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Markos and the chilling, all powerful Banhammer? Not this dude. No one has ever voted for him with a ballot, their contributed written brilliance, or even their pocketbook.

Yet, within any number of contexts in the past, and, with absolute certainty, any number more going forward, his unreviewed and unreviewable power to control issues in the public square exceeds those of Pelosi, Boehner, McConnell, and Reid put together. Now throw President Obama into the mix, and, you know what, the same result.

FULL DISCLOSURE: If nothing can possibly sway your absolute conviction that our current Constitution is adequate to both the crises of our times, and our supreme challenges going forward, you will want to save yourself the time and trouble of flipping to page 2.

Here you go, contemplate this: Anthony McLeod Kennedy. AKA Justice Kennedy, he who puts to shame the clout of Roberts, Alito, Scalia, and Thomas put totegther. But, then again, only when he's of a mind to (for every reason, any reason, or even no real reason at all). Oh, but there is one real confidence builder (or one more if you get warm fuzzies from the fact that he could, not unfairly, be described as the Justice from the Vatican), in a profession absolutely dominated by practitioners holding Juris Doctorate (or above) degress, the highest educational accomplishment of King Kennedy is an LL.B.

But none of this is to personally fault the good gentleman. He is truly the product of our system of government, and not only predictably, but even inevitably so. No one said "you can put four on the right, four on the left, and yourself in the middle", and he neither could have, nor did, create the dysfunction that he aggrandizes himself within the midst of. 5-4 right, 5-4 left, 5-4 whatever, yeah that Justice Kennedy. Would, perhaps, that he had the strenght of character to elevate himself above the challenge so presented, but how? Retire, and let so many lesser souls wreck how much untold additional havoc on the society? Or just sit back in chambers, wheel and deal all over the building and look down and say "it is good"? (Did I say king, or god, in my title?)

We might, or might not remake the Executive. I, personally am of no strong mind on that. The Legislative Branch? SO, SO, UGLY! That's an automatic clean sweep for any thinking person. And, finally, the Judicial Branch? I like an independent judiciary, and would like to see us achieve that. But I simply cannot imagine that anyone really favors one person running the SCOTUS. (And lest anyone invokes the spectre of "The Warren Court", I'd suggest that you carefully review the far fewer number of 5-4 decisions back then.) What I can't stand, what we have to end, is the reign of King Kennedy (or whoever).

So, a modest suggestion - 21 Justices, 9 Justice randomly (very, very randomly) selected panels, and at least some control on both precedential overrule, and the authority of En Banc panels.

THE SECOND AMERICAN CONSTITUTIONAL CONVENTION.

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Comment Preferences

  •  Tip Jar (1+ / 0-)
    Recommended by:
    Kevskos

    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

    by oldpotsmuggler on Tue Jan 22, 2013 at 07:02:04 PM PST

  •  We had a couple of regular (8+ / 0-)

    posters who would frequently call for a Constitutional Convention.

    There are a number of issues though. The current make-up of the States is not conducive to getting much in the way of a progressive agenda through, and indeed it could get a lot worse than it currently is.

    Second ... No one quite knows how it would work, because it's never been done.

    Congress would play a significant role, but they are going to have to thrash that out because ... it's never been done.

    I'm left concluding that in an ideal world, it might be a quick way to fix a few issues, but then in an ideal world we wouldn't need to.

    This suggestion is attractive at first sight, but the devil is in the detail, and the detail makes it impractical.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    Who is twigg?

    by twigg on Tue Jan 22, 2013 at 07:22:18 PM PST

    •  I shudder to think (7+ / 0-)

      of what could happen if we actually tried to open up a Constitutional convention.  Despite some roadbumps, the Supreme Court's major opinions over the last 50 years or so have been pretty good.  If we want to clear up the Constitution on the issue of the Second Amendment or Citizens United, we'd have to be prepared for others wanting to clear it up on Roe, Griswold, Miranda, Brown, Engel, etc.  Don't open Pandora's Box unless you're sure you'll only get butterflies.

      •  We Can't Govern Because We're Totally Overwhelmed, (3+ / 0-)
        Recommended by:
        twigg, Tailfish, Villanova Rhodes

        therefore

        [waves hands]

        and we create a government that works.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Tue Jan 22, 2013 at 08:06:16 PM PST

        [ Parent ]

      •  Have you noticed that the left has a majority (1+ / 0-)
        Recommended by:
        Kevskos

        (and growing) now? Just saying.

        There can be no protection locally if we're content to ignore the fact that there are no controls globally.

        by oldpotsmuggler on Tue Jan 22, 2013 at 08:22:20 PM PST

        [ Parent ]

        •  No, I don't think they do (3+ / 0-)

          as the concept of a "majority" would apply in a Constitutional convention.  

          The amendment in a convention needs to be approved by 3/4 of the states.  Unlike presidential elections, the population of a state doesn't matter.  It's one state one vote.  So Wyoming has the same voting power as California.  I'm not sure that in this context, the left would come out ahead.  There are a lot of little (by population) red states out there.

          •  Hello! Think about what you just said! We (1+ / 0-)
            Recommended by:
            Kevskos

            haven't even had our Convention. How can you possibly have any idea what criteria would be set for Ratification?

            (And I certainly hope that you're not referring to something that someone did more than two hundred years ago.)

            There can be no protection locally if we're content to ignore the fact that there are no controls globally.

            by oldpotsmuggler on Tue Jan 22, 2013 at 08:46:23 PM PST

            [ Parent ]

            •  The criteria for a convention (3+ / 0-)
              Recommended by:
              Quicklund, DEMonrat ankle biter, elmo

              are described in Article V of the Constitution.  It says that an amendment needs to be approved by 75% of the states (through their legislatures).  

              •  Come on. We're much brighter than that!n/t (0+ / 0-)

                There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                by oldpotsmuggler on Tue Jan 22, 2013 at 09:30:35 PM PST

                [ Parent ]

                •  Sorry, but it's not being "brighter" (0+ / 0-)

                  to think that the existing legal requirements for amending the Constitution can be ignored. Sure, you can change those requirements through an amendment to the Constitution, but that amendment must be approved under the existing legal framework.

                  •  Among Constitutional scolars, there are certainly (0+ / 0-)

                    those who accept the fact that any generation holding a Con-Con is clearly equal to the first one. The constraint is that the population can be trusted to not give assent to that which would not be better than the original. Failure to ratify would render the end product a nullity.

                    There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                    by oldpotsmuggler on Wed Jan 23, 2013 at 07:56:57 AM PST

                    [ Parent ]

    •  Dude, you talked about the Parlimentary system (1+ / 0-)
      Recommended by:
      Kevskos

      in the U.K. Or, really, bragged about it. And I can't bag on you. Except for the recent terrible results it often works. Here, for our legislative branch, even if there were a way to exclude our recent results, it doesn't work. Multi party, yes. "No confidence", yes. A so called two party system that really is nothing more than two wholey owned subsidiaries of the 1%, not so much.

      That having been said, I watch for you to propound any marked improvements upon what we here inherited from a once illustrious group of "Forefathers". And then I wait some more. Crickets.

      I think that your fundamental failing is that you misapprehend "democracy". And that you overly credit the democracy pessimists.

      You cannot, nor can anyone else here dispute the equality of this generation of people with the one from 1787. "Oh, guess what, THEY told us we can't go there. We're not entitled to do what they did as normal citizens, as natural humans."

      Simply put, "Balderdash."

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Tue Jan 22, 2013 at 08:10:15 PM PST

      [ Parent ]

      •  There is a Diary, immediately (0+ / 0-)

        below Top Comments on the Diary List.

        It has some interesting points about changing the Constitution.

        I didn't really brag about the Parliamentary system, I simply described it to demonstrate why looking at British solutions to gun control is fraught with difficulty.

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Tue Jan 22, 2013 at 08:17:48 PM PST

        [ Parent ]

        •  No it doesn't. That's pablum (I mean, CSPAN in an (1+ / 0-)
          Recommended by:
          Kevskos

          empty chamber, come on.)

          Dude, I put shit squarely on the table, and you want to dance. What the fuck is that?

          If you have reservations about the mechanics of The Second American Constitutional Convention, ask, or tell, but at least engage. Unless, of course, you can't.

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Tue Jan 22, 2013 at 08:54:19 PM PST

          [ Parent ]

          •  I did that in my first comment (0+ / 0-)

            In theory, the idea is sound.

            In practise, no one knows how it might work, if it might work, and the dangers inherent are legion.

            That is why no one is proposing such an approach.

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Tue Jan 22, 2013 at 09:14:13 PM PST

            [ Parent ]

            •  "No one" was a couple of years ago. Me, on the (1+ / 0-)
              Recommended by:
              Kevskos

              other hand, I go back more than thirty years on this.

              Anyway, Google Con-Con. It had a session at Harvard recently. And I wish that I could have said THAT 30 years ago.

              There can be no protection locally if we're content to ignore the fact that there are no controls globally.

              by oldpotsmuggler on Tue Jan 22, 2013 at 09:36:34 PM PST

              [ Parent ]

      •  ps ... (1+ / 0-)
        Recommended by:
        Kevskos

        "Balderdash" is a great word.

        I applaud you for that :)

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Tue Jan 22, 2013 at 08:18:52 PM PST

        [ Parent ]

  •  What? Whatever you are smoking it must be good. (1+ / 0-)
    Recommended by:
    cph
  •  Don't understand your point about the LLB (4+ / 0-)
    Recommended by:
    VClib, pico, Villanova Rhodes, elmo

    Whatever your point is, it's not particularly germane.

    The LLB is the degree that was commonly given in the US as the professional law degree,  before law schools began adopting the JD.

    The older justices, including Ginsburg, Breyer and Scalia, all have LLBs.   Are you questioning the qualifications of Ginsburg and Breyer, as well?

    •  Not germane, fine. Also Breyer, etc. are not (0+ / 0-)

      Kennedy. Care to go there?

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Tue Jan 22, 2013 at 08:27:59 PM PST

      [ Parent ]

      •  The point is that, whatever your overall argument (2+ / 0-)
        Recommended by:
        Villanova Rhodes, elmo

        is, you have detracted from its effectiveness by including a snide reference to Kennedy's degree, as if it were somehow inferior to that of the others on the court.  

        •  No, really, you missed the point that Kennedy is (0+ / 0-)

          patently deficient by adopting the obvious mindset that he deserves to control so many things for the rest of us.

          Which Justice said "I'm not on the Supreme Court because I'm right. I'm right only because I'm on the Supreme Court". Proper humility if you ask me.

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Tue Jan 22, 2013 at 08:37:20 PM PST

          [ Parent ]

  •  I had a Manhattan tonight...my first (3+ / 0-)

    in a long time.

    Now I think I'll have another.   Why not?  It's all a blur here anyway.

    It's the Supreme Court, stupid!

    by Radiowalla on Tue Jan 22, 2013 at 08:02:31 PM PST

  •  Re: Markos... (4+ / 0-)

    ...he owns the site, and we are his guests.

    Float like a manhole cover, sting like a sash weight! Clean Coal Is A Clinker!

    by JeffW on Tue Jan 22, 2013 at 08:07:50 PM PST

  •  Are you nominating kos for the Supreme Court? (7+ / 0-)

    That's one way to end his cruel and unusual use of the banhammer.

  •  Discussing wholesale changes to the Consitution (4+ / 0-)

    has proven to be nothing more than a parlor game. Amusing but hardly related to any practical notion.

    For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

    by Anne Elk on Tue Jan 22, 2013 at 08:40:49 PM PST

    •  Why? Becuase you know what happened a long (1+ / 0-)
      Recommended by:
      Kevskos

      time ago. Or because you have some special knowledge about what wonderful things we might accomplish if we actually tried?

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Tue Jan 22, 2013 at 09:41:51 PM PST

      [ Parent ]

      •  Because of experience. (1+ / 0-)
        Recommended by:
        Villanova Rhodes

        Changes to the Constitution are the result of an odd confluence of forces. If even something like the ERA couldn't pass, what hope do you think something as sweeping as a Constitutional Convention would have? I will tell you: zero. It doesn't take any special knowledge to see that. Even a single change in today's political climate would be DOA, no matter how reasonable it might be.  

        For if there is a sin against life, it consists perhaps not so much in despairing of life as in hoping for another life and in eluding the implacable grandeur of this life. - Albert Camus

        by Anne Elk on Wed Jan 23, 2013 at 09:36:54 AM PST

        [ Parent ]

  •  There are serious proposals out there (3+ / 0-)
    Recommended by:
    begone, DEMonrat ankle biter, Pluto

    for Supreme Court structural & operational reform. Yours isn't one of them, and it would need considerably more elaboration before it could be discussed intelligently. I would want that discussion before the unlikely convention you suggest, because it's a cannon aimed at a gnat as curently described, and stands to do enormous harm.  

    If Kennedy wants a J.D., all he has to do is ask his alma mater for one. They are available to any of Harvard's LLB recipients -- i.e., grads before 1969 or so -- retroactively, on request. Perhaps he's never asked because he knows the J.D. is not a superior credential.

    And if I had to pick a "Justice from the Vatican" -- which I wouldn't because bigotry disgusts me -- he'd be no higher than number 4 on my list.

    That aside, can you explain why Kennedy should resign to allow a Democratic president to create a 5-4 split in the other direction? That's quite a remarkable idea. I'd be happy to see it, of course, but I hardly think he's unreasonable or unethical not to do so. I'm open to convincing.

    •  Interesting about the serious proposals. (2+ / 0-)
      Recommended by:
      Villanova Rhodes, Kevskos

      I've looked at the make-up of the world's high courts -- almost all of course, formed under modern constitutions

      One striking difference I've noticed was the length of time served. Lifetime appointments are not that common. And, of course, the number of justices vary quite a bit.

      What sort of proposals are out there?



      Denial is a drug.

      by Pluto on Tue Jan 22, 2013 at 09:46:06 PM PST

      [ Parent ]

      •  For some links to start, (2+ / 0-)
        Recommended by:
        elmo, Pluto

        see generally: Scotusblog on SC term limits. That was back in 2007 and I haven't searched for more recent discussions there or in Volokh's blog, but I expect they exist.

        For a pretty comprehensive look at the structural issues -- primarily the problems associated with what they delicately call "superannuation" -- Roger Cramton and Paul Carrington's book cited there: Cramton & Carrington collects the major schools of thought. Not everyone agrees on the nature of the problem, of course, and even those who do agree differ on what it would take to fix.

        Aside from general proposals that would amend the constitution to eliminate life tenure & set term limits for federal judges overall, the most considered proposals wind up (eventually) with 18-year terms for Supreme Court justices, with a justice appointed every two years or so. At the end of their terms, justices would rotate off the bench to a senior justice status, with the most recent departures available to substitute for justices who recuse themselves.

        Carrington et al. believe this can be done by statute, because the justices who rotate off keep their life tenure, continuing to serve if they wish on lower federal courts. They sketch out a proposed statute, summarized here, among other places: SCt Renewal Act.

        Others, notably Steven Calabresi and Jim Lindgren, aim for similar terms but maintain that a constitutional amendment would be required. (Perhaps unfortunately, their version of the plan was picked up by Rick Perry and got some attention during the campaign. Hendrik Hertzberg wrote something about it in the New Yorker, about a year ago IIRC. But the idea has been around a while.) Along with their chapter in the C&C book, you can find variations on their views if you just Google their names and "supreme court."

        Our own Mets102 subscribes to the view that an amendment would be required, as seen in his diary last year: Link. As my interchange with him in that diary suggests, I lean toward the Carrington side on that question, but I'll confess I still haven't done the necessary research to reach a firm conclusion.

        On the other hand, I'm less convinced than I used to be that term limits of any kind are a good idea, in part based on writings of Ward Farnsworth, who raises some legitimate concerns in: The Ideological Stakes of Eliminating Life Tenure (PDF) and his law review article on the larger question, cited in that piece.

        Also, while Calabresi is very smart, he is certainly not looking to promote liberal or progressive viewpoints, so I would look under all rocks to find out what he thinks the substantive results of term limits would be & why. Carrington is much more of a good government type when it comes to court structure. I don't know his politics (I'd guess old-style Republican) but the people who signed onto his proposal included some pretty liberal voices.

        There have been other kinds of proposals such as changing the function of the court by changing its jurisdiction, approximating courts in some other countries. (I've forgotten a lot of my comparative studies but you probably have recent knowledge of the differences between our system and, e.g., an exclusively "constitutional" court.) And just last year Jonathan Turley made a splash suggesting a move like the diarist appears to favor, although his magic number was 19, not 21. We kicked that around in SeaTurtle's diary (in which I got cranky, I'm afraid), here: Link.

        My bottom line on the "increase the size" proposals is that they further almost no desirable goal except allowing the court to take more cases, expanding its error correction function (not that everyone agrees that's desirable). And they do so at the expense of pretty much all the other cherished aspects of an admittedly imperfect system, most importantly the law-declaring function, which leads to relative stability and predictability, and the willingness of the public and lower courts to accept and abide by the "infallible only because final" rulings until democratic processes change the law. Courts that sit in panels are just completely different entities. An en banc Supreme Court has served us well -- even if individual justices have not and even if we decide that term limits are a good idea -- and I would want to see a good reason for changing that aspect of it. But that's probably more than you were asking...

        •  None of this is more than I am asking (1+ / 0-)
          Recommended by:
          Villanova Rhodes

          ...and I thank you for the time you spent on your considerable reply. I have not read all the links and I truly appreciate these references to review.

          My interest in the matter is somewhat tangential and its foundation lies in the basic flaws in the constitution itself, which would continue the wobble of the court's role regardless of any structural changes.

          A couple of comments:

          Ginsburg, along with so many world constitution watchers, regard the ancient-by-global-standards US constitution as "entrenched." That is, amending it in any way is no longer politically possible. It will continue to slip-slide down through history, becoming more and more remote and useless in a rapidly evolving world.

          Among the world's high courts, decisions out of the US Supreme Court are rarely cited anymore. They are based on obsolete notions, including the most recent health reform/commerce issue. The Heller decision discussed here lately is another example of pointlessness by global standards. It is more reminiscent of a reinforcing body for the oaths of the Cosa Nostra than a problem-solving body for the 21st century. I am speaking post-nationally, of course. The point I am making is about the growing irrelevance of the SCOTUS on the world stage. This does not seem to alarm anyone but me. Probably because it is a constitutional issue rather than a court issue, and thus too overwhelming.

          Finally, why don't you diary your comment? The more often the discussion is had, the more people will be mentally prepared for the inevitable constitutional crisis the nation will be facing.



          Denial is a drug.

          by Pluto on Wed Jan 23, 2013 at 01:29:20 PM PST

          [ Parent ]

          •  Very interesting perspective. (1+ / 0-)
            Recommended by:
            Pluto

            We hear so much gnashing of teeth over SCOTUS citing foreign courts but almost nothing about the flip side of that and what it might mean.

            I'll consider diarying -- I have not done that before, but it's a topic that isn't especially time sensitive and if I can get a good block of time to work on it, it could be interesting. Thanks for the suggestion.

    •  I note that you can't address the question of (1+ / 0-)
      Recommended by:
      Kevskos

      Kennedy misusing his inordinate, and, really, both unjustified and unjustifiable "leverage" more for self aggrandizement than in the national interest.

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Tue Jan 22, 2013 at 09:46:33 PM PST

      [ Parent ]

      •  I don't address it because I disagree with (3+ / 0-)
        Recommended by:
        skohayes, elmo, The Baculum King

        your premise, for which you offer no evidence.

        I don't need to agree with your premise to comment on the issues in your diary that I do address. Meanwhile, on the subject of noting what's unaddressed:

        can you explain why Kennedy should resign to allow a Democratic president to create a 5-4 split in the other direction?
        I thought that could be an interesting discussion, but if it's based on the idea that Justice Kennedy is engaging in wrongdoing merely by being a swing vote, probably not that interesting after all.
    •  I just re read this. Did you really say that you (1+ / 0-)
      Recommended by:
      Kevskos

      can't favor a Con-Con until and unless we first discuss it and arrive at what it would conclude?

      And then you posit yourself as some sort of a constitutional scholar?

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Tue Jan 22, 2013 at 09:59:27 PM PST

      [ Parent ]

  •  Dare I mention Jail 4 Judges (1+ / 0-)
    Recommended by:
    oldpotsmuggler

    I liked the direct Democracy component of this idea.  You have 50 people grand juries of random citizens whom anyone can petition to indict a government official who is guilty of a crime.  If an indictment is handed down, then you another 50 person jury is convened in a trial.  This approach is only used when other approaches are exhausted and it's paid for out of government officials salaries.  

    A person making a frivolous indictment can be penalized.  The way it was brought down in North Dakota also suggested to me that it had the plutocrats worried.

    •  I think that is just about the worst idea (3+ / 0-)

      I've ever heard in my life.

      Think about it. Justice Roberts would have been indicted immediately over his ACA opinion, lickety split, frivolous indictment penalty be damned. Ditto any justice who fails to rule in a wingnut manner on abortion rights, gay marriage, etc.

      •  Why would 50 randomly selected jurors to something (0+ / 0-)

        like that?  Polls show that the majority support ACA especially when informed about what it actually is which would happen in a Grand Jury Investigation.  Majority don't support abortion do support gay marriage so it doesn't seem to me it's likely that any of these things would occur and since 80% say they believe Citizen's United was a corrupt decision he would be out on his ear for that already.

    •  If and when a Con-Con is held, out of a broad (0+ / 0-)

      variety of thoughts will a new consensus be developed and presented to the people for approval.

      Nothing even remotely troublesome in that that I can see.

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Wed Jan 23, 2013 at 08:08:07 AM PST

      [ Parent ]

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