Reform Will Save The SCOTUS, Not Destroy It

As far as I’m concerned, the die is now cast. Now that Mitt Romney has reverted to that scared, piss-your-pants little boy that crawled across a stage to accept Trump’s blessing, there is nothing left to do.

If the Democrats win back the Senate and the White House, Chuck Schumer’s first non negotiable order of business must be to finally scuttle the filibuster rule. That’s not vengeance, it’s necessity. If the voters give the Democrats the keys to the house and car, along with their wallets in November, they are going to expect action, and they’ll want it most riki-tik. A Minority Leader McConnell with the filibuster intact will stall Biden’s entire agenda, just like he did with Obama. It has to go.

Once that is done, then it’s on to court reform. Right now both Biden and Schumer are playing coy about the idea, and I’m fine with that. After all, Biden’s pitch is bringing people together, and court reform could be seen as petty revenge. But if Biden actually believes that he can win over any of those rock headed Trumpies remaining in the Senate if there’s a filibuster, he’s fooling himself.

Court reform is not an optional exercise, it’s mandatory. The Democrats have spent four long years now whining incessantly about the base treachery of Bitch McConnell stealing the Garland seat, and now they’re winding it up into high gear about a second stolen seat by McConnell and the GOP. If the Democrats find themselves in the position to right that wrong, and do nothing about it, even their own supporters won’t listen to them anymore. Sometimes you just have to suck it up, put your big boy pants on, and smack the bully in the snoot. And if the Democrats want to be taken seriously, this is one of these moments, because this seat is what is going to help to drive people to the polls.

Right now, the biggest whine about reforming the Supreme Court is that it would turn into a purely partisan exercise, and remove any public trust in the institution. Bullshit. It might even take a few years to get there, but done properly. reforming the court could be its salvation away from any thoughts of purely partisan politics playing a part in the court in the future.

Here’s the current favorite temper tantrum about court reform. The Democrats increase the size of the court to 13 to give them the edge back. The next Republican with a Senate majority jacks that up to 17. Then in short enough order it’s on to 21, then 25, and then 29! And what have you got?

I’ll tell you what you’ve got. As lawyer and MSNBC contributor Elie Mystal pointed out yesterday, what you have is the US 9th Circuit Court of Appeals. There are 29 judges on the 9th circuit court of appeals. When a case comes before it, three judge’s names are selected by blind lot, and they hear the case. They rotate through the pool case by case. And the only person you hear bitching about the politicization of the 9th circuit court is Donald Trump.

Ladies and gentlemen, this is how you take the partisan politics out of the Supreme Court. Y’all want justice to be blind? How about having the nine justices hearing a case being drawn by blind lot? You can’t get much more fair and equitable than that. This would also tend to dampen the enthusiasm on either side to nominate far right or left judges, since their probable influence on any single decision would be muted, and they may not get drawn for a particular case where their bias could come into play.

If they were serious about it, this could be accomplished in Biden’s first term. After all, McConnell has already rammed through more than 220 lower court judges, as well as soon to be three Supreme Court picks. Let’s just stick with a 27 member roster for the court. On inauguration day, the makeup of the court will be 6-3 conservative. Penalize McConnell and the GOP one seat for their treachery. That would mean that the GOP would get to pick 6 new justices, and the Democrats 11, making the final court lean 14-13 liberal. Except that won’t really matter so much anymore, since there is no way of knowing the ideological makeup of which 9 justices will be called to hear any particular case.

Let the nomination process play out in the normal way, with the new caveat that a nominee for any federal bench seat must be approved by the American Bar Association as qualified. Alternate the nomination process between the parties, beginning with the Democrats, and you can begin the pool selection process either immediately, or once the confirmed total on the court is 14, adding the new justices as they are confirmed.

I know, I know, it sounds radical. But hell, ain’t we supposed to be a bunch of radical lefties? The biggest complaint about the Supreme Court for decades is that it has become politicized by increasingly radical ideological picks on both sides. The easiest way to defuse that is to create a large enough pool of justices so that the same 9 aren’t hearing every case, and assuring that by making the composition of each court hearing a case different. Tell me. This works like a charm on the appellate court, why should the Supreme Court be any different?