Pack The Court
Justice Ruth Bader Ginsburg has died. Before the eulogies can start, Mitch McConnell has already announced that he is going to ignore the precedent he set with President Obama’s Supreme Court nominee and confirm a Justice before the election, or at least before the administration changes.
If the Democrats win the White House and the Senate, only one course of action makes sense:
Pack The Court.
Legislate that the Court should have more Justices, confirm them by simple majority, and take back a Court that will have been stolen from the majority party.
The one thing I can’t forgive President Obama for – and this was true way before Justice Ginsburg’s death – is that he didn’t fight harder to get his nominee to the Court vetted by the Senate. But now the damage is done and we have to fix it. The solution he and Sen. McConnell made necessary will be Court Packing.
There will be a hue and cry about this from the Republicans. I don’t care. They don’t have a right to make anyone feel guilty about anything.
There will be a hue and cry from the press. My answer to them is simple:
Go Fuck Yourself. If you wanted to develop a conscience, the time to do so was when Sen. McConnell refused to vet Merrick Garland. You allowed us to get here. This is on you. If you’d done your jobs and raised the appropriate fuss when Sen. McConnell broke precedent that badly, no one would be considering packing the Court now. You want someone to blame? Look in a fucking mirror.
Respect the institution? At what cost? How many millions of Americans will have substantially worse lives as a result of what a 6/3 conservative majority on the Court could do, particularly when that imbalance is the result of the theft of a seat?
If Sen. McConnell has proven anything to us, it’s that we can’t afford to (as the cliche goes) bring a knife to a gun fight. That’s what we did during the Obama administration. We do not do the American public any favors by holding back in the course of protecting their interests.
Packing the Court is a violation of tradition, but so is refusing to vet the Supreme Court nominee of a sitting President. Both are technically legal. The fuss will be asymmetrical. That will be the height of hypocrisy and we should treat it as such.
As to whether it’s wise to tell the Republicans we intend to do that, there are two ways of looking at it:
- The Public will object. It’s up to us to tell them why we’re doing it. And if they object, we should point out the following:
-
If the Republican Party leaves the seat vacant, they will end up with a 5/4 majority because if they act in good faith the Court will not be packed. If McConnell does what he says he’ll do they’ll probably end up with a 9/6 minority. I think there are too many superstitious Americans to allow a thirteen seat court, so it will have to be fifteen.
09/18/2020 @ 11:28 pm
15 is good…
Also, it’s not “technically” legal, or “technically” illegal, but legal…
period…full stop.
This is why I asserted that the margin of the Biden and Democratic win should be sufficient enough to declare a mandate.. .
Too close to call or within the statistical marvin of error simply will not do….
If the Trump-McConnell-Barr cabal succeeds in replacing Ginsberg before January 2021 and a close election goes to a 6-3 Supreme Court we’re fucked…and America as we know it will be no more…
09/18/2020 @ 11:36 pm
BTW
HAPPY NEW YEAR!
09/19/2020 @ 1:13 am
Thank you. To you too.
I think Biden should have a very quiet conversation with McConnell and give him my second point:
Leave the nominee to the next President, the worst you get is 5/4 majority. Don’t, if we win you get a 6/9 minority. Up to you.
09/19/2020 @ 3:45 am
Not a spot for Biden….
Senate Minority Leader Harry Reid and possibly Kamala Harris, who is still a member of the Senate, together should make such a hard-ball pitch if such a high hard brush-back pitch is to be made….
It would be even better if the approach to McConnell was bi-partisan….
Name a Republican who might get on board….
Remember, it was Republicans who told Nixon to resign or else…
09/20/2020 @ 3:57 pm
I am apparently far from alone in talking about packing the Court to the point where Sen. Schumer has said if another nominee is confirmed, “Nothing is off the table.” At this point, packing has been a common enough conversation already that we all know what he means. There has already been an editorial in the Washington Post advocating packing the Court if it comes to that. Didn’t take long.
09/19/2020 @ 9:15 am
So few Republicans with consciences left. I don’t know. But that’s the pitch.
09/19/2020 @ 10:43 am
This will have another consequence. My wife texted me this morning to donate money to the Kentucky Senate race. We’ll all go after Mitch now.
09/19/2020 @ 12:54 pm
I had dinner the other night with a couple of old lady friends. We had all already donated to McGrath.
https://amymcgrath.com/
09/19/2020 @ 1:01 pm
Lisa Murkowski has already said she won’t vote for a replacement before the election. Whether that means she will after the election but before inauguration, I don’t know.
The clip of Lindsay Graham absolutely asserting he wouldn’t vote to confirm during Trump’s last year but his word doesn’t mean much of anything.
09/19/2020 @ 2:32 pm
It only takes four Republican Senators. They have to know the ethics on this are shady as Hell.
09/19/2020 @ 2:43 pm
https://www.washingtonpost.com/outlook/2020/09/19/mcconnell-biden-pack-court/?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most
GMTA
09/19/2020 @ 4:49 pm
LO;}
The Pack is Back!
Now within the simulacrum of 0 so natural libre’ expansionism I graze upon the smiling image of
RB Ginsburg’s DISSENT COLLAR (~page 36 current issue HARPER’s (Don DeLillo New Fiction).
Change is gonna come!
And to borrow from the great Richie Havens:
FREEDOM … FREEDOM … FREEDOM …!
BindleSnitch - McConnell the Apex Predator
09/21/2020 @ 10:05 am
[…] Pack The Court […]
09/21/2020 @ 1:53 pm
Roosevelt had absolute control over both houses of congress when he attempted to pack the court and he failed because of DEMOCRATIC opposition to the plan. It is also possible that the Court could declare such an Act Unconstitutional because of the existing Judiary Act of 1869. The Court could hold that the Judiary Act of 1869 had to be repealed because unless it was repealed we would then have two laws on the books asserting a different number of justices.
This is one of the many problems with our current Constitution. The problem is the concept of lifetime tenure for judges. I have never understood why federal judges were given lifetime tenure when state judges are not. If justices were limited to a single 20 year term, a great many problems would go away….but this would require a constitutional amendment.
09/21/2020 @ 2:09 pm
I have one major regret from childhood. That one regret is that people did not more forcefully try to convince me that American democracy is a bit of a scam. It is more trick than it is treat. Time after time it works out like 3-card Monte, or a shell game. We were taught that the U.S. Constitution was a brilliantly conceived piece of law, written by geniuses. As it turns out, it is as flawed as any other human made thing, and when the flaws are addressed, it is defended as though it were an article of faith rather than law. It is bullshit because it failed to take into account how its traditions governing essential practices would go so quickly out of date as sophistication about freedom and justice advanced. The notion of a Senate appointed by governors who were men of stature to weigh against a body of representatives elected by the people is freaking absurd. The 17th amendment advanced democracy a tad, but there are still sufficient “traditions” in place to warp how a free government should operate. This Constitution is an Edsel.
So much of how this constitution is supposed to work relies on standard practices, and not explicit laws, and when there is a choice to regulate one, or not another, the decision is usually determined by how wealthy and powerful the regulated entity is to begin with. If the laws all must be written, the law becomes too brittle. If it is vague, it is too easily exploited by the powerful. This choice only delayed the loss of faith in government. It did not prevent it by functioning well.
That leaves us with two basic paths. Either we take a tack that re-establishes standard practices, and follow them more faithfully, in order to restore stability, or we can leverage raw power against power, and abandon all pretense about fairness. My personal belief is that “fairness” in the American system of democracy is a suckers game. If it is to exist, it will have to be created now. I believe that it has never really existed. Also, if we choose to leverage power against power with no consideration given to this principle of fairness, we will have a system that can be understood, but it may also hasten its end. Leaving the court at 9 is in the former category. Packing it is the latter. We can live on finding that Santa is not real because it is a belief held by kids. Coming to the realization that American democracy is bunk disturbs me more.
09/21/2020 @ 2:41 pm
Alan,
What Roosevelt faced in opposition is I very much doubt what Biden would. Roosevelt wasn’t faced with an opposition that would stoop to what Senators in other recent periods wouldn’t do like we are now. Newt Gingrich changed the game. He turned the sides into enemies with the Contract On America.
Bitey,
The Constitution was pretty much unprecedented and was written for its time, though it did allow for evolution, both in terms of interpretations and amendments. It would be absolute murder to replace it with something that had anything like universal agreement. I think if we tried to replace it at this point we’d lose freedoms and protections.
The problem we’re running into now is that Constitutional survival depends on a plurality of legislators and a President who actually value it. I don’t like to use Nazi metaphors but German democracy couldn’t survive Hitler becoming Chancellor, even though his doing so was entirely legal. Our guys all take an Oath of Office, and an oath was a big deal at a time when guys would shoot each other to death in matters of “honor.” They didn’t have the cultural foresight to anticipate an utter dearth of honor on the part of people taking the oath. Hell, we didn’t. Even when Trump was elected we didn’t expect anything this flat-out nuts, a literal systematic attack on Truth, none of us saw McConnell coming, not even Jon Stewart, who made fun of him as a turtle without realizing that this guy was anything but funny and encouraged the trivializing of America’s most dangerous man.
So maybe we can agree on preserving the system and maybe we can’t. We’re about to find out. If the Republican Senators value the system enough to reject a new Supreme Court nomination, which wouldn’t have been an issue if McConnell hadn’t refused to vet the Garland nomination, the parties will agree to preserve the nine seat Supreme Court, even with a conservative majority. If they don’t, that part of the system will not be preserved as is.
Not that I view the Supreme Court as sacred. They proved they could be an entirely partisan body in the Bush v. Gore case.
09/21/2020 @ 5:04 pm
We didn’t see it coming, but I bet others did. I suspect that we did not see it coming because we are in the middle of it. There have always been some criticisms of our system that were valid. We tend to ignore them, or deny them with faith in ourselves.
George Orwell essentially predicted the assault on truth and reality in his novel 1984. Plato essentially predicted the decay of democracy with his theories. He described the state as either timocracy, democracy, oligarchy, or tyranny. According to Plato, democracy and oligarchy pit the wealthy against the poor, and are thus unstable. Timocracy, (which no one will ever see) is a type of government based upon honorable military service. Military science is easy enough to develop, but honor seems to be lacking in our society. Tyranny has instability which is intuitive.
I think we may have known for thousands of years that the democratic experiment might end this way. Plato seemed to.
09/21/2020 @ 5:18 pm
I’m not at all sure it’s about to end. In fact I doubt it. Too many people still want it. The one institution Trump has on his side is the police. What he doesn’t have on his side is the military. They value democracy. I’ve said for close to four years that I’d wished we’d had a military coup because I trusted them more with democracy in the long run than I trust Trump. Not a typical international model but one that would have had a good chance of working here. I don’t think Trump snuffs it so easily. I don’t think the country stays law abiding if he does.
As to pitting the wealthy against the poor, that was happening from Reagan until now. But now so much of the country could be poor because of COVID that Biden has no choice but to help those at the bottom seriously, which I don’t think would have happened if he’d been elected in 2016. I think the wealthy will have to back off for the time being, at least somewhat, because COVID means business in general is going to Hell and they want a recovery.
Sure, people predicted a Trump. But getting to Trump is one thing, getting through Trump is another, particularly when he’s blown something that’s killed 200.000 Americans and our economy.
09/21/2020 @ 6:53 pm
I am not sure it is about to end either. And by the same token, I am not certain that it will ever begin. I know that during my lifetime it was still legal to discriminate against my people in a variety of ways. And while I am not still technically young, I am not all that old, and my guarantees regarding voting, and a number of other things, assumed by some may be taken away from my people again. So, as to whether it will end, I wish I could say that it actually started.
I have had some discussions recently with people about “Black Lives Matter.” Some take offense to the name, as though it represented a threat to them. It doesn’t. The notion that it does is a racist fantasy that has a significant representation in this culture. If this democracy had begun, there would not even be a need for this organization, much less the campaign that others need not be threatened. I think American democracy is a bit of a privileged illusion. I can’t safely assume its existence.
09/21/2020 @ 9:39 pm
My grandfather worked for a defense contractor during WWII in Manhattan. They didn’t hire Jews so he had to pass. Judaism wasn’t at all significant in his life but there was the issue of identity. I don’t think that will ever be legal again. As to taking the vote from Black people, I don’t think they’ll be able to do that. For one thing, back when they did that there wasn’t a lot of voluntary race mixing; now it’s very normal. For another, the younger you are if you aren’t Black, the less race matters to you. The young are more egalitarian, which is true racially and true when it comes to gender and preference. Bigotry can rise, and the remediation of inequality can be defanged, but no one could get away with “if you’re Black you can’t vote.” Too many Republicans would be ashamed of that. There are a whole lot of people out there who are racist but who don’t want to admit to themselves that they’re racist. Taking your vote means they have to admit it to themselves.
And keep in mind how the country mobilized over George Floyd. A whole lot of White America went nuts. These are not people who think it would be right to take your vote.
Of course BLM doesn’t represent a threat to them. The threat they think it represents to them is that Black people will be entitled to something that they aren’t. Their question is “Why only Black lives?” That answer should be screamingly obvious, but these are not people who buy that answer. The other question I hear is Why do Black lives only matter if cops are taking them? Why don’t they matter if other Black people are taking them?
There are of course two answers to that question. The first is that if someone Black kills someone else Black, no prosecutor is trying to protect the suspect from being charged, nor is a union standing up for them. The big problem with police killings of unarmed Black men is not that they do it but that they get away with it. If they were all prosecuted there would be no issue at all; it would just be another crime. The second reason is that the Black on Black killings that this group of White people believe is tolerated by the Black population is that those killings come directly out of conditions Whites created for the Black population. Gang violence happens in poor urban neighborhoods. Gangs are necessary in part because of group safety and in part because they are now largely commercial entities in areas where legal livings are scarce. Why are those legal livings scarce?
I’m not saying there are no obstacles left, nor am I saying that ending racism is inevitable. In the long run I think reducing it is. Racism will continue to exist and, as we’ve noticed, it has gotten and will remain sneaky, deniable even when obvious, and that’s where the danger of growth is. You know, Nagger. Tar baby. Patois. All from people who thought they were egalitarians. Policies that deny differences in circumstances by claiming that acknowledging them is racist by virtue of not being colorblind while authorities not being colorblind just comes with the territory. But I don’t think it’s headed for blatant because too many racists don’t want to admit they’re racists.
09/21/2020 @ 10:19 pm
“Black Lives Matter” came to our attention because of clashes with police, but I don’t think it has specifically to do with Black people being shot by police. It makes me want to vomit to have to say that over and over. (I get the same question.)
Black people are diagnosed with deadly conditions more slowly and get worse treatment in hospitals. To us…our lives matter. To doctors and nurses, they seem not to. Black children are suspended and punished with greater severity than other children. That sort of thing impacts the lives of the children, and then later in their adult lives. Those lives matter to us, but they don’t seem to to teachers and principles. “Black Lives Matter” is a scream that says….HEY, Black lives matter! It is not restricted to contact with police officers. It is about the full circles of our lives. We get short shrift in every conceivable way.
As for taking my voter away, I am not worried about that as much as I am worried that there government declares me illegal, and decides to load me onto a train to a concentration camp. In high school, I had a class called “Oppression” taught by a Holocaust survivor who lost his entire family in the death camps. His warning to us used to be, “don’t get on that train.” There is a long story leading up to it, but basically it goes, they will appeal to your citizenship and decency, and talk you into volunteering yourself onto “the train.” “Whatever you do, don’t get on that train.”
Now, I am not of the belief that as the situation arises, it will be able to see. I think one day it is not legal, nor thinkable, and the next day it is a plan in place. In the 1970’s that almost seemed like dystopian future fiction. Now it seems like a sensible warning. “BLM” isn’t about getting shot by cops at a disproportional rate. It is about being vulnerable to being put on “the train”. Recently there is news of hysterectomies being performed on young women in detention at the border. This was without their knowledge, of course. I think it was Department of Homeland Security doing this. The detention facility and the medical facility were privately owned.
No, I don’t think this will happen. I don’t even think it is more likely that not. But, less than likely is not a comforting level of security. I think my citizenship merits more than that. My life matters. My life is like any other Black life in America. Black Lives Matter. That is not a threat to anyone.
Let’s see…”racism.” Determining whether someone is or is not a racist is the biggest loophole of all time. I tend not to discuss whether someone is or is not a racist, except to change the focus on conduct rather than the condition of one’s heart, or the thoughts in their mind. Racism is entirely legal, and the right of the person feeling it. It is what is DONE in the public square, or with public resources that matters. If someone gets you into a discussion about whether or not they are a racist, that conversation can go in a circle until the end of time. They run out the clock on accountability. Let them be racists. Make them account for what they do. As long as we focus on whether or not some IS a racist or not, nothing will ever get done.
09/21/2020 @ 10:55 pm
True about self-identity vs. behavior, but they’re more concerned about being racist than doing racist and we have to correct that. The train isn’t a bad metaphor. Be careful what you allow. I think BLM to most White people really is about the police shootings. Most of them (us?) still don’t get the daily difference. They see so little and they’re curious about so little because they’d rather not see it. Denial is easier and, they think, cheaper. But really it isn’t.
The fact that it isn’t is the biggest secret. No one sees that. It’s the strangest blindness I know because it’s just about total. It doesn’t matter who I talk to. It doesn’t matter where on the spectrum they are. It doesn’t matter what field they’re in, though there’s a French economist who started to catch on telling people that the absence of poor people in the customer base has real economic consequences. I forget his name. No one gets that attacking racism makes enormous fiscal sense. No one understands that reparations would be fantastic for American businesses. I’m not an economist so I really don’t get how I see it but no one I hear from or read does. That’s why when I talk about optimism I’m so sure I’m alone because when you talk about fixing stuff all anyone sees is costs. And sometimes that blindness gets insane.
The biggest example of this I can think of is an old phenomenon called Midnight Basketball, the idea that they were opening up rec centers at the wee hours of the morning, figuring it was better to keep poor kids playing basketball when they’d normally be getting into legal trouble at that hour on the streets. I can remember right wingers thinking it was a boondoggle, like some sort of charity. My God, how the Hell could they be so stupid? These cost something like $70k/year/site to run. Does anyone realize how few crimes a site has to present to break even? Per YEAR? Does anyone understand what crime costs? You start with the material costs, property damage, insurance, medical costs, time off work, God forbid deaths involved, funerals, loss of support, whatever. Grand jurors and jurors missing work. Police costs – investigation, arrests. Temporary incarceration – jail. Court costs, understanding that judges and lawyers are ridiculously expensive. Long-term incarceration – prison, encompassing security, prison maintenance, room/board, medical, food, recreation, training, because all this stuff is necessary to limit repeat offenses which would initiate all these expenses again. Probation and parole costs. Opportunity costs from these young men not earning or spending. I don’t know what a single crime costs on average, but I know you’d go through $70k real fast. Real fast. I don’t know what a crime costs in total. My guess is that depending where the gym is you could break even in weeks.
Why was no one asking that question? Why were people so concerned that these young men would get a free benefit, like that’s the worst thing in the world that could happen? Actually, in that mindset, that’s exactly true: it IS the worst thing in the world that could happen. These young men are getting something for nothing and I’m paying for it. One has to ignore so much to reach that conclusion, but right wing Whites are really, really good at that kind of ignoring. But the Left has no excuse. If you opposed that program, the problem wasn’t that you were heartless, it was that you were a blithering idiot, because the program gave you something of value for way less than it was worth.
09/22/2020 @ 6:51 am
“I think BLM to most White people really is about the police shootings. Most of them (us?) still don’t get the daily difference…”
One thing is for sure. White people don’t listen. “BLM” is not about policing. Policing is just how it has come to everyone’s attention. The statement has broader meaning. They don’t get the daily difference because when someone tells them what it means, they reinforce their previous misunderstanding. It does not need to be translated. It is not limited to…
One of the reasons I keep trying to tear you away from the law enforcement interpretation o that term is that a gritty mental image of someone being arrested by a police officer on a street, in the blinding light of a spot light, has certain negative connotations. Stop limiting Black people to some narrow aspect where “driving while Black” only means driving a car that their presumed pack of wealth makes them conspicuous. These concepts are not that narrow. Black people are not narrowly human. Black people are people in full. Our lives are not only significant as they apply to interactions with police. Imagine a Black person as a person…just like you, with all the diversity of qualities and potential. It’s like that.
“I think BLM to most White people really is about the police shootings. Most of them (us?) still don’t get the daily difference…”
They’re WRONG. They always have been. Let’s stop reinforcing what they DON’T get.
09/22/2020 @ 11:02 am
My observation is specifically about what BLM, as a movement and to a certain extent as an organization, is interpreted to mean, not what racism really looks like in general. In other words, it’s about how much racism or what varieties of racism BLM is considered to cover. It would make sense to cover a greater scope than police interactions because Black lives are treated like they don’t matter much more generally than with police interactions. Like for examples with COVID mortality.
10/09/2020 @ 10:26 am
The Constitution can be looked at sort of like the Magna Carta. The Magna Carta is viewed as a seminal document for human rights. That’s not what it was at all – it was a step backward toward feudalism. It stopped the king from prosecuting landed nobles whenever he felt like it. Jury of Peers meant peers of the realm. It evolved to mean something very different.