After the Virginia Supreme Court rejected the results of the recent Democratic effort to effectively wipe out Republican representation in the state, Democratic pundits and activists have latched onto a proposal by Michigan State Law Professor Quinn Yeargain to gut the court by forcing the retirement of the current justices, appointing liberal activists, and then reversing the opinion. It is extremely telling that some are pushing the raw muscle play to retake power in Washington, particularly in light of the calls to pack the United States Supreme Court once the party is back in control.
Professor Yeargain declared on Substack that there is “a simple – and lawful – solution: Send the entire court into early retirement.” Under this plan, Virginia Democrats would adopt an absurdly low age for retirement in a gut-and-pack scheme: Yeargain suggested that they could set “the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed.”
The current retirement age is 73.
Yeargain dismisses that number as “arbitrary” and says that the Democrats need only to “Make it 54 for Supreme Court justices – the age of the youngest justice, Stephen McCullough, who joined the majority opinion – and make it take effect immediately.”
The fact that such an abusive plan is described as “simple” captured the logic of an age of rage. I recently wrote a column in which I warned that “the reversal of fortunes for the party could lead to an even more dangerous agenda” with Democrats pushing for packing the Supreme Court.
In the unlikely chance that this could pass the General Assembly (I am assuming that there remain some things that certain Democratic members just will not do), it would be difficult to engineer before the midterm elections, given the likely challenges. However, it is the inclination of some to try such measures that is chilling.
I noted that Virginia showed how “an independent court can unravel the best-laid plans.” Various politicians and professors have advocated radical changes to the political system to ensure the party retains power indefinitely. They acknowledge, however, that the Court could likely declare these moves as unconstitutional unless they first take control through a packing scheme.
The new proposal for the sack-and-pack scheme is even more cynical and brutal. Ironically, the Virginia Supreme Court declared the redistricting effort by the Democrats as not only unconstitutional but “wholly unprecedented in Virginia’s history.”
It characterized the state’s position as “a story of the tail wagging the dog that has no tail.”
The response of Yeargain and Democratic activists is now to suggest just shooting the dog and adopting a type of politically modified puppy bred to serve.
Such radical proposals are being rationalized with open disinformation. Pundits regularly fail to mention that the Democrats previously gerrymandered states such as Illinois, Massachusetts, and New York while claiming the right to win by any means necessary.
Others just deny reality. Sen. Tim Kaine (D., Kaine) lashed out at the Virginia Supreme Court and demanded to know why they waited so long to rule on whether there were fundamental flaws in the Democratic plan.
Kaine either never read the opinion or sought to mislead voters. The opinion has an entire section on the timing, noting that it was the Democrats and the Commonwealth that demanded that the Court wait to rule on the merits until after the election. After “successfully” seeking that delay, they are now accusing the Court of something untoward in doing what they demanded.
Notably, the sack-and-pack scheme sets aside any pretense of principle. The Democrats would simply adopt a ridiculously low retirement age for the sole purpose of populating the court with reliable and robotic justices. The fact that an academic and various pundits would expressly float such an idea is another chilling reminder of the growing radicalization on the left.
These are the “new Jacobins” discussed in my book Rage and the Republic, figures echoing the radical concepts or means used in France before what became known as “The Terror.” “By any means” has become a rallying cry on the left.
Law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale have called for the nation to “reclaim America from constitutionalism.” Last December, they published a column titled “It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced.”
Democratic strategists know that the public will not approve of such measures.
Democratic strategist James Carville stated matter-of-factly, “They’re going to recommend that the number of Supreme Court justices go from nine to 13. That’s going to happen, people.” He added recently, “Don’t run on it. Don’t talk about it. Just do it.”
What is striking about the Virginia proposal is that it is being pushed so openly and unapologetically. Democrats realize that they have alienated half of Virginia already. Republicans and independents are not likely to forget that every major Democrat in their state, including Gov. Abigail Spanberger, sought to erase their very political existence. It is not partisan, it is personal.
In destroying bridges to cross-over voters in the purple state, what is left is raw political brutality. You must dump-and-pump in seeking radical measures to grab power. In the process, no court or institution is sacred in the cause of social and political change.
It is all part of the Nike School of Constitutional Law: Just do it.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
This column ran on Fox.com.
Please remind me again: in which party are the fascists?
Any attempt by the VA legislature to impose a mandatory retirement age of 54 for judges (but not for anyone else) would immediately be challenged in federal court under the Equal Protection clause.
The decision in Gregory v Ashcroft depends crucially on a finding that “The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70.”
The same could not be said for 54, even if that were proposed in the normal course of legislation. It certainly can’t be said when the motive is as blatant as it is here.
The decision also cites a Missouri court’s findings that:
“[t]he statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system;”
“the statute . . . draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not;”
“mandatory retirement increases the opportunity for qualified persons . . . to share in the judiciary and permits an orderly attrition through retirement;”
“such a mandatory provision also assures predictability and ease in establishing and administering judges’ pension plans.”
None of these considerations can apply to a sudden 19-year reduction in the retirement age!
So this would have to go all the way to SCOTUS, by which time it would be far too late for the legislature to elect new judges and take the case back to them and get the decision they want, and then pass the 10-1 map again.
I tend to agree with you. In Gregory v. Ashcroft (1991), the retirement age of 70 was upheld, but in doing so, the Court spelled out the standard for a plantiff challenging such a law:
In an equal protection case of this type those challenging the [retirement age] must convince the court that the facts on which the classification is apparently based could not reasonably be conceived to be true.
If the “facts on which the classification is apparently based” is that judges get too old after 54, then I predict the plaintiffs will win since that “fact” cannot reasonably be conceived to be true.
However, if the “fact” on which the classification is based – i.e., the “real” fact on which it’s based – is that lowering the retirement age to 54 will pave the way for the overturning of precedent so as to implement extreme partisan gerrymandering, then that fact will be deemed true, but insufficient to defend the new law. Because in addition to the fact being true, under the rational basis test it must serve a legitimate state objective. And there is no way a majority of Scotus will conclude that overturning precedent so as to implement extreme partisan gerrymandering constitutes a legitimate government objective. The three liberal justices might so conclude, but they will not get two of the more rational justices to join them, in my opinion.
Mr.
The oath of office for lawyers in my state starts off with “support and defend the Constitution of the United States and the state constitution. These law professors should be defrocked.
from website “Biography
Quinn Yeargain (they/he)”
Figures! they/he
So what? As long as it is not illegal is is fair game.
Slavery was legal in the South for many years. I guess you think that was fair game too.
It is illegal.
This is your standard?? I feel sorry for you.
Could a referendum petition stall this legislative act?
It’s the tactic of a monarch. The court won’t rule our way? Off with their heads.
As Republicans vacated blue states, blue states began to lose districts. Mass migration followed. 435 is a zero sum.
Carpe diem
I teach a course in civics. I love the reaction when I compare the US independent court system to the Russian court system where the judges do and say whatever Putin demands. This is what these left wing liberal fanatics are demanding. Courts that do what they say. Not independent courts. When we lose an independent court system we lose the republic.
What’s their end game? To become a ruling elite ?
Who? Illiberal leftists? Yes, that is their end game.
To become the slavers they always were.
Judges are sworn to support the “manifest tenor” of the Constitution.
They don’t.
Roe v. Wade stood as totally corrupt law for 50 years.
Because secession is not prohibited, secession is prohibited.
Freedom vs. Communism
Communism is unconstitutional.
____________________________________
Thou Shalt Not Covet
Thou Shalt Not Bear False Witness
Thou Shalt Not Steal
________________________
Democrats intend to take money from productive people and give money to unproductive people.
The Constitution provides freedom to people who take care of themselves while making charity voluntary.
The former is irrational and unproductive, while the latter is rational and productive.
Another radical. woke, nut job Democrat Professor. He is farther left than Lawerence Tribe? The re is no room in the Democrat Party for moderate DEM’s.
Professor Turley writes, “Democratic strategist James Carville stated … ‘Don’t run on it. Don’t talk about it. Just do it.’” Otherwise known as the Spanberger maneuver. Whatever the future holds, the one thing we know for sure is that Abigail is a vicious liar.
Everybody knows a radical who used to be a liberal,
everybody knows a communist who used to be a radical,
everybody knows a jihadist who used to be a communist,
but nobody can find a liberal anymore.
This is the fundamental problem with liberalism in every Western country: it’s a gateway drug to every “ism” that kills democracy.
“The Spanberger Maneuver”
History made.
For those who like the idea of a government by experts, a technocracy, this is just one more illustration for why that is a bad idea. Professor Yeargain is listed as a Professor of the Law of Democracy and I am sure he is well versed in the technical aspects of the law yet he displays the morals and impulses of a five year old. As citizens, we are faced with addressing challenges requiring technical knowledge but we should be skeptical of any claims of the superior judgement of these technical experts such as physicians in the pandemic, climate scientists regarding climate change, or any one of the various governmental specialist agencies. I’m sure there are a lot of bright well meaning, conscientious, and technically astute individuals but that doesn’t mean that they have values superior to those of the average citizen.
Turley finds a scrap of red meat, declares it an entire cow, and the Conservatives latch onto the bacon-bit sized morsel and declare a victory.
That is a common refrain among the Turley bashers who can’t refute the substance of his posts.
The problem, of course, is that Turley has not found one or two stories you metaphorically refer to as scraps of red meat. Over the past decade, he’s found dozens of them. Enough scraps or red meat to feed a carnivore convention.
It’s the Democrat Party, not the DEMOCRATIC Party. That group is certainly not democratic – they are trying to destroy democracy as we have know it for decades
All candidates in calif are listed as democratic. Democrat doesn’t exist.
The Democrats are not hiding who they are or what they want to do to us. I wish the (collectively) stupid Republicans would take them at their word and respond accordingly.
Stated more succinctly: Democrats are evil and should never again be allowed anywhere near the reins of governmental authority or power. Full stop.
If Lincoln thought the union was fracturing over slavery, I wonder what the current chaos of comminists, anarchists, progressives, islamists and illegals (and their moronic protectors) should produce as a reaction to the eminent death of this nation. If these haters, psychopaths, insane and/or indoctrinated and witless tools are not contained now it may prove to far gone to save what our founding fathers envisioned. We have become so complacent as to think that somehow the invisible hand of government (or whatever you choose to think runs this show) will just smooth it all over because we are invincible as a nation. Well, that’s what all great nations thought at one point until they were too far gone to save themselves.
“The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”
“[The safety of a republic depends] essentially on the energy of a common national sentiment, on a uniformity of principles and habits, on the exemption of the citizens from foreign bias and prejudice, and on that love of country which will almost invariably be found to be closely connected with birth, education and family.”
– Alexander Hamilton
Naturalization Acts of 1790, 1795, 1798, 1802
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof….
The main thing disturbing to me is that the National Democrats have not altered their losing policies. You would have expected the Democrats, after Biden won, to have forged ahead with a more moderate policy emphasizing control of spending, stronger controls on Iran, pushing trade policies to strengthen the middle class and revive the rust belt and revive manufacturing, pushed nuclear energy and not the dream of solar and wind which had no reasonable ability to solve future energy needs. Instead they went right back to the same policies that led to Trump beating Hilary and redoubled their efforts beyond reason. And surprise, surprise they lost again only worse.
Seems to me they are just trying to do this for a third time and only more radical.
They forget that the second amendment is there to counter any permanent seizure of power. So far the left has been the main pusher of political violence leading to death. The Right will likely not sit back and allow this for ever. I don’t know where that tipping point is but the more radical they get, the closer we come to that point where stopping or reversing actions become impossible to do.
The Democrats talk about power and not superior policies. Maybe they should reconsider that approach. And not immediately ditch what they promised before getting elected. Spanberger did it in Virginia. Merz did it in Germany, Starmer did it in the UK and their public’s are not happy.
The Democrats taking on Republican policies and doing what the Republicans want makes no sense for them to do. Democrats won’t vote for those policies and Republicans won’t vote when there is a (D) after the name on the ballot.
Essentially, GEB, you have created a suicide plan and want the Democratic Party to use it. No need to suggest that is moronic; what is useful is to identify just what kind of moron would write that plan and post it in public.
Want $10.00 a gallon gasoline? Vote Republican. Recall how Trump crowed that one station in the US was $1.99 a gallon and now it is nearly $5? He’s going to make it worse. Food costs are driven by fuel costs, so those will go up. More money going to food and fuel leave less for everything else; expect the Rust Belt to decay further when their goods are priced out of the market.
Low information voter here. I’m confused. Are we talking about Virginia or Venezuela? I know the system is not the same, but the politics appear to be strikingly similar. Hugo Chávez wrote this playbook: Promise one thing, do another. Ignore the Constitution. Mislead the electorate. Gut the Supreme Court. Install cronies. Manipulate the electoral system. Prevent your opponents an effective opposition. Install more cronies. Consolidate power. Am I missing something?
This measure was put before voters – the majority of the voters agreed with the new districts.
That is what you are missing – the Republicans don’t want what the voters want.
It doesn’t matter what the voters want. The voters are NOT ENTITLED to violate the constitution. And the constitution can only be amended by the procedure it prescribes.
The VA constitution does allow itself to be amended by referendum — but only after the legislature has passed it before an election begins, and then again after that election has ended, and has then waited 90 days, and then posed the question in a legitimate manner, and only then may voting on the referendum begin.
The US constitution is even tougher to amend. Try holding a referendum on an amendment to that; it doesn’t matter how big a margin it gets, the constitution will remain the same until the amendment is passed by 2/3 of each house, and by majorities in both houses of 38 state legislatures.