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How Democrats Could Pack the Supreme Court in 2021

Rogue Valley

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How Democrats Could Pack the Supreme Court in 2021

Their base is already calling for a radical next move. Would they do it?

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It’s January 2021. Despite a Biden victory and a newly Democratic Senate, the lame-duck Republicans have confirmed a young, conservative justice and locked in a powerful and durable 6-3 majority on the nation’s highest court. Democratic partisans will be furious at Mitch McConnell’s gaming of the system—and at the undemocratic fact that the party that lost the popular vote in six of the last seven presidential elections now controls the Supreme Court indefinitely. Frustrated and powerless to reverse history, the Democrats will reach for the one weapon in their arsenal to fix this: Packing the court with new justices. It’s true that Congress can shape the size of the court to its political desires. In 1866, with a Congress at permanent war with President Andrew Johnson, it passed the Judicial Circuits Act, which cut the size of the court from nine to seven, and barred Johnson from appointing any new justices. (After Ulysses Grant was elected president in 1868, the number was bumped back up to nine, where it has remained ever since.) Today, one of the more significant institutional voices against expanding the court is … Joe Biden. In July 2019, Biden said “we’ll live to rue that day” if the court was expanded. But that was before the coming war over RBG’s seat. If a new Democratic president and Senate are taking power just after a blatant GOP power grab in the face of the electorate’s choice, any reluctance on the part of Biden or a Senate Democrat would face the full fury of the Democratic base.

So, if Senate Republicans won’t stop McConnell from jamming a justice through the Senate, would Senate Democrats really be constrained by their prior doubts about expansion? One of the likeliest consequences of the confirmation of a “lame duck” justice is a battle royal within the Democratic ranks over just that question—hardly what a new President Biden needs, as he deals with multitrillion-dollar deficits, a still-deadly viral pandemic and lingering economic woes. But if Congress pushes through a restructuring of the court on a strictly partisan vote, giving Americans a Supreme Court that looks unlike anything they grew up with, and unlike the institution we’ve had for more than 240 years, it’s hard to imagine the country as a whole would see its decisions as legitimate. More than 80 years ago, president FDR at the peak of his political power nonetheless found his plans thwarted by members of his own party, who found the cost of tinkering with constitutional machinery too high a price to pay. If McConnell calls a lame-duck session in the face of an electoral loss to lock in a conservative court majority, however, it’s hard to imagine any such concerns staying the hands of Democrats.

In light of Mitch McConnell's stonewalling in 2016, if McConnell goes through with this vote, then the Democrats should wield their 2020 hard power to remedy the SCOTUS makeup inflicted upon us by McConnell.
 
In light of Mitch McConnell's stonewalling in 2016, if McConnell goes through with this vote, then the Democrats should wield their 2020 hard power to remedy the SCOTUS makeup inflicted upon us by McConnell.
No, they shouldn't.
 
Biden won't go for packing the courts. So Trump will get his pick, McConnell and Co will vote for them, and we'll have to deal with the consequences. Trying to court pack is a bad idea and would only start an arms race of sorts.
 
Biden won't go for packing the courts. So Trump will get his pick, McConnell and Co will vote for them, and we'll have to deal with the consequences. Trying to court pack is a bad idea and would only start an arms race of sorts.

There are ways to go about it that can avoid an 'arms race', and I'm not sure worrying about what the GOP might do in retaliation makes much sense at this point. They already do whatever they can.
 
Another alternative short of packing the supreme court would be to admit Puerto Rico and DC as states picking up 4 additional senators who would very likely be democrats... Far less intrusive on the courts (although federal court reform is sorely needed) and would make it much harder for the GOP in the long run.
 
Another alternative short of packing the supreme court would be to admit Puerto Rico and DC as states picking up 4 additional senators who would very likely be democrats... Far less intrusive on the courts (although federal court reform is sorely needed) and would make it much harder for the GOP in the long run.
I don't think that's doable. It would require Republican cooperation that would not be forthcoming. Creating 2 new SCOTUS positions would be possible without Republican support if the Democrats take the Senate.
 
I don't think that's doable. It would require Republican cooperation that would not be forthcoming. Creating 2 new SCOTUS positions would be possible without Republican support if the Democrats take the Senate.

If the senate eliminates the filibuster, what cooperation from the GOP would be needed?
 
Another alternative short of packing the supreme court would be to admit Puerto Rico and DC as states picking up 4 additional senators who would very likely be democrats... Far less intrusive on the courts (although federal court reform is sorely needed) and would make it much harder for the GOP in the long run.

Or both together.

Plus, and I'm not sure this would fly since I never really had cause to think about it before, but after doing those two they could then try to pass legislation requiring that judicial confirmations and changes to the court's size must be pass by sixty votes, not a simple majority (or 64, once DC/PR are in), ie, to take a now-eroded senate rule* and turn it into something required by statute.



_________________________
*And, you might wonder why there's a 60-vote rule in the Senate, when it just takes a straight majority in the House to pass a bill. The answer is that that's what the Founders intended. The Senate was designed to be the "cooling saucer," where the two parties were forced to work together. That 60-vote threshold ensures that in order to pass legislation, the majority party needs to get some buy-in from the minority. However, that has been eroding. Back in 2013, Democrats, who at the time controlled the Senate, were so frustrated by the slow pace of confirmation of then-President Obama's nominees that they pulled the trigger on what was known as the "nuclear option." This essentially changed the rules in the Senate and busted the 60-vote threshold down to a simple majority of 51 votes for presidential nominees only. Fast-forward to 2017, when Republicans chipped a little more away from the 60-vote requirement when they said that Supreme Court nominees would also only need 51 votes to be confirmed.

 
Biden won't go for packing the courts. So Trump will get his pick, McConnell and Co will vote for them, and we'll have to deal with the consequences. Trying to court pack is a bad idea and would only start an arms race of sorts.
Do you really think Biden will get any say in the matter? Joe will do and say whatever his people tell him to do and say.
 
Or both together.

Plus, and I'm not sure this would fly since I never really had cause to think about it before, but after doing those two they could then try to pass legislation requiring that judicial confirmations and changes to the court's size must be pass by sixty votes, not a simple majority (or 64, once DC/PR are in), ie, to take a now-eroded senate rule* and turn it into something required by statute.



_________________________
*And, you might wonder why there's a 60-vote rule in the Senate, when it just takes a straight majority in the House to pass a bill. The answer is that that's what the Founders intended. The Senate was designed to be the "cooling saucer," where the two parties were forced to work together. That 60-vote threshold ensures that in order to pass legislation, the majority party needs to get some buy-in from the minority. However, that has been eroding. Back in 2013, Democrats, who at the time controlled the Senate, were so frustrated by the slow pace of confirmation of then-President Obama's nominees that they pulled the trigger on what was known as the "nuclear option." This essentially changed the rules in the Senate and busted the 60-vote threshold down to a simple majority of 51 votes for presidential nominees only. Fast-forward to 2017, when Republicans chipped a little more away from the 60-vote requirement when they said that Supreme Court nominees would also only need 51 votes to be confirmed.


Another interesting possibility is doing something like splitting California into 2 or 3 states.... ;)
 
You kidding me?

The democrats and republicans are like Lucy holding the football for Charlie Brown. No matter what, time and time and time again, after Lucy has pulled the football out from underneath Charlie Brown as he goes to kick it, the gullible idiot always falls for her promise that keep the ball placed on the ground. And we all know how that always ends. AAUGH!!!!

Charlie_Brown_football.png



Democrats always want to take the "kind and gentler" approach preferring bi-partisanship, olive branches, and "why can't we all just get along" songs like Kumbaya.

They NEVER learn!

I wish the democrats would grow a nut sack. They have the majority of opinion on their side. Why don't they, once and for all, get aggressive? Kick those dinosaurs to the freakin' curb once and for all. **** those bastards. They ain't never going to change. They will pull the football on the democrats every time until their minority extreme political ideals delivers us all to a full blown dictatorship.
 
There are ways to go about it that can avoid an 'arms race', and I'm not sure worrying about what the GOP might do in retaliation makes much sense at this point. They already do whatever they can.
The House can’t stop a Senate vote, so they will vote and that’s that, and the sun will still come up in the morning.
 
You kidding me?

The democrats and republicans are like Lucy holding the football for Charlie Brown. No matter what, time and time and time again, after Lucy has pulled the football out from underneath Charlie Brown as he goes to kick it, the gullible idiot always falls for her promise that keep the ball placed on the ground. And we all know how that always ends. AAUGH!!!!





Democrats always want to take the "kind and gentler" approach preferring bi-partisanship, olive branches, and "why can't we all just get along" songs like Kumbaya.

They NEVER learn!

I wish the democrats would grow a nut sack. They have the majority of opinion on their side. Why don't they, once and for all, get aggressive? Kick those dinosaurs to the freakin' curb once and for all. **** those bastards. They ain't never going to change. They will pull the football on the democrats every time until their minority extreme political ideals delivers us all to a full blown dictatorship.

Seriously? Have you not paid ANY attention to what the Democrats have done to Trump on immigration? He gave them MORE than what they asked for and they still shot the deal down because he was going to get something out of it too.
 
Another alternative short of packing the supreme court would be to admit Puerto Rico and DC as states picking up 4 additional senators who would very likely be democrats... Far less intrusive on the courts (although federal court reform is sorely needed) and would make it much harder for the GOP in the long run.

I don’t see DC happening since it’s the seat of government and it looks like one or more constitutional amendments would be required. Making it a State was previously ruled unconstitutional. Not impossible, but not a simple matter either.
 
I don’t see DC happening since it’s the seat of government and it looks like one or more constitutional amendments would be required. Making it a State was previously ruled unconstitutional. Not impossible, but not a simple matter either.

What ruling said that making it a state was unconstitutional?
 
The House can’t stop a Senate vote, so they will vote and that’s that, and the sun will still come up in the morning.

The senate alone can’t expand the Supreme Court.
 
If the senate eliminates the filibuster, what cooperation from the GOP would be needed?
how are you going to eliminate it?
any motion to undo the filibuster rule can be filibustered.

it has been tried before and that is what happened.
 
how are you going to eliminate it?
any motion to undo the filibuster rule can be filibustered.

it has been tried before and that is what happened.


On April 6, 2017, the Senate reinterpreted Rule XXII to allow a majority of Senators voting, a quorum being present, to invoke cloture on nominations to the U.S. Supreme Court. Before the Senate reinterpreted the rule, ending consideration of nominations to the Supreme Court required a vote of three-fifths of Senators duly chosen and sworn (60 Senators unless there was more than one vacancy). The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee. The method used to reinterpret Senate Rule XXII is, perhaps, of as much interest as the practical effect of the ruling. The proceedings of April 6, 2017, were similar to those of November 21, 2013, when the Senate reinterpreted the cloture rule to lower the threshold for invoking cloture for all nominations except to the Supreme Court.1 Proceedings of this kind have been called “the nuclear option” because they required actions arguably at variance with established principles underlying Senate procedure.2 Specifically, in both of these cases, a simple majority of Senators took unusual and contested floor actions to limit the ability of a minority to filibuster. As a result of these two precedents, the Senate can now invoke cloture on any nomination by a majority vote. Importantly, neither the 2013 nor the 2017 precedent removed the potential need to invoke cloture on a nomination to reach a vote. The process for invoking cloture on a nomination remains the same. A cloture motion filed on a nomination receives a vote after two days of Senate session. If, on that vote, a majority of Senators voting supports cloture, the Senate will reach— after no more than 30 additional hours of consideration—a vote on the nomination, with final approval subject to a simple majority vote. This brief report explains the actions taken on April 6, 2017, by which the Senate effectively extended to Supreme Court nominations its November 2013 reinterpretation of Rule XXII. It concludes with a list of related CRS products that provide more history and context regarding the method used to reinterpret the Senate Rule, the nominations process, and cloture and filibusters.

Next question...
 
The House can’t stop a Senate vote, so they will vote and that’s that, and the sun will still come up in the morning.
There is already an arms race. With Garland, Rs declared that there are no rules. Time for Ds to get in the game.
 
There is already an arms race. With Garland, Rs declared that there are no rules. Time for Ds to get in the game.
The Garland nomination was different. You had a Democrat President and a Republican-controlled Senate. Now you have a Republican President and a Republican-controlled Senate. The US Constitution does not mention anything about when the Senate must give their "advice and consent," which means the Republican-controlled Senate can choose their own schedule.

Where the Republicans screwed up during the Garland nomination is they should have held an up or down vote before the end of the Session. They would have obviously voted to reject the nomination, but the US Constitution does require an up or down vote.

Whenever the President makes a nomination, the Senate is constitutionally obligated to vote on that nomination before the end of the Session in which the nomination was made, if possible.
 
The Garland nomination was different. You had a Democrat President and a Republican-controlled Senate. Now you have a Republican President and a Republican-controlled Senate. The US Constitution does not mention anything about when the Senate must give their "advice and consent," which means the Republican-controlled Senate can choose their own schedule.
And the constitution does not say how many justices are on the supreme court. There were civilized rules, and now there are not. Thanks for that Rs.
 
And the constitution does not say how many justices are on the supreme court. There were civilized rules, and now there are not. Thanks for that Rs.
True, it does not place a number on the Supreme Court justices. It requires both houses of Congress to make that determination, which the President may also veto if not passed with a two-thirds majority. The last time Congress considered changing the number of Supreme Court justices was in 1936, after the Supreme Court held 11 of the 15 New Deal programs to be unconstitutional. FDR asked Congress to increase the number of justices, and a Democrat-controlled Congress flat out refused. They also refused FDR's request for a mandatory retirement at age 75. As a result FDR had all nine Supreme Court justices replaced between 1937 and 1943, whether they wanted to be replaced or not.
 
True, it does not place a number on the Supreme Court justices. It requires both houses of Congress to make that determination, which the President may also veto if not passed with a two-thirds majority. The last time Congress considered changing the number of Supreme Court justices was in 1936, after the Supreme Court held 11 of the 15 New Deal programs to be unconstitutional. FDR asked Congress to increase the number of justices, and a Democrat-controlled Congress flat out refused. They also refused FDR's request for a mandatory retirement at age 75. As a result FDR had all nine Supreme Court justices replaced between 1937 and 1943, whether they wanted to be replaced or not.
There you go. So packing the court is as constitutional as refusing to consider Garland? Meanwhile, let's not pretend adherence to centuries-old texts is the real driving force here. Rs moved the goalposts; now Ds might move the goalposts; it's just what happens when government becomes a naked bid for power.
 
On April 6, 2017, the Senate reinterpreted Rule XXII to allow a majority of Senators voting, a quorum being present, to invoke cloture on nominations to the U.S. Supreme Court. Before the Senate reinterpreted the rule, ending consideration of nominations to the Supreme Court required a vote of three-fifths of Senators duly chosen and sworn (60 Senators unless there was more than one vacancy). The practical effect of the Senate action on April 6 was to reduce the level of Senate support necessary to confirm a Supreme Court nominee. The method used to reinterpret Senate Rule XXII is, perhaps, of as much interest as the practical effect of the ruling. The proceedings of April 6, 2017, were similar to those of November 21, 2013, when the Senate reinterpreted the cloture rule to lower the threshold for invoking cloture for all nominations except to the Supreme Court.1 Proceedings of this kind have been called “the nuclear option” because they required actions arguably at variance with established principles underlying Senate procedure.2 Specifically, in both of these cases, a simple majority of Senators took unusual and contested floor actions to limit the ability of a minority to filibuster. As a result of these two precedents, the Senate can now invoke cloture on any nomination by a majority vote. Importantly, neither the 2013 nor the 2017 precedent removed the potential need to invoke cloture on a nomination to reach a vote. The process for invoking cloture on a nomination remains the same. A cloture motion filed on a nomination receives a vote after two days of Senate session. If, on that vote, a majority of Senators voting supports cloture, the Senate will reach— after no more than 30 additional hours of consideration—a vote on the nomination, with final approval subject to a simple majority vote. This brief report explains the actions taken on April 6, 2017, by which the Senate effectively extended to Supreme Court nominations its November 2013 reinterpretation of Rule XXII. It concludes with a list of related CRS products that provide more history and context regarding the method used to reinterpret the Senate Rule, the nominations process, and cloture and filibusters.

Next question...
everytime they have tried to motion a rule change on the filibuster it has been filibustered. in fact there have been 3 attempts to get rid of the filibuster since 1907 when it was officially implemented. each time the motion was filibustered and died.

please look up actual history for facts not leftist wingnut sites that are based on emotion.
 
The House can’t stop a Senate vote, so they will vote and that’s that, and the sun will still come up in the morning.
Keep that in mind down the road.
 
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