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Old and In the Way Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 09:49 AM
Original message
Can the SCOTUS be expanded?
Let's say we take back Congress with a vengence in 2006. Let's futher postulate that the mood of this country demands a more liberal, progressive interpretation of the Constitution.

Seeing that the Republicans have been "reinventing" government and doing their fair share of creating precedents, why couldn't a Democratic Congress majority expand SCOTUS to get more balance back?

Would this require a Constitutional Amendment?
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DCWageSlave Donating Member (12 posts) Send PM | Profile | Ignore Wed Jul-20-05 09:54 AM
Response to Original message
1. See FDR
FDR tried to expand SCOTUS to 15. He failed, as it was seen as an attempt to pack the court with partisans. An amendment would be needed, and the Democratic party would need a lot more strength in either Congress, or alternatively to control 3/4 of state legislatures to give that a chance. Don't think you'd want to propose that while a Republican is in office, since if this passed now Bush would make the nominations.
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meegbear Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 09:56 AM
Response to Reply #1
4. You are correct ...
:party: WELCOME ABOARD!! :party:
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Wabbajack Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 09:58 AM
Response to Reply #1
5. An Amendment is NOT NEEDED
The # of justices is set by law.

After the civil war the pukes in congress shrunk the court so Andrew Johnson would not get to appoint anyone. When he left office they raised it up again.
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Idioteque Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:12 PM
Response to Reply #5
12. The Constitution states that the # of Justices is set by Congress...
...does that mean that it can be changed with a joint resolution and not have to be signed into law?
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The Jacobin Donating Member (820 posts) Send PM | Profile | Ignore Wed Jul-20-05 09:54 AM
Response to Original message
2. The number of judges is not stated in the Constitution
Edited on Wed Jul-20-05 09:55 AM by The Jacobin
It is set by the law authorizing the creation of courts by the power of the Constitution.

FDR threatened to do exactly that in the Great Depression. See: http://www.hpol.org/fdr/chat/
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meegbear Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 09:55 AM
Response to Original message
3. FDR tried to do that during his administration
Here's a link about it. You can find more info, but there can be a lot of vitrol in some of them.

http://gummibear.netfirms.com/HTML/courtpacking.html
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oneighty Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 10:06 AM
Response to Original message
6. I do not believe
the court has a fixed membership. I believe the President and Senate could increase or decrease the numbers to suit.

Yes Roosevelt tried it and lost. But it can be done it appears. Odd that one of the judges a 'Roberts' always deciding against Roosevelt's 'New Deal' suddenly switched sides. A precursor of things to come? One never knows.

There is no constitutional requirement that Justices be lawyers either.

180
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Dr.Phool Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 10:17 AM
Response to Original message
7. I think a better remedy would be
Instead of an unlimited (lifetime) appointment, cutting it down to a 9 year appointment, with the most senior judge being the first to go. The Justice would have the right to be re-appointed to a new 9 year term.

Why get stuck with a Thomas or a Scalia for a lifetime?
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AlGore-08.com Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 10:52 AM
Response to Reply #7
8. The flip side is that you're deprived of decades from good justices
IMNSHO legislative term limits should be viewed as a cautionary model. We have legislative term limits out here in Cali and they've deprived us of a lot of good, progressive legislators like Tom Hayden, who were term limited out of office to be replaced by lesser lights. The new crew know that they have to find a new job in a set amount of time and are even more focused on elections on fund raising than the pre-term limit crowd was.

What are Supreme Court Justices going to move on to if we term limit them? Lobbyist? Elective office? How many of them are going to see the Supreme Court as a political stepping stone - - really start legislating from the bench, in order to boost their future image as a "Law and Order" candidate or a "Traditional Values" candidate?

Also, term limits for Supreme Court Justices is the same kind of "throw the baby out with the bathwater" solution that the nuclear option is - - we will not always be in the minority. Someday we will control the nominating process, and we shouldn't kneecap ourselves then to kneecap the GOP now.

Imagine that the Dems win back the Senate majority in 2006 (possible although not a lock) and either Smirk is forced to submit a Senate candidate they want. Or imagine that the confirmation hearings drag out until after the 2008 election is over, then a Democrat wins the White House (possible but far from certain). The Dem President then submits two nominees to swing the court to the left.

But back to the original topic: I also think that packing the Court would be difficult to justify, unless the Extreme Court issues a huge number of extremely unpopular opinions between now and whenever we control the nominating process again.
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Old and In the Way Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:05 PM
Response to Reply #8
10. I agree with the term limits.
Many of the Republicans who came to office in 90s campaigned on promises to honor term limits....amazing how they've conveniently forgotten about that detail. In the process, we've put more power in the hands of bureaucrats that can control the process with little or no oversight. Institutional memory is an important by-product of longevity. There's a whole lot less of that continuity in our Legislators today.

I'm more interested in maintaining balance, particularly if we see amassive seachange in the political dynamic. If the American people want a progressive agenda, I don't want regressive/conservative doctrinaires thwarting the will of the people. Seems expanding the Court to dilute the power of a shrinking minority could only be addressed through increasing the size of the court.

And another thing....increasing the court size would diminish the impact of the individual jurists on our political landscape while assuring that a broader range of opinions are considered.
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Mairead Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:14 PM
Response to Reply #8
13. Term limits need not be absolute
It could instead require that anyone standing for the Nth time have to get, say, a plurality +10% (or 15% or whatever), with subsequent re-elections requiring more and more til the individual must be unanimously re-elected.

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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Wed Jul-20-05 10:56 AM
Response to Reply #7
9. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
Stinky The Clown Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:15 PM
Response to Reply #7
14. Term limits are not a good idea
You would know with certainty when an opening is coming .... and that would influence elections. It politicizes the court too much.
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theboss Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:06 PM
Response to Original message
11. FDR tried that; it was looked upon as a brutish power grab
Which - in reality - it was.
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Mairead Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:21 PM
Response to Reply #11
15. It depends on how you look at it, I think
The 'power grab' was an attempt to get legislation past the reactionary SCOTUS of the time, which was blocking everything while the nation went down the drain--or toward socialism, which I'm sure seemed like much the same thing to Roosevelt et al. The SCOTUS was too hidebound and pro-wealthy to see the writing on the wall; eventually there would have been civil war, since if they weren't going to let even a hint of social-justice legislation get through, they clearly wouldn't have held still for a total peaceful repudiation of Capitalism. Eventually something (threats?) penetrated the heads of those numbskulls and some of them retired, breaking the logjam.
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genius Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:01 PM
Response to Original message
16. FDR treatened this and it worked like a charm. They reversed themselves
Overnight, they went from anti-New Deal to pro-New Deal.
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