Almost nobody doubts the importance of the judiciary in American political life.
That’s why the Democratic Party is full of court-packing schemes.
The 2020 Democratic field is full of people who believe that, since Supreme Court appointments haven’t gone their way, it’s time to put more people on the court.
Take this sample plan from South Bend, Indiana mayor and expensive-sock aficionado Pete Buttigieg, who wants 15 justices on the high court: Five would be picked by Republicans, five would be from the Democrats and five would be picked by the other 10 from lower-level courts.
Never mind that the plan would mean the court’s decisions on the most contentious cases would ostensibly hinge on the makeup of the five “apolitical” justices chosen by the the political ones.
This would be flooding the court with six new justices — the first change in the number of seats on the Supreme Court since 1869 — because Republican presidents have appointed five of the nine justices on the current court.
After a relatively poor showing in the first round of debates, Vermont Sen. Bernie Sanders needs to generate some sort of excitement to slingshot him back into the second-place perch in the polls that he’s enjoyed since this whole election cycle began back in, what, 1989?
(The most recent polls often have him in third or fourth, depending on how well Massachusetts Sen. Elizabeth Warren does; California Sen. Kamala Harris has moved ahead of the Vermont socialist in the RealClearPolitics polling average. Former Vice President Joe Biden is still in first.)
However, one thing people didn’t necessarily notice while Bernie was flailing around during the debates was his scheme to rectify the “terrible” conservative majority.
Now, it’s getting a bit more play because it was one of the only things Sanders said during the debate that looked reasonably good to the liberal base.
No, he doesn’t want to court-pack. That would be wrong. Instead, he wants to “rotate” justices on and off the court like this was a European soccer league.
“I do not believe in packing the court,” Sanders said during the debate.
“We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”
Sanders insisted “that constitutionally we have the power to rotate judges to other courts.”
Sanders added that he would “never nominate any Supreme Court justice to the Supreme Court unless that justice is 100 percent clear he or she will defend Roe v. Wade.”
The Vermont senator has said similar things in the past.
“My worry is that the next time the Republicans are in power they will do the same thing, I think that is not the ultimate solution,” Sanders said back in April, according to Reuters.
Sanders actually makes a pretty cogent argument here.
If only he could apply it to his current judge-rotating plan, where (I assume) the executive would relegate justices whose decisions he didn’t like and promote those who were more in line with what he believes.
Sanders is pretty short on specifics, but I’m pretty sure whatever Congress is authorized to do doesn’t include making it so “the next time the Republicans are in power” — assuming the Democrats control both the executive and legislative branches come January 2021, which one can’t exactly take for granted even if Sanders moves into 1600 Pennsylvania — they aren’t able to rotate conservative judges in.
Furthermore, all of the schemes that aren’t just straight-up court-packing (this mean’s both Bernie’s judge-rotating plan and Buttigieg’s strange partisan selection system) are likely going to run afoul of the Constitution.
“First, a Justice could not likely be ‘rotated out’ of the Supreme Court without a formal impeachment proceeding or voluntary withdrawal. Either would be necessary to make room for a new Justice, unless the number of Justices, currently capped at nine per the Judiciary Act of 1869, is also up for consideration,” Maria L. Hodge wrote at Jurist.
“Impeachment of a Supreme Court Justice requires a majority vote of the House and two-thirds majority of the Senate via Art. II §4 of the Constitution. This is unlikely to occur absent egregious behavior.”
“Second, a new Justice ‘rotated in’ would need to be properly nominated and appointed. Under the Appointment and Removal Power designated in Article II, §2 of the Constitution, the executive branch has the sole responsibility for nominating Judges to the Supreme Court. While Congress can certainly remove a Justice via the impeachment process without Presidential approval, it has no designated power to unilaterally place Judges on the Supreme Court without first receiving this nomination from the President. Any attempt by Congress to wield this sort of authority would constitute a separation of powers violation. Congress must instead rely on traditional nomination and hearing processes for an appointment of a Supreme Court Justice to be considered constitutionally valid.”
So, no, this probably isn’t remotely constitutional.
But, just like most of the other court-packing schemes, it’s certainly red meat for the base — and it sounds a lot better because it’s not really court-packing, just court-pruning.
Or maybe court maintenance?
While it may not happen, what Sanders is saying — and the fact that it’s being touted so heavily — ought to scare the daylights out of everyone.
If you want to be pessimistic enough here about what Sanders’ proposal would entail, rotating justices would ostensibly turn the highest court in the nation into a tool of the executive branch.
This isn’t just the antithesis of what the framers intended.
It’s the kind of thing that you see in banana republics where whatever organs of government aside from the executive functions exist at the mercy of some tinpot autocrat.
The great irony here, of course, is that the Democrats keep blathering on about President Donald Trump eroding democratic norms or some such nonsense.
Meanwhile, simply because of the fact that the president has been able to appoint two Supreme Court justices, we have one of the top Democratic candidates for president proposing that we transform the nation’s top court into a tool of the presidency — provided, of course, that he’s the president.
The mere fact Sanders is willing to propose this ought to disqualify him from serious consideration.
Instead, I fear, it’ll only raise his profile among those Democrats who believe control of the Supreme Court ought to be their right.
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