Court packing is not “fair play”; term limits are though
These days, I see a lot of Liberals gnashing teeth about the fact that Trump will be getting his second Supreme Court justice in less than two years. I get it. And I agree completely with all the criticisms that have been written: (1) that Mitch McConnell “stole” the first seat from President Obama, (2) that Republican Senators failed in their enumerated Constitutional duties to “advise and consent,” (3) that Merrick Garland should be on the court, and so on.
It’s frustrating to know that there were not enough people in the electorate who took seriously Trump’s question, “What do you have to lose?” Clearly, it was a lot--including voting rights, workers’ rights, abortion rights, the right to access healthcare, the right to clean air/water/food, and the right for fair treatment in the courts when facing off against corporations.
In response to the announcement of Brett Kavanaugh as Justice Kennedy’s replacement, I see a lot of people calling for court packing. I’ve seen articles on DailyKos (here, here, and here), on The Huffington Post, on The Washington Post, on Vox, and on Jacobin.
But court packing is not the answer to our problems. In fact, it’s a terrible position to take publicly.
First, court packing is tribal. It will only energize the liberal base (which, I admit, is necessary to elect Democrats), but it will not fix the problem for the country long term.
Second, because court packing is tribal, it will not excite the average American who does not pay attention to politics. Think about what happened to the attempt to recall Scott Walker in Wisconsin…. Even though Walker was a terrible governor and was doing real harm to the people of Wisconsin, the average person there simply would not get behind the recall movement. The voters’ argument was simple: “Elections have consequences, so do a better job to win elections rather than trying to change the rules after you lose.”
Court packing is changing the rules after we lose...and it will not garner broad support with most Americans.
Third, we all know that Republicans lie and cheat; that is the only way they can win elections and stay in power. So why promote an idea that could further entrench their power? Advocating for court packing actually gives Republicans new ideas of how to manipulate the system to their own benefit.
Rather than advocating for court packing, what Democrats should do is advocate for term limits for all federal judges, including Supreme Court justices.
No American honestly believes that someone should receive a political appointment for life. Just look at what Conservatives were saying when Elena Kagan was nominated for the Supreme Court under President Obama.
There was a special emphasis on the potential length of a Kagan term on the court, which, as the youth in attendance pointed out, could mean she'd be ruling with her socialism showing well into the protesters' middle age.
"If she serves as long as Justice Stevens, who she's replacing, she will be on the Court for 40 years," Carrie Severino of the right-leaning legal group Judicial Crisis Network told the gathered protesters. "So this is a decision that will have more long-lasting impact than any presidential election, than any senatorial election, probably even than the oil spill we're dealing with right now."
Source: “Young Conservatives Rage Against the D.C. Machine at Anti-Kagan Rally”
The fact that it has been revealed that Justice Kennedy was given the opportunity to hand-pick his successor presents a perfect way to frame the issue—America should not be ruled by a permanent ruling class. This anti-dynasty sentiment actually did drive some voters toward Trump at different stages of the primary and general election calendar (i.e., “Anyone but another Bush or Clinton”).
So how do we do it?
First, there needs to be a cohesive message that 40-year appointments represent a permanent ruling class, and they need to go! They are unfair and un-American.
Democrats should start polling on this issue, asking about term limits for federal judges and Supreme Court justices. I propose that all presidential appointments need to be for no more than 10 years so as to prevent a permanent ruling class.
What about already serving judges and justices?
In order to ensure that no one president can control the fate of the entire judiciary, we need to construct a way of determining the number of years maximum an already serving judge/justice has remaining on his/her term. We certainly could not say that all existing judges/justices would expire in precisely 10 years, or the entire judiciary would fall into the hands of only one president.
To do this fairly, we need a mechanism that Americans across the country absolutely trust and recognize “as fair as it could be.”
The answer can be found in the MegaMillions lottery system and the NBA lottery system, both of which use ping pong balls held in a transparent container to create a fair system of selecting random numbers.
If we can take this much care of ping pong balls for numbers for the lottery, then we can do the same for term limits for serving judges and justices. My argument is that if Americans trust the ping pong ball system for millions of dollars on the lottery tickets and for deciding the fate of their favorite NBA team, then they will trust it for deciding how many years remain on a judges’/justices’ term before those individuals must step down.
For each currently serving judge or justice, the bipartisan commission would announce the judge/justice name and pull one ping pong ball bearing the numbers between 1 and 10, representing the number of years that remain on the term of a serving judge/justice. After each name, the ping pong ball would be replaced in full view of the audience and a new name announced for the subsequent draw.
While no one will be 100% pleased with the outcome of those draws, Americans overwhelmingly will recognize it as a fair and transparent system. And that’s important.
Court packing is not “fair play”; term limits are though.
Dems need to stop talking about court packing. It’s extremely unpopular and just gives Republicans more ideas as to how to screw over America.
Rather Dems need to run on a platform that everyone will support. Term limits for judges and justices will bring people to the polls, and will help the country long-term at the same time.
