise the electoral college, increase the size of congress are all Democrat stratagems to shift the advantage to the unproductives. Mr. Bouie says he seeks to "Balance the Scales of Justice"; is it just to give an unearned advantage to people who don't even carry their own weight, who consume more than they produce? Unproductive people should take responsibility for themselves, get to work, prosper; then political power will flow naturally to them, but of course, when they do that they'll no longer be Democrats, they'll be Republicans!
4
In other banana republics, the worry is that the military will intervene to thwart laws, elections and the people's will. In ours, the politicalization of the judicial system, especially the Supreme Court with its two newest right-wing hacks aboard, puts our faith in our system in absolute jeopardy.
1
The problem with self serving "nuclear" options such as court packing is that once exercised you have no recourse when your political opponents retaliate in kind. Ask most Democrats if Harry Reid's nuclear option worked out for them in the long run.
Want to govern? Win elections. Want to start a revolution that might not go your way? Pack the courts.
6
Perhaps an early season trade is in order: BK to NE for AB to the SC.
Jamelle Bouie's proposal of Democrats packing the courts if they can -- isn't this what they will do anyway if they control the trifecta while stymied by the EVIL-RED judges?
The only question is how many new seats. Why not expand the SCOTUS to, say, 499 judges? That would make it more difficult for the RED party to double it if it regains control.
Interestingly, Bouie mentions the preponderance of men appointed judges by Trump, but completely ignores their wealth and income. Shouldn't we discuss how to replace judges possessing above average wealth with the poor?
No branch of government, either at the state or federal levels, is dominated by the poor. Aren't NYT columnists allowed discussion of classism?
Finally, Bouie's argument questions the legitimacy of the federal judiciary, yet he avoids the word illegitimate. If the "judiciary" is illegitimate, doesn't that mean the rest of the government is illegitimate? Why not state this to bolster his argument?
2
Destroying the village to save it....this nonsense started with the Bork hearings and continues because both parties can't control themselves. Just stop.
6
Apparently the author thinks the Dems haven't already been playing 'hardball,' by getting rid of the filibuster and then smearing Kavanaugh with false and uncorroborated accusations. "Pack the court!" cry the progressives, while at the same time complaining about how 'norms' are being violated by conservatives.
8
Mr. Bouie's has, in his columns, consistently failed to fully imagine the consequences of his proposed solutions.
He proposes radical structural changes to our government and totally ignores how a party which he disagrees with might use that power. If Democrats are willing to pack the courts, we must imagine that Republicans will be willing to do so twice as hard as the Democrats will. We must be prepared for an endless expansion of the Supreme Court until it, as a body, is both totally useless in its role and totally illegitimate as a source of moral or legal authority-- but more than that, we must be prepared for the next Trumpian strongman to use that power to cement a dictatorship.
Mr. Bouie would do well to ask, before he publishes his next column, if he would be comfortable with the current President having the powers he wishes the government had. Perhaps, once he asks himself that question, he will realize that the lamp he's holding is really a monkey's paw.
2
Definitely. And gives statehood to DC and Puerto Rico. They deserve it. Plus, four more senators.
1
Why is it that the system needs to be "reformed" whenever Democrats lose elections?
Advocating for packing the courts wreaks of thuggery.
Want your judges to sit on that court?
Then win elections.
7
What goes around comes around. You reap what you sow. Republican arrogance has never been so blatant nor despotic. When democrats seize power they must play pay back on a big scale. I can hardly wait.
1