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 No.7473

File: 1603860721022.jpg (241.67 KB, 750x881, 750:881, fdr-baseball-scotus.jpg) ImgOps Exif Google

"Biden's Proposed Bipartisan Commission on Court Reform Could be a Hopeful Sign for Opponents of Court-Packing"
https://reason.com/2020/10/22/bidens-proposed-bipartisan-commission-on-court-reform-could-be-a-hopeful-sign-for-opponent-of-court-packing/
https://reason.com/2020/10/22/joe-biden-would-create-a-bipartisan-commission-to-figure-out-whether-he-should-pack-the-supreme-court/
>... this new promise to create a "national commission" seems mostly like a way to make the question go away. It's a tried and true political strategy: punt a controversial issue to a panel of supposed experts to make it look like you're doing something. As a longtime creature of the U.S. Senate—which isn't called the "world's most deliberative body" for nothing—Biden understands the value of doing nothing while looking like you might do something someday.

 No.7478

He really has no other option. Call it how you will but it's a political savvy move. Doesn't demotivate your base too hard while also not completely turning away your undecideds.

 No.7481

>>7478
Yeah. A non-committal "I'm gonna look into it" answer is really the only thing he can give right now.

If he takes office that would be the time to press him on it and make sure he does something about the Republican party's hypocrisy and lies, but I don't expect him to come out with a concrete statement on the matter before then.

 No.7483

I don't know why this is even a question. The obvious correct answer is to court-packing is "no". There's no controversy to it.

His avoidance of the question can really only mean that he thinks the right answer is "yes" but knows it's unpopular so he's just going to avoid answering the question. The "bipartisan commission" is just another way to delay answering the question.

 No.7485

>>7483
>His avoidance of the question can really only mean that he thinks the right answer is "yes" but knows it's unpopular so he's just going to avoid answering the question.
Alternatively, it could mean that he is worried that the Democratic base / far-left extremists might not bother voting if he comes out against court packing, since court packing seems popular among them.  

 No.7486

>>7483
>The obvious correct answer is to court-packing is "no".

Why? They drew first blood, not him.

 No.7487

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>>7486
>Why?
For the same reasons it was a bad idea when FDR proposed it.

 No.7488

>>7487

I wasn't here for FDR, what were the reasons?

 No.7489

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>>7488
The Supreme Court is the final check (other than the Second Amendment) on a party that takes control of both political branches.  Setting a norm of packing the court to uphold legally questionable desires of the party undermines judicial independence and increases the chance of tyranny.

See also Federalist No. 78:

>The courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.
>
>The complete independence of the courts of justice is peculiarly essential in a limited Constitution... which contains certain specified exceptions to the legislative authority... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

 No.7490

>>7489
Yeah, but the Republicans have already shown they are willing to abuse the supreme court by refusing to nominate Democratic nominations while rushing in their own so they can fill the courts with people beholden to them and that party.

If that's the case, the Supreme Court is already failing in it's task. So what reasons is there to keep following the rules if the opposition has already made it clear they will not?

 No.7491

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>>7490
> the Republicans ... fill the courts with people beholden to them and that party.
I disagree, and I predict that if you study the matter in detail, you would change your opinion.  Trump nominated textualists/originalists, but textualism/originalism a judicial philosophy, not a loyalty to the Republican party.  I know for a fact that Gorsuch and Barrett are willing to faithfully interpret the law even if it means ruling against the interests of the Republican party.  (And I highly suspect that this is true of Kavanaugh as well, but I haven't studied him as much.)  Is there any non-results-oriented reason why you prefer the judicial philosophies of Democrat-appointed justices?

>the Supreme Court is already failing in it's task.
What is your prediction for how the Supreme Court will decide the ACA challenge?  (My prediction is that will be rejected, probably on either severability or standing.)

 No.7492

>>7489
>The Supreme Court is the final check (other than the Second Amendment) on a party that takes control of both political branches.

If it's supposed to be a check on the power of other branches, maybe it shouldn't be elected purely by those other branches?

 No.7493

>>7490
As opposed to when Democrats do it, I presume?

 No.7494

Given that conservatives and Republicans have stopped having morals and have now become 'Trumpified' in order to believe that the Supreme Court should be divided into a 'Team Red' and a 'Team Blue' such that 'Team Red' is assumed to always and forever rule in favor of Trump's election results no matter what... thus, even if November's actual voting results is ambiguous or complex, a "MAGA and f**k off" ruling is demanded of the Supreme Court... well, why should the Democrats live in a magical fantasy world in which the Courts rule based on judgement, logic, and principle?

They don't.

Trump is President. Judgement? Logic? Those things got grabbed by the p*ssy and never let go.

The Trumpists want bobbleheads. Hacks. They don't care about originalism or any matter of higher idealistic ethics.

If the Founding Fathers wrote certain things in a way that a fair interpretation would be inconvenient to Trump winning in November, then those Founders can go straight to hell. It's MAGA time now. Period.

Since the conservatives and Republicans are playing this sort of hardball, well, why shouldn't the Democrats play hardball back? That's life. Sauce for the goose is sauce for the gander.

To be clear: ideally, I would like it if somebody like a Kavanaugh could be understood to rule against Trump in an election dispute to due the judge's fidelity to precedent. To put higher ethics first. However, that's not why the Trumpists put Kavanaugh into power. They want a hack. A bobblehead. That's just how it is.

 No.7495

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>>7492
>If it's supposed to be a check on the power of other branches, maybe it shouldn't be elected purely by those other branches?
How else would you appoint judges?  Popular election of judges would be a mistake because most of the population is completely clueless about how judging actually works and utterly unqualified to decide between those who are running.  State judges run for popular election in my state, and despite trying to do enough research, I never feel confident in who I should vote for.  The president has teams of advisers from the Federalist Society to help him pick a good candidate.  And a lot of Congressmen have been to law school and have an appreciation for the rule of law.

>>7494
>The Trumpists want bobbleheads. Hacks. They don't care about originalism or any matter of higher idealistic ethics.
Fortunately the Evangelicals do care about originalism (look at what happened to Harriet Miers) and they're the only part of Trump's base that really cares about judicial nominees.  So, Trump nominated principled originalists, because the Evangelicals don't want another Souter (again, look at what happened at Harriet Miers).

>'Team Red' is assumed to always and forever rule in favor of Trump's election results no matter what... thus, even if November's actual voting results is ambiguous or complex, a "MAGA and f**k off" ruling is demanded of the Supreme Court... well, why should the Democrats live in a magical fantasy world in which the Courts rule based on judgement, logic, and principle?
It is Trump who is deluded if he thinks that his appointees will rule in favor of him regardless of what the law actually demands.  Looking at the types of lawsuits have been filed so far, it does seem that textualism somewhat favors the Republicans this year so far, but that might be more of a consequence of the types of lawsuits that Democrats vis-a-vis Republicans tend to file.  I wouldn't be surprised at all if the Supreme Court makes a unanimous ruling in favor of Biden if that's what the law clearly requires.

 No.7496

>>7495

Popular election would theoretically probably just elect someone in line with the other branches anyway, if all of the elections happened at the same time.

In fact, don't Executive and Legislative branches also have simultaneous elections?  I'm not sure that's working out in our favor, either.  We vote for two of our branches at the same time, when the country is theoretically moving in one direction, and then one of those branches appoints the third, and this is supposed to create a system of checks and balances?

Perhaps the whole system needs a revision.  Something for the modern age that prevents any single party from gaining control and power and then pushing things through.

First, I propose we formally recognize parties.  Unofficially, they're already recognized, often with citizen membership.  Every party that can claim a minimum amount of membership (the details of how to claim that don't need to fit into this basic napkin of a forum post) deserves representation.  And not just trivial representation, but something resembling equal representation.  We want to avoid a tyranny of the majority, after all, which means that even a minority party should be on the same footing as the big two.  There's no reason the 5% of the country that considers themselves Green or Libertarian or Democratic Socialist should be completely ignored.  The first branch would consist of a number of delegates from each part.  Perhaps something similar to the electoral college we have now.  A minimum number per party, increased slightly but not entirely proportionally to the size of the party.  This would probably be closest to what we currently call the Legislative branch.

The second branch would be appointed by the first branch and would govern how the other branches are allowed to rule on things (like adjusting what numbers constitute a majority or how filibusters work), as well as topics that should have as much partisanship removed as possible (like foreign relations, up to and including military intervention).  This would be the equivalent of our Executive branch.  This branch would be much smaller, though perhaps not quite as small as the single dictator position we have now, and instead of being elected via close popular votes every four years, whoever's in the position would have to be agreed upon by every party within the Legislative branch.  If they can't agree?  Then it sits empty, and they don't get to pass laws.  I'm gonna ballpark that it should have at least a 75% majority to elect this one.

At this point, it would be totally okay for the Executive branch to appoint the Judicial branch, which would largely function exactly as it did before.  Though I think I'd add that the Supreme Court in this setup should be there for the purpose of altering the Constitution.  This is what the highest court in the land should be about, setting our very basic foundational laws.  The Consitution is an old document, and to reference a current topic that's potentially hitting the Supreme Court again, stuff like the ACA probably couldn't have been predicted at the time of the Constitution's writing.  We need to make a ruling on what health care should look like for our country now that it's a bit more advanced then buying essential oils from the wagon that comes through once a month.

 No.7497

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>>7496
>Though I think I'd add that the Supreme Court in this setup should be there for the purpose of altering the Constitution.
Making law is a legislative function, not a judicial function.  Lawyers don't have any special competency in determining what our fundamental values are.

>The Consitution is an old document, and to reference a current topic that's potentially hitting the Supreme Court again, stuff like the ACA probably couldn't have been predicted at the time of the Constitution's writing.
The main work of the Constitution is delegating various powers to the three branches of the federal government.  Even though modern medicine would be alien to founders, the framework of government established by the Constitution handles today's medical laws perfectly fine.

>We need to make a ruling on what health care should look like for our country now that it's a bit more advanced then buying essential oils from the wagon that comes through once a month.
In regards to "what health care should look like": that's a legislative task, and the Supreme Court has no role in answering it.  In regards to the constitutionality of the Individual Mandate, the Supreme Court was addressing a far more general question, namely, whether the power of Congress to "regulate Commerce ... among the several States" included the power to require private individuals to purchase particular types of goods/services.

 No.7498

>>7493
The Democrats have, to my knowledge, never refused to to seat a Justice chosen by a Republican president for half a year so that they could seat their own pick, using it being "an election year" to justify doing so, and then hypocritically install their own choice while an active election was already being held as quickly as they could, against the previous seat holder's dying wishes. Let me know when the Democrats have done that. Nor have they ever elected an accused sexual assailant to the supreme court and refused to allow any witnesses to to testify.

You can't whataboutism this issue when the Republicans have been the ones who have bent and broken all rules to line the supreme court with people beholden (or atleast sympathetic) to them and their ideals.

>>7491
This is rather naive of you to think, I feel. It's clear these 3 justices were chosen to help the Republicans and their agendas. Why do you think they were chosen? Why choose Kavanaugh over someone who hasn't sexually assaulted women?

 No.7499

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>>7498
>It's clear these 3 justices were chosen to help the Republicans and their agendas.
That's a very different claim than your earlier claim that the justices are beholden to the Republicans.  I agree that the textualist approach has tended to yield results that the Republicans prefer more often than the purposivist approach taken by Democrat-appointed justices.  (But this is not always the case.  E.g., Bostock v. Clayton County, Kyllo v. United States, Texas v. Johnson.)

> Why choose Kavanaugh over someone who hasn't sexually assaulted women?
(1) Sen. Feinstein sat on the allegation and didn't bring up until it was very late in the hearings.  
(2) The only evidence was testimony of events that happened decades ago.  Scientific studies have shown that human memory is not nearly as reliable as most people think.
(3) Letting the nomination get derailed by this sort of thing would set a perverse precedent that would encourage fabricated accusations in the future.
(4) Even if Kavanaugh did sexually assault when he was a drunk teenager decades ago, this has little relevance to how he would discharge his duties as a justice.

 No.7501

>>7497
>Making law is a legislative function, not a judicial function
>that's a legislative task

Yes, I'm proposing this be changed.

 No.7502

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>>7501
Well, then rather than calling it "Supreme Court", you should call it "Supreme Legislature".  And I would disagree with a doubly indirect method of altering the fundamental fabric of the Republic.  Such alterations should need to be approved either directly by the people or via only one layer of indirection (the people's elected representatives).

 No.7503

>>7502

Perhaps, sure.  My reasoning here is that the actual Legistlative branch is a bit more open to minorities, as was mentioned, and while I think minorities should have an important position in law making, they won't necessarily have a complete knowledge of law history.

This third branch, regardless of what we call it, should be one that does absolutely require a healthy background in law and law history, for the purpose of determining exactly what was meant and intended not just by our constitution but by any laws enacted since then, such that they'll be able to write down and set precedents based on this.

I would say this is most similar to what we currently call the Supreme Court, but not necessarily the same thing.

 No.7504

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>>7503
Although major Constitutional rulings get the most press, a lot of the Supreme Court's work is ordinary judicial work interpreting federal statutes.  (E.g., Liu v. Securities and Exchange Commission (2020) dealt with 15 U.S. Code §78u(d)(5).  The Court held: "A disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible under §78u(d)(5)".)  In such cases, Congress can effectively overrule the Supreme Court (but only prospectively, not retrospectively) by altering the statute at question.  And furthermore, the questions are often rather technical, and don't really involve any consideration for minorities.  What is desirable there is simply highly competent jurists.  So I'd say that we still need an institution like the Supreme Court to resolve splits between federal circuits and especially splits between state supreme courts and co-territorial federal circuits.


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