This is terrifying in that it's not all that hard to imagine this happening at the federal level in coming years.
I guess it might happen if one party (let's just call them the Pinks) holds both houses of Congress. They would probably have to hold the Presidency, too. This party decides to run the country in total disregard to the other party, the established rules, and even the Constitution. Someone brings a lawsuit over something the Pinks have done. The Supreme Court hears it, and rules against the Pinks. Now, for this scenario to work, it would have to be a 9-0 ruling against the Pinks, even though some of the Supreme Court lean toward the other party (let's call them the Browns).
Possible? Yes, I suppose. But personally, I find it quite hard to imagine.
It doesn't need to be all 9 justices impeached; the point is justices being impeached en masse for largely partisan reasons. That would/could destroy the courts legitimacy and undermine the rule of law.
More likely than impeachment would be expanding the court. The Constitution doesn't say anything about the size of the Court other than it must have a Chief Justice. The number of Justices is set by legislation.
A very good case can be made for such an expansion to slow down the amount the Court can change in the short term. 9 worked fine when both parties had strong moderate factions, and so the Court would move a little more conservative under Republicans and a little more Liberal under Democrats. Now the moderate factions have diminished, especially among Republicans, and 9 doesn't provide enough hysteresis.
No, it can't, at least in terms of a normal legislated expansion, because the immediate effect would be to vastly accelerate the change in the direction of the then-dominant party.
Also, a larger court (even beyond the one-time transition) doesn't provide any more stability on average, though it does reduce the variability in the rate of change (doubling the size of the court doesn't change the percent of the court that changes, on average, each Presidential term. But it makes the standard deviation of that percentage less.)
Also, I suspect that on a significantly larger court Justices would be more likely to retire younger, because they would know that their leaving is not going to cause major changes even if they leave during the term of a President they disagree with.
In theory, maybe, it makes sense. Practically, it’s a bad idea.
This seems like a better situation for Democrats than it is currently (not having a majority at all for 30+ years).
Second, though, I'm not sure that you'd get more hysteresis. Let's say that, with a nine-member court, a two-term president is likely to get to appoint two or three justices. Now expand the court to fifteen members, as one side has suggested. Well, now a two-term president is likely to get to appoint four or five justices. I don't think that changes the hysteresis at all.
Very interesting.
Also, for context: In the 1930s Franklin Roosevelt advocated expanding the Supreme Court when it kept interfering with his New Deal plans.
As far as prompting a civil war goes, we had a minority party use filibusters for years to block most judicial appointments of the majority party from even getting considered, with the intent of holding them open until they could get a majority. That same party also held a Supreme Court seat open for a year, refusing to even hold a hearing on the nominee--a nominee that they had just told the President was someone they could approve of! (And they openly talked of holding the seat open during the entire term of the next President if that President was not of their party).
And now that the aforementioned minority party has a majority in Congress, they are rapidly filling all those seats they held open, often with young lawyers with little judicial experience, and some rated "unqualified" by the ABA, and accuse anyone who tries to actually vet the candidates of partisan obstructionism.
If that didn't get anyone up in arms, I doubt a little court packing would do so.
It seems pretty clear that the Senate has the authority to blockade nominations. By contrast, the Constitution is clear about duties and timelines elsewhere (for instance, bill vetoes).
There's lots of good reasons to leave the GOP! I'm glad you did! I just don't see this as one of them.
Bills have been not-getting-out-of-committee for a very long time prior to the McConnell blockade, and you can easily make an argument that killing things in committee is actually more harmful to transparency than what McConnell did --- whatever else you might say about the blockade, it was pretty transparent!
Blocking all Supreme Court nominations was just good tactics. It is certainly one among many decisive factors that won the GOP the White House.
They could have blocked all Supreme Court nominations while at least maintaining the appearance of doing their job by holding hearings, bringing them to a vote, and defeating them on the floor.
The whole "hearings" thing just seems like theater. Nobody on either political pole had any misconception about what was happening.
Yes.
> Wouldn't problems with how McConnell runs his majority be non-justiciable political questions?
Yes.
> If other senators object, they can oust McConnell.
Yes — but they're very aware of the power that they've given the majority leader under the Senate's rules, and they're very cognizant of Emerson's dictum: When you strike at a king, you must kill him. [0] That's why I said there'd never be the constitutionally-required 2/3 vote to expel McConnell and Grassley.
[0] https://www.goodreads.com/quotes/385864-when-you-strike-at-a...
I don't think either party is going to have enough of a majority in the Senate (two thirds) to get a conviction on an impeachment any time soon.