Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme

Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House.  I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats.  Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate.  Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

Here is the column:

“Nothing is off the table next year.” Those seven words of Senate Minority Leader Chuck Schumer capture the “total war” declarations of the Democrats when asked about any nomination to replace Supreme Court Justice Ruth Bader Ginsburg before the election.

There is a type of liberation that comes from what military theorist Carl von Clausewitz called “absoluter Krieg”: “War is nothing more than the continuation of politics by other means. … For political aims are the end and war is the means.” The means raised with Schumer is a demand for the Democrats to pack the nation’s highest court with added members once they take control of the Senate.

House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”

Yes, it is as simple as it is senseless. It is a curious way to honor Justice Ginsburg by destroying the institution she loved. Packing the court is all about power, not principle.

Remember Franklin Roosevelt

As members and commentators have lined up to pack the court once Democrats take control of the White House and the Senate, I have been called about a plan that I first proposed over two decades ago to expand the court. This, however, is not my plan. It would expand the court for the wrong reason and in the wrong way. In that sense, it is more similar to the court-packing plan of President Franklin Roosevelt.

In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small. Moreover, unlike the considerable thought put into all of our other major institutions, the size of the Supreme Court was arrived at by virtual accident. The Constitution does not set the size of the court.

The first Supreme Court had just six justices, and when it convened in 1790 at the Royal Exchange Building in New York, only four justices bothered to show up.

Over history, the size of the court has fluctuated. Justices once “rode circuit” and sat as judges in lower courts, so when Congress added a circuit, it would add a justice. When a 10th Circuit was added in 1863, a 10th justice was added. In 1869, however, Congress set the court at nine members.

That’s it. No deliberative debate. No historical or political analysis. More thought went into the size of the Consumer Financial Protection Bureau than the size of the U.S. Supreme Court.

Notably, most of the other countries with substantially larger courts have them to avoid the persistent problem of our nation’s highest court in becoming practically a court of one with a swing justice. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.

However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.

This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.

Democrats just want muscle

Democrats want to simply engineer a majority in a raw muscle play after taking over the Senate and the White House. It is as raw and transparent as the FDR court-packing scheme. Faced with a conservative majority ruling against his New Deal legislation, Roosevelt called for up to six additional justices, one for every justice older than 70. That was basically the profile of the “four horsemen” blocking his measures.

Like the latest calls, the FDR plan was based on politics rather than principle. When the politics changed, the plan died. FDR dropped his plan as soon as he got what he wanted with a favorable majority. That is why the switch of Justice Owen Roberts in favor of a New Deal case became known as a “switch in time that saved nine.”

The expansion of the court should not be simply because Democrats do not like the fact that President Donald Trump got three nominations. This was always the risk for a number of aging justices. In 2017, I wrote that Ginsburg (who was the oldest member of the court and long battled cancer) was taking a huge gamble with her legacy by not allowing President Barack Obama to appoint her successor.

Before Ginsburg died, nine nominations had occurred in election years since 1900, and Ginsburg herself said in 2016 that the Senate had to do its “job” and vote on such nominations because “there’s nothing in the Constitution that says the president stops being president in his last year.” Moreover, Ginsburg also opposed expanding the Court, but she is not being cited by liberals as the reason to doing precisely what she opposed as inimical to the functioning of the Court.

That does not mean that the Democrats are wrong in calling out the hypocrisy of Republicans who opposed any vote in 2016 (or conversely Republicans quoting Democrats who insisted that election year nominations are entirely appropriate in 2016). Senators can vote against the nominee on any ground, including the timing. However, nomination is still a constitutional prerogative being exercised for the 10th time in an election since 1900. It is no excuse to call for the packing of a court and destroying decades of tradition. It is the political equivalent of the Vietnam War goal of destroying a village to save it. This court will not be saved by packing it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

219 thoughts on “Destroying The Court To Save It: Democrats Wrongly Use Ginsburg To Push Court Packing Scheme”

  1. “This call began a few years ago. Commentators like Pema Levy declared that the Republicans were succeeding in shaping the court, and that it has led “some Democrats to believe that it’s time to throw out the rule book and fight back.” That “rule book” was previously called the Constitution.”

    That’s an odd remark given what the rest of that section of the blog entry says. What the Dems are contemplating is constitutional.

    The rule book was never part of the Constitution, but was a group of nonpartisan ideals. It has increasingly been tossed aside by both parties in favor of raw power politics, with no prospect of that changing by relying on the mere good faith of the parties. Hyperpartisanship has been on the rise for decades and will continue to increase, by all appearances. (I blame hyperpartisan news outlets like Fox and MSNBC primarily, by the way.)

    In that context, taking power where it can be had may be the only prudent course. What, after all, would stop today’s GOP from packing the Court if they had the votes? The same scruples they showed in regard to the brazen Garland/Barrett reversal?

    What’s really needed is a constitutional amendment, a new rule book that doesn’t rely on mere ideals, expanding the Court slowly to a more practical size. It might be possible to sell both sides on such a thing in conjunction with two justices being added in the first Biden term. That would make up for the Garland/Gorsuch swing, which is really all most Dems would require I think. The prospect of uncontrolled additions might be a less attractive alternative to the GOP than the amendment.

    Not that what happened to Garland was unconstitutional or wrong in itself, but the reversal signaled clearly the increasing departure from the norms that once applied. Without such norms, and with no constitutional constraints, it’s all about raw power on all sides.

    1. “Hyperpartisanship has been on the rise for decades and will continue to increase, by all appearances. (I blame hyperpartisan news outlets like Fox and MSNBC primarily, by the way.)”

      If one is actually interested in such history then one recognizes that Fox is a result of a TV media that was hyper-partisan. That left the door open for a new entry that became Fox.

      Today, almost the entire press and social media giants FB and Twitter are controlling the news preventing the release of unfavorable information on Hunter’s laptop and permitting Joe Biden to remain in the basement. Today’s present media isn’t much different from the media seen in Russia and China. Our children and grandchildren will have to face a more repressive government for the mistakes being made while we speak.

      1. I think you’re half right. Fox is indeed a reaction to liberal bias in the media, but the mainstream media (in which I no longer count CNN) wasn’t and still isn’t hyperpartisan. They try in good faith to be fair and objective, even if they often fail. Fox and MSNBC and the like try to do the opposite, they’re intentionally biased. That makes a great difference in the results.

        1. There is no question that the MSM is strongly partisan left. Fox is center right, but they have people from the left. Chris Wallace is one of those from the left. One hears most of the news at Fox whether it benefit the right or the left. The MSM is not the same. The unverified and totally phony Steele Dossier was given tremendous play on the MSM and the Biden computer story little to none.

          1. That’s the line Fox and other intentionally-biased media feed their consumers continually, as a matter of self-justification, but it doesn’t address the problem I pointed out. Fox and MSNBC are intentionally biased, they try to be biased, to support a certain controversial ideology. They mostly air overt opinion-based propaganda, highly productive of hyperpartisanship in itself and its audience.

            That’s the opposite of what the mainstream media tries to do. The difference is stark. Actually trying to rise above bias works much, much better for arriving at truth and avoiding partisanship than trying to cater to and promote bias.

            That the mainstream media has been very cautious with a suspicious story they can’t verify essential pieces of isn’t a sign of bias. Even Fox, which has a real news division hidden among all the opinion-based dreck, reportedly turned the story down before the Post got it, and the Post reporter who wrote most of the original story reportedly refused to attach his name to it. That should tell you something about the journalistic side of it.

            1. Fox news is center right but the actual news division shows both sides of the story. Don’t confuse the talk shows with news.

              The network shows (ABC, NBC and CBS) are left. They do not report certain news until forced to, IMO.

              Since you spent effort on this reply lets compare the news shows between the left and the right (Fox and the networks, not the opinion shows, for convenience start late afternoon say 4PM till midnight) on how each side reported the Steele Dossier and the Biden computer stories. You told us earlier Fox initially refused to broadcast the story on the Biden computer. How did the network shows handle the Steele Dossier which was phony? Let’s compare the news on both those stories since they are comparable.

              1. My point isn’t about what the bias of various media outlets might be. The crucial difference between ABC/NBC/etc and Fox/MSNBC/etc is between trying to be objective and trying to be biased. Their goals are opposite, and the results are vastly different. One is necessary to a free and thriving democracy, the other is more often a great hinderance to it.

                You can find instances of bias in the mainstream media, of course (Steele dossier or whatever), but it isn’t comparable to the hate-based, highly misleading material such as we get continually from Olbermann or Hannity, which is mostly what intentionally biased media fill listeners’ heads with.

                1. Hannity is an opinion show, not a news show. He never wishes anyone to be killed and supports non-violence and civil ways of behavior. His facts are mostly accurate because he is honest and in part because the left watches him so closely and will pounce on him when he is wrong. That is why he corrects his mistakes as soon as they are found. He is a strong partisan for a mixture of libertarian and conservative ideas. He calls himself a conservative because he has a lot of strong negative feelings about the Republican Party and a number of Republicans.

                  Whereas Fox will openly discuss the Steele Dossier as well as Hunter’s computer the networks positively spun the Steele Dossier until it was on its deathbed and barely, if they did, mention Hunter’s computer and the letter we discussed. In other words one can get more of both sides of the news from Fox than from ABC, NBD, and ABC. I am sure the stations are finally starting to open up.

                  I am not an expert on this subject but due to prior discussions for fun I taped shows and compared them in discussion with some others. I pointed out factual lies and information not disclosed by the left but my leftist colleagues could not do the same for Fox (they do sometimes occur).

                  1. Yes, as I pointed out before, Fox/MSNBC/etc are dominated by opinion shows. Fox News is a lot more Fox Opinion than News.

                    My point remains that such programming is highly unreliable, misleading and harmful to those who trust it and those who are affected by those who trust it, much more than the mainstream media that actually tries to be objective. Fox/MSNBC/etc exemplifies and promotes hyperpartisanship, which is harmful to the nation.

                    1. In other words you were wrong. I even said to compare real news shows.

                      Opinion shows are not the problem rather it is news shows that lie or omit the truth. You seem to have the same problem.

        2. The MSM is not hyperpartisan – Really ? You can say that with a straight face ?

          I am reading an artical by a host on NPR that she will not invite conservatives on because they will disagree with her.

          She prides herself in that explanation, she thinks that is a good thing.

          Chris Wallace is a Fox host. I thought his one on one with Trump was excellent. It was at points testy and there was some bias on Wallaces account, but mostly it was just hard hitting journalism.

          Biden has not faced a tough interview like that in a decade.

          But Wallace’s first debate moderation was ludicrously Biased. He was actively lobbing Biden softballs and protecting him as he bobbled them. He was not only testy with Trump but his questions were bad. Wallace already asked the question about denouncing white supremecists in the 2016 debates – and unless he is a complete idiot he knows Trump has done so multiple times every week since he first ran.

          And Wallace is from Fox.

          Despite Trump’s praise the moderator for the last debate was even worse. The questions were all one sided.
          When Trump attacked Biden – Biden was given the opportunity to respond. When Biden attacked Trump he was not given the same opportunity.

    2. SP.

      You are correct the only absolutely binding rules are in the constitution.

      HOWEVER, the house and senate and judiciary and executive had numerous rules and understandings that were strongly followed for most of US history. These lead to more stable, better more moderate government.

      Over time – particularly the past 40 years democrats have pushed aside each of these rules for political advantage.

      That is a major factor in the increasing modern political acrimony.

      The other probably larger factor is the increasing shift of democrats to fully adopt Alinsky’s rules for radicals as there means of politics.

      In both instances democrats have forgotten that “turn about is fair play”.

      The war over the supreme court started with Bork and Thomas – many many many republicans have not forgotten or forgiven democrats from politicizing the nominations process.

      The refusal to elevate Garland was brazenly political. But it was ALSO consistent with past norms.
      It was also a huge gamble on McConnell’s part – had Hillary won as all expected someone far more to the left would have been appointed.

      Conversely the elevation of Barrett is less political – but fully consistent with past norms.

      Packing the court is constitutional. It is also extremely unwise.

      Most democrats know it. Biden wisely will not talk about it before the election.
      If he refuses – he will lose votes on the left, if he committs he will lose votes in the middle.

      Regardless, he owes people a public committment.

      Further should democrats expand the court – that too will result in a backlash. Do not think that republicans have no further options.

      And you should be very very very scared should they actually reach the point of no options.

      The left continuously infringes on our rights. When all legitimate means of addressing that are exhausted THEN revolution is legitimate.

      ” whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it,”

      The Wolverines only mistake may only be premature.

      1. Both parties have abandoned past norms piece by piece. It’s not just the Dems. Being brazenly political, as you call the failure to elevate Garland, was itself a further step away from the previous norms, which is why the GOP tried to make it look like a principled decision instead, and ended up having to turn 180 degree on the principles they claimed.

        1. “Both parties have abandoned past norms piece by piece. ”
          Correct, but “it all started with Bork and Thomas” – and that is with democrats.

          “It’s not just the Dems.”
          Correct, but they have lead the charge.

          “Being brazenly political, as you call the failure to elevate Garland, was itself a further step away from the previous norms,”
          It was “brazenly political. It was NOT a violation of previous norms – nor was the appointment of ACB.

          “which is why the GOP tried to make it look like a principled decision instead”
          It was not a principled decision – but it was a NORMAL decision.

          “and ended up having to turn 180 degree on the principles they claimed.”

          False – I do not think the senate has ever confirmed the nominee of a president of the opposite party in the last year of his administration.
          I do not think the senate has ever rejected the nominee of the president of the same party in the last year of his administration.

          This is NORMAL.

          I understand that you do not like it. But everything you do not like is not abnormal or criminal.

          But I will completely agree with you it is “brazenly political”. As Obama said “elections have consequences”.

          Equally important – both of these GOP choices gained republicans votes. Democrats do not signficantly vote over SCOTUS, republicans do.

          You need to change the culture of your party.

    3. What would stop the GOP ?

      Many times during my lifetime it was within the power of the GOP to flip the court by adding members. In a few a fringe even discussed it.

      No significant republican took it seriously.

      I expect that Democrats will have the same understanding of the consequences of escalating this in this way as republicans.

      And I would remind them that every actual breach of the “rules” was by democrats, and that ultimately each benefited republicans more than democrats.

      So go ahead.

      I am not that worried about the future. ‘

      I expect Trump will win and this will be moot.

      But even if Biden wins, democrats face a very difficult problem. Trump has proven that the economy can do better than under Obama.
      He has proven that unemployment even among minorities can go far lower than under Obama. And Trump’s results in foreign policy are incredible.

      All that is actually tied together. Few of Trump’s policy changes are reversable without ripples downstream.

      If Biden wants to expand the court – let him.
      If he wants to increase taxes – let him.
      If he wants to make college free – let him.
      If he wants to impliment M4A – let him

      Then let him live with the disasterous economy and other problems that result

      As a nation many may want a quieter more dignified Trump – but we still want Trump – not Obama.

      If Biden is elected I will pray what I prayed when Obama was elected – and hope that this time my prayers are answered.

      First that Biden will grow into the giant shoes of the president of the untied states. Obama may have been dignified, but he was a crook and a failure.

      In the alternative that everything I know to be true is actually false, that the nonsense the left espouses actually works.
      Because the alternative – AKA reality will be very bad for most americans otherwise.

      Unfortunately I do not expect either prayer to be answered.

      I expect that like Obama Biden will be less bad a president than he could be. That he will not give the left all they want, but he will give them some of it. That as a consequence we will have a weak economy – as under Obama, and a much slower drop in unemployment than we could have.

      Regardless democrats face a massive future problem. They are losing voters. Trump took the blue collar vote from them. He sought to shrink the democratic hold on minorities. Democrats are not getting back the votes they lose.

      Should they win – in 2021 they most accomplish the impossible – them must bring about a strong economy with impossibly low unemployment, and they must deliver on promises thay know we can not afford.

      So go ahead – undo everything Trump did – and return to the Obama-Biden economy and see how well you do in the next election.

      1. “Many times during my lifetime it was within the power of the GOP to flip the court by adding members. In a few a fringe even discussed it.”

        Right, but that was in a time when different norms were recognized, and there are not coincidentally more overlap between the parties and less hyperpartisanship. That’s clearly changed.

  2. Mr. Turley writes: “In comparison with some other countries, our court is pint size. Indeed, it is demonstrably and dysfunctionally too small.”

    Your opinion on Senator Cruz’s proposed constitutional amendment, Mr. Turley – is this the Republican version of “Destroying the Court to Save It”?

    https://thehill.com/homenews/senate/521736-senate-republicans-offer-constitutional-amendment-to-block-supreme-court

    “The proposed amendment simply states: “The Supreme Court of the United States shall be composed of nine justices.””

    “Cruz and his GOP colleagues have also introduced a bill that would create a point of order against legislation modifying the number of justices on the Supreme Court.”

    1. All of this is short term satisfaction at the expense of long term results.

      Just look at the court appointments since Reid changed the senate rules to get a few appointments through the senate. Today Trump has appointed about 40% more judges in his four years than Obama or any first term of any president did in their first term. He has appointed two SCOTUS judges and heading for three, all because Reid did away with the 60 vote majority. Who would bet money on his appointment getting confirmed this fall had Red not messed up?

      So fine, expand the court from 9 to 12. Load up on another three democrat judges. Guess what in 20-30 years, those judges will have to be replaced. What happens if there is a conservative president?

      Packing the court under Roosevelt was not wise nor is it wise today.

      Now if anyone wants to cement this as an amendment to the constitution, go for it. You need a super majority of states to ratify. If they ratify, then that is what America wants. And amending the constitution takes all power from the congress who can screw up a wet dream. It also limits presidential power which looking at how that office has taken power not really authorized, that also is not a bad thing.

            1. I honestly doubt that Biden will expand the court. It is far too politically dangerous.

              But should he do so – expect backlash. And remember one option is a constitutional convention.
              There are probably already enough states committed to call one. If not we are only a few states short.

              A constitutional convention can add amendments of throw the whole constitution out as it chooses.

              The results still have to be ratified. But you could see a whole raft of amendments that can not get out of congress that would be easily ratified by the states.

                1. The normal process for a constitutional amendment goes through congress – which has proved nearly impossible.

                  But the states can convene a constitutional convention without going through congress.

              1. Yeah bring that Constituional Convention on. Im offering an Amendment

                Part 1. CALIFORNIA OREGON AND WASHINGTON ARE HEREBY EXPELLED FROM THE UNITED STATES.
                Part 2. CHICAGO AKA CROOK COUNTY FORMERLY OF ILLIONOIS IS EXPELLED.
                part 3. NEW YORK CITY IS EXPELLED

                details will follow

                im thinking Canada can have them, or Mexico, who cares

                Anybody that doesn’t like it is encouraged to leave

          1. There is no “magic” number, and contra, you, SP, and even Turley FEWER is better.

            More judges does NOT result in better decisions. Fewer does.

            SCOTUS performs two functions:

            It is the court of last resort for appeals.

            That is its least important role. We could easily create a national Superior court to fullfil that function.
            Which is primarily to reconcile court decisions accross the circuits.

            The most important task is to enforce the constitution. We need few justices for that – but we need very good ones.

            SCOTUS should not hear a case that does not have a constitutional issue. That is for inferior courts.

            1. You can see Turley’s reason for wanting to expand the Court above. Some think they’re also overworked in some ways.

              1. The SC is not a social club and shouldn’t be seeing so many issues. The legislature needs to stand up and write clear legislation. Instead all sorts of things are added to protect the legislator not the country. That is why we need term limits.

              2. There is a better solution that Turley’s. That is a US superior court – or a US Court of appeals.

                That can be as large as you wish. Their role is to handle ordinary appeals. to reconcile decisions between circuits, and to reduce the load on SCOTUS.

                You keep SCOTUS at 9. You continue to allow them to take ONLY the cases they want, and you have no workload problem.

                Regardless, you do not want the court of final authority on the constitution to be too large. I would be fine with only 5 justices.
                9 is the LARGEST it should be.

                To the extent that diversity of all kinds has value – it is in lower courts. The supreme court is there for when lower courts get it wrong.
                And specifically when government infringes on individual rights.

                It is not there to make policy.

                Assorted justices such as Gorsuch and Barrett have made the actual role of the court clear – to enforce the clear language of the constution.

                If that is not to your liking – change the constitution.

        1. “Raising the number to 11 is more likely than 12. (My own idea is posted above.)”

          Sometimes increasing numbers decrease efficiency and effectiveness. If the number on the Supreme court is to be increased then it should be fully discussed by the legislature and passed with two provisos. The law should not be enacted for 4 years after the laws passage and the number of seats added should be a max of two every 4 years.

          One thing is certain. The supreme Court is not there to push legislation through. That is the job of Congress.

          1. Don’t think Dems will settle for anything less than quick reversal of the Garland/Gorsuch swing, which would require two new justices right away. But we’ll see. Biden might support your version.

            1. The Dems should focus on legislation and legislators instead of the Supreme Court as their legislature of last resort. The Supreme Court should not even be a focus to the electorate and wouldn’t be but for the fact that Dems use the Supreme Court to run around the Constitution. We have an amendment process to change the Constitution and shouldn’t be relying on 5 Justices to do that.

              1. That is such a good point Allan. Think about Federalist 51. Begin with the angels point and work outward. We need government. If government consciously limited what they do to only what is constitutional, then elections wouldn’t be so consequential and SCOTUS would be an afterthought. It is not ever mentioned but the only reason we have the most important election in our nation’s history every 4 years, is because our limited government is way, way, way outside it’s limits and our elections are all about who will be in power to abuse the rights of the rest of us. And currently, the only branch standing in the way is the Judiciary.

              2. You left out the part about the GOP being every bit as much focused on the Supreme Court as the Dems, for exactly the same reasons. Your view of who changes the Constitution, etc, via the Court is very much in dispute, of course. Each side thinks that’s what the other does.

                1. Both parties are focused on the Supreme Court so one’s view reflects upon one’s feelings towards the Constitution. The Constitution can be changed by amendment or Constitutional Convention. I think everyone agrees about the flaws that exist in the Constitution many of which were remedied through Constitutional Amendment.

                  One basis behind making the amendment process difficult is that popular opinion can change very quickly so the amendment process is meant to slow such change down and permit the Constitution to be an anchor so we drift too far or too fast. People are fickle so they can quickly move in one direction and then in another.

                  In the last 50 plus years the Supreme Court has been used to pass legislation that was of questionable constitutionality. That meant that laws were passed by 5 members of the Supreme Court. That is the job of the legislature (that is who we voted for) who should have created laws that lived well inside of the boundaries of the Constitution. Alternatively a Constitutional amendment should have been passed instead so that the legislation would not stretch the Constitution so far that the country as a whole isn’t sure that our leaders are dealing with the same Constitution.

                  1. No one thinks they’re changing the Constitution or legislating from the bench, they all think they’re just interpreting the Constitution and law. Some think Roe rewrote the Constitution, some think Heller did. I don’t think there’s any way to avoid such differences of opinion.

                    1. What a Justice thinks is not the point. The point is whether or not the legislation complies with the Constitution. The Supreme Court doesn’t always rule the way I like but I recognize that what I like may not comply with the Constitution. Sometimes the Supreme Court does what I like but that too is wrong when it doesn’t comply with the Constitution.

                      I’m not interested in what the judges think about the law or even fairness. I am interested in the law complying with the Constitution.

                    2. I understand that. My point is that urging the Court and those who focus on it to focus on the Court not changing the Constitution doesn’t advance much because they all think they’re doing that already. It’s not a practical response to the issues involved in whether to expand the Court.

                    3. You missed the point and your basic understanding is wrong.

                      You are afraid to honestly debate.

                    4. Sanpete, you have near total ignorance about the history of the Constitution and what has occurred since. That is your problem. Lack of knowledge. That leads to you dealing in word games.

            2. “Don’t think Dems will settle for anything less than quick reversal of the Garland/Gorsuch swing”

              There is no such Swing. Scalia a conservative died unexpectedly. Had Democrats controlled the whitehouse and the Senate they could have legitimately flipped the court. But they did not have control of both – and they could not. Ultimately Gorsuch replaced Scalia.
              Gorsuch is far more libertarian than Scalia, and that is SORT of a shift to the center not the right.
              Gorsuch is much stronger on individual rights than Scalia and much stronger on actual civil rights – substanitive due process, the 4th amendment, .. and much stronger on limited government. Much of that should appeal to the left – it would have 40 years ago.

              Kavanaugh replaced Kennedy – no swing.

              The only “swing” is the replacement of RBG with ACB. It remains to be seen how that will actually play out. ACB is like Ginsberg (and Gorsuch) a strong propoment of civil and criminal rights, substanitive due process, the 4th amendment.

              Contra the fears of the left it is not likely she will overrule Roe. But unlike Ginsberg she is likely to support limits on abortions that 80% of americans favor.

              That is not much of a swing.

              The Key differences will be on the bad decisions of the past couple of terms. The Roberts nonsensical one of a kind decisions.
              With ACB we will have none of this nonsense that you can not ask citizenship on the Census. Or that the Administrative procedures act applies to undoing acts that did not conform to it when enacted.

              “which would require two new justices right away.”

              There is no requirement at all. While you are correct that the constitution does not dictate the number of justices – nor does it dictate the ideolgical makeup of the court. If Trump is re-elected and gets to replace the remaining 3 left wing justices (unlikely) – that is just how it is.
              And that would be a very good thing.
              If Biden is elected and several of those purportedly on the right died or retired – Biden could replace them with any justice he could get confirmed.

        2. I have said for years, once you crack the door for politicians, they will eventually storm through it. So Reid opened the door for all appointments. McConnell stormed through and completed the senate rule change. Had Reid not opened the door and left decades of senate rules in place, we would not be were we are today.

          And I suspect Shumer will complete the transition when he gets control and end all filibusters.

          1. That’s a rather arbitrary distinction, between cracking the door and opening it further. I don’t think there’s any sound basis for believing that Reid’s action was the key, or the first crack. For one thing, it was in response to GOP obstruction that was itself seen as outside proper norms.

            Seems to me this movement away from norms was inevitable with the move towards more hyperpartisanship, which recognizes no norms above partisan advantage.

            1. Who owns the longest filibuster in history?
              Stromb Thurman, (D) South Carolina
              1964

              Dont give me “Republicans obstruction” caused the change. That is political B.S. The filibuster was and always has been the tool to insure a more moderating result out of the senate.

              Reid changing the rule screwed up anything moderate coming out congress, thus further polarizing America!

              1. I didn’t give you “Republicans obstruction” caused the change. What I said is that it was part of the process. It was viewed as outside the norms to filibuster just because they could. It wasn’t based on any objection to the fitness of the candidates. The norm had been that only fitness to serve should be a basis for rejection, which is what the filibuster amounted to.

                Your view of this is highly, highly selective.

                  1. More completely empty assertion. I explained how it’s selective. If you have any rational basis for disagreement with that explanation, please explain what it is.

                    1. Ron’s statement: “The filibuster was and always has been the tool to insure a more moderating result out of the senate.” is very fair and historically reasonably accurate. You did not adequately ” explained how it’s selective.” and I don’t think your response recognized that the filibuster was used for all sorts of things.

                      Harry Reid was another excellent example by Ron and you didn’t even touch on that.

                    2. Ron’s analysis is highly selective in focusing on only one event as the key: Reid’s removal of the filibuster for lower court nominees. I’ve been pointing out that was only one step of many taken by both sides over decades.

                      I haven’t objected to what you quote from Ron.

                    3. People look at the major events and then might add the minor ones. Ron gave one event and I added a second, Bork. The second is so memorable that it became a verb. We should focus on the big stuff unless we go into depth. You should just complement Ron for his response and provide one of equal significance in your rebuttal. The fact is if we each provided one incident or name alternating responses you would run out while the right had plenty of responses left.

                      The one who probably has the most knowledge on this is DSS and if he wanted to I think he could make an impression on you. You should ask him the next time he is around.

                    4. The distinction between big and small in this context involves subjective values, and often no small amount of bias, and thus each side sees the steps of the other side as big and their own as small, if they even acknowledge they were movements.

                      It’s not objectively true that removing the filibuster for lower court nominees was a bigger step than obstructing them with the filibuster for reasons unrelated to fitness, or removing the veto for Supreme Court nominees. Objectively, all of those are significant moves.

                    5. Once again you are either very uninformed or afraid to deal with the questions at hand. You rely almost solely on wordplay.

                  1. Hard to follow that chart in this context, as it seems to be about filibuster in general by both parties, but yes, each party has done its share in reaching this point.

            2. The Bork hearings was a milestone and Teddy Kennedy, the Chappaquiddick triathlon winner (Drink, Drive and Swim) was a major player there and elsewhere. No morals.

              1. People who knew Kennedy personally including Orrin Hatch, and someone I knew who worked for him, strongly disagree with both your casual disrespect and your claim he lacked morals. Both points are typical of hyperpartisanship.

                Do you recognize how big a role hate plays in your politics? Hyperpartisanship naturally turns quickly to hate. Fox, MSNBC and the like are filled with hate.

                1. “People who knew Kennedy personally including Orrin Hatch, and someone I knew who worked for him, strongly disagree with both your casual disrespect and your claim he lacked morals. Both points are typical of hyperpartisanship.”

                  Really? Most of us have friends that we might associate with whose morals might not meet our standards yet we still associate with them and being the decent people we are we don’t take every chance we have to call them immoral bas.tards.

                  Let’s start with Kennedy’s morality right at the point where he went over the bridge and the girl died. Do you wish to tell us your version of the story? Then we can discuss his hypocrisy in places he considered home. Then we can talk about his escapades at Au Bar and Bork. Afterwards we can discuss him further to find out what you find morally acceptable.

                  “Do you recognize how big a role hate plays in your politics? Hyperpartisanship naturally turns quickly to hate. Fox, MSNBC and the like are filled with hate.”

                  You make a lot of empty statements while mind reading. I don’t hate one for their political ideology unless that ideology is promoting violence and pain. I don’t beat them up or destroy their property if their politics differ from mine so I think we should have a discussion regarding your morality and how much hate plays a part in your ideology. We can start with Antifa and BLM that have been burning down neighborhoods. You seem to find that acceptable enough that you don’t stand up and say STOP.

                  1. I’m not interested in discussing the particulars of Kennedy’s morality. What I said above is true: those who actually knew him and worked with him disagree entirely with what you said. They admired him for his moral commitments, even when they disagreed.

                    What you say answers my question. You aren’t aware of the role hate plays in your politics. You seem to imagine that it doesn’t show in what you say. No mind reading is required to see hate in what you said about Kennedy, or in other things you say.

                    Your remarks about my views of Antifa and BLM are bizarre, as though I should be sprinkling my comments with random remarks about them. And talk about bad mind reading! It happens that you’re manifestly wrong, as so often:

                    https://jonathanturley.org/2020/10/18/conservatives-attacked-by-blm-and-antifa-supporters-in-effort-to-hold-free-speech-rally-in-san-francisco/comment-page-2/#comment-2015328

                    1. “What I said above is true: those who actually knew him and worked with him disagree entirely with what you said. They admired him for his moral commitments, even when they disagreed.”

                      Do you mean they liked what he said or what he actually did. Yes, he had people around him that did a good job in using the Kennedy name but that was not Ted. People may agree with the speeches because they represented an ideology agreeable to many. But the man himself was a hypocrite, not terribly bright and lacked moral principles.

                      “What you say answers my question. You aren’t aware of the role hate plays in your politics. ”

                      That is a foolish thing to say. Hate is more likely coming from the left and from you.

                      “No mind reading is required to see hate in what you said about Kennedy,”

                      I don’t generally hate people including Kennedy but it seem you approve of him causing the death of Kopechne after driving drunk and then going into hiding to protect himself instead of her. I guess you feel it OK that he proposes wind turbines except when he sees them in his back yard. I guess you feel it OK to have blacks forced to carry green cards on Palm Beach Island where Kennedy frequently stayed (The Kennedy Mansion). He talked a lot about civil rights, but civil rights wasn’t included where he lived.

                      By the way, just to let you know how “hyper partisan” you have become in you attacks on me wrongly calling me a hateful person. That is your type of politics not mine.

                    2. Again, those who disagree with you about Kennedy include Orrin Hatch and others who worked with him, didn’t only listen to his speeches, who unlike you actually knew him well for decades.

                      Your hate is plain because it’s the opposite of what love is, which is charitable in how it views others. Very importantly, love removes the beams in one’s own eye before judging the motes in the eyes of others.

                      The hate of leading personalities on the other side is a major feature of hyperpartisanship on all sides. Trump, Obama, Bush, Pelosi, McConnell, etc etc, they’ve all been objects of widespread vile hatred.

                      You can see from this line of thought, by the way, how hyperpartisanship is anti-Christian. So much hate, so little love for the perceived enemy. Outlets like Fox and MSNBC are all about collecting the motes in the eyes of the other side, the opposite of Christian teaching, which teaches looking inward first. And it’s not just a glance needed. It’s hard to get those beams out, can take years.

                      But such points, however plain and simple, make no impression of hyperpartisans except as they think they apply to the other side, ironically.

                    3. You are a hateful woman and express your hate by lying.

                      One can see your lack of morals in what you say. To you Kennedy is a wonderful person. He drove drunk ( not infrequently) killed a woman and the first thing he thought about was his career. Pretty much like you I guess. He was a hypocrite and I mentioned two items that demonstrate his hypocrisy. Why should anyone think you aren’t a hypocrite.You apparently think his actions were fine. Did you ever meet him at Au Bar? Drunk and his zipper was always open. But he’s swell in your eyes. Your standards are pretty low.

                      You engage in word games and very little more but everything you do points to a dishonest hateful hypocrite.

                    4. Wow. If you’re trying to illustrate what I said, you’re succeeding. Your defense mechanisms are fully engaged, so nothing I say can reach you for now. I hope you’ll figure these things out for yourself someday. Hate is bad for the soul, and for everyone else.

                    5. Sanpete, you have already gotten to the point of so much hate it spills out of you and you try to throw it on everyone else. Over and over again I presented data and dealt with the issues. You couldn’t handle it just like you couldn’t handle the email letter implicating Joe Biden.

                  1. You mean when he was a student. Lots of young people are asses, but some grow up eventually. If you disagree with what I said, you’ll have to address his life as a whole.

                    1. It wasn’t just when he was young and a student. His problems went with him through life until the time of his death.

                      His long term personality was adequately displayed at Chappaquiddik.

                    2. I can’t help it if you think running away from killing someone represents a decent man. You seem to stand up for indecency. Take note how you stayed away from the facts.

                      You don’t know what those people thought about the man Kennedy. You might know what they thought about him as an ally. You are too disingenuous

                      No matter what facts are presented you just walk away depending on word games. You have no credibility.

                    3. Your defense mechanisms prevent you from understanding even the simplest points (hint: Hatch was generally not an ally). What I’ve said is plain enough, should you ever decide you want to understand it.

                    4. You are such a simpleton. There were many friends across the aisles years ago. Don’t forget RBG and Scalia were good friends. It’s amazing that it took you so long to understand these things that most people have known for decades.

            3. Reid did not crack the door – he swung it wide open. McConnell merely pushed the door from 85 degrees to 90.

        3. Only a left wing nut beleives that you need to interpret reality to get history.

          The fact is Reid changed the rule on votes for judicial confirmation.
          That made it far easier for both parties to nomimate more “extreme” judges – and republicans benefited from that thus far more than democrats.

          1. Lots of people are naive enough to believe their version of history is the objective one, but those people seldom agree what it is. There’s a great deal more to this story than the one bit you focus on.

          2. John, many facts can be determined purely objectively, but often the interpretation of the relevance and contex of facts depends on “weltanschauung” ie world view and that is always at its root a matter of philosophical convictions. Interpreting reality is foundational for almost all deriavative social, political, and economic matters

            Leftists are “tuned into” this and everybody else should wise up about it too.

            Leftists actually derive a lot of their practical power from their command over critical institutions like universities that can determine WHAT and HOW the young people think, which over decades, has given the Left more and more pull.

            The only long term way to reverse this is to regain control over universities and begin the process of rectification. It must happen with vigor and thoroughness.

            The good news is the entrenched Leftist viewpoints actually offer some of the tools that are needed to do the job.

            Those tools are often coercive to one degree or another. But they are precisely what can be used to set some of these things right for the long run.

            To accomplish this, everyone who wants to unhorse the Left, has to first abandon the old Enlightenment bromides holding us back.

            This is why I recommend the political works of Leo Strauss and Carl Schmitt

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