Hacker News Reader

Comment by ardy42 | Hacker News Reader

> Yep. And there are no more "checks and balances" because POTUS stacks the SCOTUS, and POTUS and SOTUS work hand-in-glove. The last remaining hold-out is HOROTUS, but that can flip any session.

I can't believe I'm saying this, but I'm warming up to the idea of the Democrats passing court-packing legislation for the Supreme and Appellate courts the next time they control both houses of Congress and the presidency. Especially if they can somehow establish a very strong super-majority requirement for all future judicial branch nominations that would be immune to stealth court-packing tactics like the Senate Republicans have been using.

The prior institutional restraints have broken down, and balance needs to be restored and new restraints implemented if the system is going to survive.

View on HN

Excuse my pessimism, but this won't work for the simple reason that if this were introduced, Republicans would cry foul, say it's unfair, and the Democrats would agree to back down because it's not nice to play on an unlevel playing field.

They will conveniently forget that were the tables turned, Republicans would not do the same.

Democrats removed super majority requirement for Supreme Court nominations. I believe a super majority would have acted as a check against a stacked court. There would be compromises and more moderate justices would have been considered. [1]

People take less notice of transgressions when their party is in power. As much as we might like to think there’s universal recognition of the current administration’s misuse of power there’s a lot of people who support it - “to get things done”. People just hate it when it’s not the things they want.

[1] https://www.washingtonpost.com/politics/senate-poised-to-lim...

Democrats removed the requirement for lower court nominations. Republicans removed the supreme court requirement to appoint Brett Kavanaugh, which is a seat they stole from a sitting Democratic president, even though said president nominated a moderate Republican for said seat.

It is true that the Democrats opened this can of worms, but the Republicans then taking advantage of it instead of setting a better example does not exonerate them. They're all bad actors now.

> Republicans removed the supreme court requirement to appoint Brett Kavanaugh

Actually, it was to appoint Gorsuch (who replaced Scalia's vacant seat). Kavanaugh was appointed to replace Kennedy.

Wouldn't that super-majority for the court be a risk, as a minority could easily block its workings (not influence, just block)?

> Wouldn't that super-majority for the court be a risk, as a minority could easily block its workings (not influence, just block)?

I don't think so. The idea is to force compromise by putting the threshold so far out of reach to eliminate fantasies that after the next election one party or other will be in the position not to have to compromise. That's the issue now.

The idea that a minority would try to literally destroy another branch of government for some reason seems so remote and so extreme that I'm not sure if it's worth considering. What would the political calculus be for trying to block the workings of the court system?

> I don't think so.

Actually, that is specifically the reason some supermajority rules were lifted [1]. Do you recall Merrick Garland?

The filibuster is abused similarly [2].

[1]: https://www.brookings.edu/blog/fixgov/2018/06/04/senate-obst...

[2]: https://www.brookings.edu/blog/brookings-now/2013/11/21/char...

They only moved it for federal district court nominations. Because every single nomination was prevented by the GOP from going through. Ultimately we all know that if any Democratic senators tried to keep GOP's nominees from the federal bench (including fascist bloggers and people who have never tried a case), the GOP would have done the same.

I applaud the effort and I think we need to go further and get rid of the fillibuster rules entirely.

> Democrats removed super majority requirement for Supreme Court nominations.... People take less notice of transgressions when their party is in power.

> People take less notice of transgressions when their party is in power....

I used to fault the Democrats for that (and used to consider myself more of a conservative), but on reflection I think the Republican's obdurate obstructionism is the more important fact. That's clear now that the Republican's priority now seems to be to ram through nominees when they have the power to do so (as shown by their last session, nominations over caronavirus response), and they've done such a shit job at checks and balances when it's needed now more than ever.

You mean like how FDR threatened to do that during the new deal, and then the court backed down and let all sorts of unconstitutional stuff through?

When we ended a government of enumerated powers and everything could be done at the federal level without an amendment - great things like the drug war.

FDR packed the court with his own judges when others had retired during his term. That's how he got the New Deal through, not on threats or cowing.

That will never happen. FDR's own party shit bricks when he tried to stack the Supreme Court. He got his pee-pee smacked hard.

> That will never happen. FDR's own party shit bricks when he tried to stack the Supreme Court. He got his pee-pee smacked hard.

It didn't happen then, but that doesn't mean it can't happen now. For several decades, the Republicans have played political hardball to pack the courts in their own way [1]; I doubt that was a factor nearly a century ago.

[1] bitter obstructionism to maintain vacancies until they have the power to fill them with their own picks, selected primarily for ideological reliability.

You are literally changing the definition to fit your editorializing, that's about as radical as it gets.

> You are literally changing the definition to fit your editorializing, that's about as radical as it gets.

Eh, if the definition of "court packing" is so narrow that it only covers things nearly exactly like FDR's proposal, then I don't consider it a very useful term.

If it makes you more comfortable, feel free to replace "court packing" in my comment with a term that's general enough to encompass FDR's proposal and the Republicans' recent tactics.

FDR won, the supreme court backed down and FDR was able to execute his programs.

And later he committed one of the worst civil rights violations by the federal government (the bulk of the injustices against the Indians were done by the states)

> the bulk of the injustices against the Indians were done by the states

Maybe, and maybe that means that the Japanese internment was worse then anything the federal government did to the Native Americans.

I mean, it's not like native Americans were forcibly relocated from their homes into federally designated lands for a handful of years like the Japanese... oh, wait...

Seems very relevant, I’m a fan of FDR and this is absolutely necessary to talk about.

the feds vs states thing seems like a distinction without meaning, tbh, the federal government certainly intended the states to deal with natives as they did, and there is absolutely no shortage of crimes done by the federal government itself (treaties broken, allies backstabbed, lands taken, literal genocide, fucking DAPL)

The federal government was supposed to only execute its enumerated powers, which could be expanded by passing amendments.

Instead the federal government can do anything it wants. It's why we have the drug war, DEA, huge national debt, broken medical system.

FDR got things done in spite of, not because of, his party. democrats have never been particularly good at passing progressive legislation without someone in the drivers seat.

we're about to enter a very different phase imo

That’s kind of what most pragmatic leftist fundamentally want. Instead of getting wrapped up in melodramatic leftist emotional narratives, a lot of us really just want to push the left wing into the courts and be done with the national political mess.

Reply on news.ycombinator.com