The Best Defense Is a Good Offense

 

Democrats have been talking about the need for the next Democrat President to expand the size of the Supreme Court in order to counteract the baleful effects of the Trump appointments.

A Proposal: Trump should himself submit a plan to Congress to expand the size of the Supreme Court.  Let’s get the Democrats in Congress on the record as to why expanding the court is a bad idea.

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There are 23 comments.

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  1. Franco Member
    Franco
    @Franco

    Since when does it matter what Democrats have claimed to be for or against in the past?

    • #1
  2. Gumby Mark (R-Meth Lab of Demo… Coolidge
    Gumby Mark (R-Meth Lab of Demo…
    @GumbyMark

    I like the way you think.

    • #2
  3. Kevin Schulte Member
    Kevin Schulte
    @KevinSchulte

    This only works with moral/ethical people. Democrat party, fresh out !

    • #3
  4. Henry Racette Member
    Henry Racette
    @HenryRacette

    The downside, of course, is that it puts Republicans on record as trying to pack the Supreme Court. It would fail, of course. But later, when the Democrats try to do it, the press will point out that it’s hardly an outrageous idea since, after all, the Republicans tried to do it themselves.

    I like the idea of forcing tactically embarrassing votes on things, as Sen. McConnell is threatening to do on the Green Poverty Deal. That’s smart. But I don’t like the idea of owning court packing.

    • #4
  5. danok1 Member
    danok1
    @danok1

    I find your ideas intriguing and would like to subscribe to your newsletter.

    • #5
  6. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    I’m for court packing.  The federal judiciary is already politicized, so packing the Supreme Court will take the veneer off.

    I’d also like to see more statutory limits on the court, since Congress has substantial power to impose limits on the judiciary. 

    • #6
  7. Flicker Coolidge
    Flicker
    @Flicker

    Henry Racette (View Comment):
    I like the idea of forcing tactically embarrassing votes on things, as Sen. McConnell is threatening to do on the Green Poverty Deal. That’s smart. But I don’t like the idea of owning court packing.

    I thought it was called the OrGREENic Poverty Challenge.

    I like your Poverty insertion.

    • #7
  8. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Henry Racette (View Comment):

    The downside, of course, is that it puts Republicans on record as trying to pack the Supreme Court. It would fail, of course. But later, when the Democrats try to do it, the press will point out that it’s hardly an outrageous idea since, after all, the Republicans tried to do it themselves.

    That’s easy to deal with.

    Trump proposes, the Senate votes on it, and every Republican votes “no”.

    Then packing the court is inextricably linked with “Trump”.

     

    • #8
  9. Flicker Coolidge
    Flicker
    @Flicker

    Miffed White Male (View Comment):

    Henry Racette (View Comment):

    The downside, of course, is that it puts Republicans on record as trying to pack the Supreme Court. It would fail, of course. But later, when the Democrats try to do it, the press will point out that it’s hardly an outrageous idea since, after all, the Republicans tried to do it themselves.

    That’s easy to deal with.

    Trump proposes, the Senate votes on it, and every Republican votes “no”.

    Then packing the court is inextricably linked with “Trump”.

    The other side is that Republicans can say “And you said it was wrong then, and we didn’t do it.”  But the fact is that history, honesty and truth mean nothing to the Democrats (and I mean that pretty much literally — the narrative must be compelling but not necessarily true — from Dan Rather, to even AOC who says the morality matters more than the truth) and all will be forgotten or ignored.

    • #9
  10. Flicker Coolidge
    Flicker
    @Flicker

    I have some real concerns about court packing.  It’s the conservative side of me and doesn’t deal with the law, or the party maneuvering, but more like the sudden evolution of John Roberts: we can never tell what’s going to happen.  Who’d have guessed he’s not be so much a conservative as, in his mind, the lone star with the swing vote?

    My objection has to do with not knowing the psychology of it.  And I don’t particularly like psychology or game theory, but if you increase the court to, say, 31 members, you no longer have nine egomaniac jurists each with a secure legacy and rare claim to history and a certain accompanying complacency, but a room full of arguing, wheeling and dealing second tier egotists, each trying to leave a distinct legacy.

    Would this be good or bad for the process and for the country?  How would it affect the cases they review and how they barter their votes?  How much independence would it give them, and how much herd instinct?

     

    • #10
  11. Henry Racette Member
    Henry Racette
    @HenryRacette

    Miffed White Male (View Comment):

    Henry Racette (View Comment):

    The downside, of course, is that it puts Republicans on record as trying to pack the Supreme Court. It would fail, of course. But later, when the Democrats try to do it, the press will point out that it’s hardly an outrageous idea since, after all, the Republicans tried to do it themselves.

    That’s easy to deal with.

    Trump proposes, the Senate votes on it, and every Republican votes “no”.

    Then packing the court is inextricably linked with “Trump”.

    Linked by whom? By the voters, who assiduously follow Congressional votes? Or by the media, who will spin it in the way most beneficial to the left?

    There are what I call first-order and second-order consequences. The first-order consequences are the direct results of an action; the second-order are the indirect consequences. In general, you can put more money on first-order consequences, as they’re more likely to happen and less susceptible to intervention and miscalculation.

    The first-order consequence of proposing court packing is that Republicans will be on record as proposing court packing. Hoping that we’ll someday be able to leverage the Democrats’ opposition to it to prevent the Democrats from doing their own court packing is a gamble; Republicans being on record as having tried it first is a sure thing.

    And the MSN will make sure that everyone knows it was a Republican idea.

    • #11
  12. Stad Coolidge
    Stad
    @Stad

    Franco (View Comment):

    Since when does it matter what Democrats have claimed to be for or against in the past?

    Same as I was thinking.  Dems are on record as having supported a border wall in the past, but it doesn’t impact them today.  Still, I like the idea of making the Dems go on record anyway.

    • #12
  13. Flicker Coolidge
    Flicker
    @Flicker

    Would you rather argue a case on its merits before 1 judge, 12 jurors, 9 justices or 31 justices.

    If it were 12 jurors I might be comfortable, and after that probably a single judge, but that’s not the question.

    Among justices, all other things being equal, I would probably rather argue before 9 judges, with 9 points of view and worlds of experience.

    If I were to know I would argue twenty or fifty cases before them I would probably want a room full of people to sway, so the 31 justices. There would probably be more consistency over time with 31.

    But all things are rarely equal. And the psychology is that, just like voting for Trump in an all blue state, you know your vote has less meaning. Or with a hundred Senators, or 400 representatives. There’s a whole lot more game-playing. And so it would be with the justices. I think there would be more slop. Less accountability, to one another, and in the press, and toward each justice’s conception of his own legacy.

    And this is all assuming there would an argument over the merits and that’s often not true, such as Roberts’ 0bamacare decision. Would 0bamacare have been struck down if 31 justices were on the bench and Roberts wasn’t the sole swing vote?

    • #13
  14. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    Flicker (View Comment):
    My objection has to do with not knowing the psychology of it. And I don’t particularly like psychology or game theory, but if you increase the court to, say, 31 members, you no longer have nine egomaniac jurists each with a secure legacy and rare claim to history and a certain accompanying complacency, but a room full of arguing, wheeling and dealing second tier egotists, each trying to leave a distinct legacy.

    On the plus side, since a seat on the Supreme Court would be devalued, maybe those egomaniacs wouldn’t stay as long since their vote, along with precedent setting written opinions, wouldn’t have as much influence.

    And regardless, statistically you would see more vacancies, and probably less Borking when a nomination comes up.  The stakes wouldn’t be as high.

    • #14
  15. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    Flicker (View Comment):
    but if you increase the court to, say, 31 members,

    And you’d have to enlarge the building for the cases on which they sat en banc.

    • #15
  16. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    Randy Webster (View Comment):

    Flicker (View Comment):
    but if you increase the court to, say, 31 members,

    And you’d have to enlarge the building for the cases on which they sat en banc.

    The Supreme Court always hears cases en banc, unlike the Courts of Appeals.  That’s present practice, but it wasn’t always so.  Individual Supreme Court justices, at one time, rode a circuit to hear appeals.

    I suspect that the procedure for both the Appeals circuit and the Supreme Court is laid out in statute which could change.

    The real reason you would have to enlarge the building would be office space, not the courtroom where they sit.

    • #16
  17. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    Al Sparks (View Comment):

    Randy Webster (View Comment):

    Flicker (View Comment):
    but if you increase the court to, say, 31 members,

    And you’d have to enlarge the building for the cases on which they sat en banc.

    The Supreme Court always hears cases en banc, unlike the Courts of Appeals. That’s present practice, but it wasn’t always so. Individual Supreme Court justices, at one time, rode a circuit to hear appeals.

    I suspect that the procedure for both the Appeals circuit and the Supreme Court is laid out in statute which could change.

    The real reason you would have to enlarge the building would be office space, not the courtroom where they sit.

    They might not if there were 31 of them.

    • #17
  18. Flicker Coolidge
    Flicker
    @Flicker

    Al Sparks (View Comment):

    Randy Webster (View Comment):

    Flicker (View Comment):
    but if you increase the court to, say, 31 members,

    And you’d have to enlarge the building for the cases on which they sat en banc.

    The Supreme Court always hears cases en banc, unlike the Courts of Appeals. That’s present practice, but it wasn’t always so. Individual Supreme Court justices, at one time, rode a circuit to hear appeals.

    I suspect that the procedure for both the Appeals circuit and the Supreme Court is laid out in statute which could change.

    The real reason you would have to enlarge the building would be office space, not the courtroom where they sit.

    People are still people.  How do you make eye contact with 31 justices?  My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    • #18
  19. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    Flicker (View Comment):
    People are still people. How do you make eye contact with 31 justices? My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    Even with the present court, oral arguments seem to be of little value.  For one thing, the lawyers have already submitted more extensive written arguments.  My impression is that oral arguments are a conceit, with the justices allowed to grandstand by interrupting the lawyers presentation asking often harassing questions.

    Given that, is eye contact even an issue?

    Someone compared this to arguing in front of jurors, but jurors aren’t presented written arguments in advance.  Lawyers arguing in front of jurors are actually trying to persuade with their oral arguments alone, and the jurors aren’t allowed to interrupt.

    • #19
  20. Flicker Coolidge
    Flicker
    @Flicker

    Al Sparks (View Comment):

    Flicker (View Comment):
    People are still people. How do you make eye contact with 31 justices? My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    Even with the present court, oral arguments seem to be of little value. For one thing, the lawyers have already submitted more extensive written arguments. My impression is that oral arguments are a conceit, with the justices allowed to grandstand by interrupting the lawyers presentation asking often harassing questions.

    Given that, is eye contact even an issue?

    Someone compared this to arguing in front of jurors, but jurors aren’t presented written arguments in advance. Lawyers arguing in front of jurors are actually trying to persuade with their oral arguments alone, and the jurors aren’t allowed to interrupt.

    I had no idea.  So that’s why they say that this justice or that justice is going to vote one way or another by the questions he/she asks?  So orals arguments are made after the decision is made?  Wow.  Talk about conceit.

    • #20
  21. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    Flicker (View Comment):

    Al Sparks (View Comment):

    Flicker (View Comment):
    People are still people. How do you make eye contact with 31 justices? My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    Even with the present court, oral arguments seem to be of little value. For one thing, the lawyers have already submitted more extensive written arguments. My impression is that oral arguments are a conceit, with the justices allowed to grandstand by interrupting the lawyers presentation asking often harassing questions.

    Given that, is eye contact even an issue?

    Someone compared this to arguing in front of jurors, but jurors aren’t presented written arguments in advance. Lawyers arguing in front of jurors are actually trying to persuade with their oral arguments alone, and the jurors aren’t allowed to interrupt.

    I had no idea. So that’s why they say that this justice or that justice is going to vote one way or another by the questions he/she asks? So orals arguments are made after the decision is made? Wow. Talk about conceit.

    In any controversial case, everyone knows how all the justices but Roberts are going to vote.

    • #21
  22. Flicker Coolidge
    Flicker
    @Flicker

    Randy Webster (View Comment):

    Flicker (View Comment):

    Al Sparks (View Comment):

    Flicker (View Comment):
    People are still people. How do you make eye contact with 31 justices? My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    Even with the present court, oral arguments seem to be of little value. For one thing, the lawyers have already submitted more extensive written arguments. My impression is that oral arguments are a conceit, with the justices allowed to grandstand by interrupting the lawyers presentation asking often harassing questions.

    Given that, is eye contact even an issue?

    Someone compared this to arguing in front of jurors, but jurors aren’t presented written arguments in advance. Lawyers arguing in front of jurors are actually trying to persuade with their oral arguments alone, and the jurors aren’t allowed to interrupt.

    I had no idea. So that’s why they say that this justice or that justice is going to vote one way or another by the questions he/she asks? So orals arguments are made after the decision is made? Wow. Talk about conceit.

    In any controversial case, everyone knows how all the justices but Roberts is going to vote.

    Do you have any thought on how a much larger bench will change things?  If at all?

    • #22
  23. Randy Webster Inactive
    Randy Webster
    @RandyWebster

    Flicker (View Comment):

    Randy Webster (View Comment):

    Flicker (View Comment):

    Al Sparks (View Comment):

    Flicker (View Comment):
    People are still people. How do you make eye contact with 31 justices? My 31 number here was thrown in by another commenter on another post but seems a good starting point for examining the effect of enlarging the court.

    Even with the present court, oral arguments seem to be of little value. For one thing, the lawyers have already submitted more extensive written arguments. My impression is that oral arguments are a conceit, with the justices allowed to grandstand by interrupting the lawyers presentation asking often harassing questions.

    Given that, is eye contact even an issue?

    Someone compared this to arguing in front of jurors, but jurors aren’t presented written arguments in advance. Lawyers arguing in front of jurors are actually trying to persuade with their oral arguments alone, and the jurors aren’t allowed to interrupt.

    I had no idea. So that’s why they say that this justice or that justice is going to vote one way or another by the questions he/she asks? So orals arguments are made after the decision is made? Wow. Talk about conceit.

    In any controversial case, everyone knows how all the justices but Roberts is going to vote.

    Do you have any thought on how a much larger bench will change things? If at all?

    I just think it would be more fluid.  You wouldn’t have four liberals and four conservatives and one swing vote.  It says something (not good) about American jurisprudence when the most important reason to vote for a president is what kind of justices he’ll appoint.

    • #23
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