The Republican Party has been accused of packing The Supreme Court to help them cement unearned political power. Some say (and I agree)that The Democrats should retaliate by increasing the number of justices on The Court and adding as many a four new ones, to tip the majority of appointees to being Democratic ones.
Now, let’s try to look at this situation from both Republican and Democratic points of view. Since The Republicans have the most justices on The Court, we will start with them.
First of all, what they allegedly did (pack The Court), did not violate any laws, or any articles, or any amendments in The US Constitution. They merely patiently bided their time and took advantage of opportunities when they arose. This is something The Democrats could have done, if only they patience and self-discipline to do so. Second, most of these justices were judges that were seen, even by those who voted against them, as being highly qualified. They were voted against, by The Democrats, mainly because The Democrats did not agree with their judicial philosophies.
For The Democratic point of view, I am going to have to put on my tin-foil hat. This is because what they see has the markings of a long-term conspiracy.
This conspiracy starts in the 1990’s, after The Democratic senate majority refused to confirm Judge Robert Bork to The Court, back in 1987.
The first part of this alleged conspiracy was to vet ever single judge they try to appoint. They did the through an organization known as The Federalist Society. Their job was to vet any potential appointee for ideological purity. Those who made the cut were to be nominated. The next part of this conspiracy was to block as many appointments by Democratic presidents as possible. So far, the number of them so blocked stands at two. The final part of the conspiracy is to use the majority in The Court they now have to further their party’s interests.
Whether or not this adds up to an actual conspiracy, or if it breaks the law, is up to interpretation. I think there is a fair argument that trying to stack the court in this fashion is totally legal. Even if it is, it is very troubling.
For instance, during the presidential election of 2000, The Court had a Republican majority. Because the election was so close, and Florida ended up having the deciding electoral votes, and even its votes for the president were too close to call, there was a perceived notion that all or at least some of its ballots needed to be hand counted. The Republican appointee dominated Court decided on hand counting only some of the ballots. And this selective hand counting found that George W. Bush won the state of Florida by about 1500 votes. He would be the next president.
As mentioned above, he would go on to appoint two new justices, both vetted by The Federalist Society. Samuel Alito replaced Justice O’Connor, and John Roberts replaced the deceased Rehnquist who was Chief Justice at the time.
About five years later, The Court went on to rule that money was free speech, in the famous Citizens United case. This was a 5 to 4 ruling, decided by all Republican appointees.
The effect of this ruling was to open the money gates for ‘issue advertising’ which, though it isn’t the same as pro or anti candidate advertising, it can have the same effect. Since most of the big campaign contributions were likely to come from the political right, and it could be dumped into to issue advertising instead of direct campaigns, it still favored the right wing point of view. And it can be dumped into them in unlimited amounts. This did not necessarily mean that Republican candidates were guaranteed to win, but it was a big help. What it also helped do was to swing some Democratic candidates more to the right. This is because now they too had to kiss some serious right wing contributor ass. They may not vote toward the right in cultural issues, such as gay marriage and abortion, but they were more likely to vote more in favor of the economic interests of the right, or to be suddenly absent when votes unfavorable to such interests came up.
Finally, in the year 2018, the Republican appointee majority of The Court ruled that the plaintiff, in a Wisconsin Gerrymandering case, had no legal standing because he didn’t live in the district in question. So, in effect, they said that Gerrymandering based on party affiliation was still legal. The argument seems a bit flimsy. It’s kind of like if you are the rider of the horse in the same battle as the one that lost its shoe (causing the battle to be lost), you have no standing, because your horse did not lose its shoe, even though you too will suffer for the cause being lost.
So now, before I take my tinfoil hat off, let me summarize the conspiracy:
Because The Court had a Republican appointee majority during the 2000 election, George W. Bush came out on top in a very close election. Because George W. Bush was president, two more Republican appointees were added to the court to replace two earlier Republican appointees, one that retired and one that died. This maintained the Republican appointee majority on The Court. Because the Republican appointee majority was maintained, the Citizens United case was decided the way it was, arguably giving The Republicans a huge advantage overall (as they usually can get the most large campaign contributions). And because of this, not only do Republicans have a better chance of winning, but Democrats are now more tempted than ever to seek out large campaign contributions themselves, effectively leaving the majority of US citizens with no real party. Finally, The Republican appointee dominated court decides not to rule on Gerrymandering, thus allowing their own party, which holds most of the state legislative seats, in most of the states, to draw congressional district lines that all but guarantee their candidates will win no matter which way the citizens vote.
Ok. I’ll take my tin-foil hat off now. It is making my scalp sweat.
None of what I summarized above proves a conspiracy. At best it lays out circumstantial evidence of one.
But I believe this hardly matters.
What does matter is how many US citizens come to believe it. Or even have suspicions of it.
Either way, the casualty is the reputation of The Court.
When enough citizens come to believe that The Court is nothing more than a de facto legislative body, filled with partisan shills, who are only there because the party that appointed them had the upper hand at the time, we can pretty much forget about the concept of rule-of-law. What we can come to expect instead is the law-of-rule, where those in power are essentially above the law. This mindset can thoroughly grease the slide from democracy to some form of authoritarian government, which The Founders of this country so feared. This authoritarian government, which The Founders called ‘tyranny’, could manifest itself from the left as well as from the right.
It would be easy to put my tin-foil hat back on right now and blame the Republican Party for this situation, but I won’t.
I’ll blame The US Constitution instead.
This is definitely an area in which it could stand a little revision. I don’t blame The Founders, because political parties did not exist when they wrote The Constitution. How were they to anticipate this sort of seemingly unprincipled maneuvering at a time when the fastest large moving object was a frightened horse?
That being said, I think it is fair to go on to say that a major flaw in how the justices are selected has been revealed. It has left an opening for one political party or the other to use the appointment process to help maneuver their way to permanent, unearned political power. I am almost certain The Founders would have objected.
But how do we fix this?
Some might argue that The Republicans vet all their appointees through one or two organizations, The Federalist Society, and the more to the point named Judicial Crises. And The Democrats do not. Is it possible to outlaw such vetting? Probably not.
OK. Suppose we take the appointment process out of The President’s hands (and also end senate confirmation). I have thought of two ways to do this:
The first is to let the people decide.
This would not be politicians running for justice positions on The Court. What the voters would decide is which party they trust to pick the next justice. This question would be on the ballot on each general election. If an opening on The Court should come up during the next two year period, which ever party got the most votes on this question would get to pick the next justice. The voters may well elect a president from a different party. Once a nominee is selected, there can be public senate and house hearings on this nominee, but the other party will not be allowed to block it. They will be allowed to try to persuade their colleagues on the other side to change their minds. The President would have no veto power over this, but would be allowed to express his or her opinion on it. This is what I call my ‘brown bag’ approach, because the voters wouldn’t know exactly who they were voting for.
The problems with this approach is that it can be carried by the passions of the day. If, for example, the voters enthusiastically choose a president, they are very likely to choose the party that nominated that president to fill the next opening on The Court. Such a choice may not be all that wise. Even so, it would still be more difficult for one party or the other to ratchet their way to permanent political power by using the Supreme Court justice appointment process. I have asked people I know what they thought of this idea.
Most didn’t like it as much as my second proposed method.
This method I call the ‘my turn, your turn’ method.
It is far easier to describe. How it would work is that whichever party got to fill the previous vacancy on The Court would not be allowed to fill the next. This would be so no matter how well that party did in the most recent election. This method would have the same house and senate hearings and be subject to the same limitations as the first method. No veto power for the other party. And no veto power for The President. If there should happen to be more than two major parties (who have seats in both The House and The Senate), the party that didn’t fill any of the previous vacancies will fill the next.
Most of the people I asked, liked this approach. It suggests a certain degree of fairness that the present method and my first suggested one doesn’t. This method all but insures that no party can ever hope to pack The Court. Not only that, but with each new appointee, the majority of The Court is likely to change. This can create what I see as a powerful incentive to pick more moderate justices. If The Democrats decide to appoint a controversial justice, The Republicans are likely to retaliate when their turn comes up. Not only that, but the justices, who have the present party appointee majority, are going to have a powerful incentive to avoid handing down questionable rulings. This is because, once the next vacancy is filled, such rulings are likely to be overturned. Handing down rulings that favor one party over the other is simply not going to be as tempting as it is under the present method. Or at least this is what I think.
I supposed others will have even better ideas than mine about a new method of filling Supreme Court justice vacancies.
But what I believe is clear now is that the present method has been proven to be fatally flawed.
Now, for the purpose of mere survival, The Democrats are going to have to add at least three new justices.