The Court Question
October 29, 2019 8:25 AM   Subscribe

“The changes that the Senate Judiciary Committee have made has created a rubber stamp for nominees to sail through,” Buchert said. “Nominee after nominee is either unqualified, or hiding their writings from the committee, or they’ve got clear views on LGBT people that show they aren’t going to provide fair and impartial justice.” How Trump fucked the courts for a generation (Outline) “ In the face of an enemy Supreme Court, the only option is for progressives to begin work on a long-term plan to recast the role of fundamental law in our society for the sake of majority rule—disempowering the courts and angling, when they can, to redo our undemocratic constitution itself.” Resisting the Juristocracy (Boston Review) How Democrats Can Insulate New Laws From a Hostile Supreme Court (American Prospect)
posted by The Whelk (29 comments total) 39 users marked this as a favorite
 
How do you stay sane, The Whelk. Your posts are so informative about how fucked we all are. I am thankful for them.
posted by 41swans at 8:40 AM on October 29, 2019 [22 favorites]


The fundamental solution to this travesty is to win back the U.S. Senate. I am supporting Flip the West, and there are many other groups that are also laser-focused on winning the key swing Senate seats.
posted by PhineasGage at 9:07 AM on October 29, 2019 [11 favorites]


Thank you so much for this post. During my many sleepless nights since Trump took office, I've wondered how we can weaken or circumvent the Supreme Court's control over our democracy and now I have a place to start learning.
posted by SA456 at 9:12 AM on October 29, 2019


Disempowering the courts: what could possibly go wrong?

I am not convinced that unbalancing the branches of government because of present-day politics is a quality long-term solution. Making laws more indestructible is a good idea, as long as those laws are not harmful. Defeating voter suppression and disenfranchisement, wrangling disinformation factories like Facebook, making sure we have an educated & healthy populace - these are the keys to a high-functioning democracy.
posted by grumpybear69 at 9:20 AM on October 29, 2019 [17 favorites]


The fundamental solution to this travesty is to win back the U.S. Senate. I am supporting Flip the West, and there are many other groups that are also laser-focused on winning the key swing Senate seats.

Yes; it was a corrupt, partisan Senate that made the Court what it is now.
posted by The Underpants Monster at 9:42 AM on October 29, 2019


I am not convinced that unbalancing the branches of government because of present-day politics is a quality long-term solution.

The problem is that the Trump administration's court appointments are not present-day politics. Most of these are judges who will remain in their seats for 40-50 years. That's why they're willing to confirm unqualified nominees; they're unqualified because they're mid-30s ideologues who haven't built up the courtroom experience a judge is supposed to have, and all the GOP cares about is the "mid-30s" part combined with lifetime tenure.
posted by Holy Zarquon's Singing Fish at 9:42 AM on October 29, 2019 [17 favorites]


I know that investigation / impeachment of judges has historically been a very steep climb, but I've been thinking a great deal about how the process of removing these judges might be undertaken in an open, fair and democratic way… because it's very clear that many of them have been rushed to the bench unqualified and / or with closets filled with skeletons.

Impeaching Brett Kavanaugh seems to be an obvious place to start, but it needs to go much further: something like a top-to-bottom Federal Judicial Competency review panel coupled with sweeping criminal reform might be the way to go. I would hope that many appointees, like Trump's sister, might feel it more prudent to resign rather than facing public and legal scrutiny.
posted by Bora Horza Gobuchul at 9:43 AM on October 29, 2019 [26 favorites]


Defeating voter suppression and disenfranchisement

Do you know a common strategy for this? Challenging gerrymandering through the courts.

Do you know that the Florida felon re-enfranchisement law, clearly passed, unambiguous, has nonetheless has had to be enforced through the courts because of the crazy obstacles thrown up by the present state administration?

The number of people who do not seem to have a basic grip on the function of the courts in our society never ceases to amaze me.

In conclusion: thanks, Bernie bros, thanks, "there's nothing to pick between the two sides" types, thanks, "but her emails" types, thanks, "he won't do what he promised what he'd do" types, thanks, "surely institutional safeguards will prevent his doing permanent harm to our system of government" types, thanks, "I'd vote for some woman, just not Hillary" types. We're going to have these judges for forty years. Of course, most of you are white boys, so you'll probably be fine. Just not everybody else.
posted by praemunire at 9:49 AM on October 29, 2019 [36 favorites]


FYI - Trump’s sister resigned when an ethics inquiry was launched regarding possible tax fraud vis a vis her inheritance from Fred Trump.
posted by Big Al 8000 at 9:54 AM on October 29, 2019 [6 favorites]


The person to blame here is McConnell, pretty clearly. He decided not to give Merrick Garland a hearing, further partisanising (?) an already partisan process.

Of course getting rid of McConnell, even if it is possible, doesn't fix the stain left behind.
posted by nat at 10:00 AM on October 29, 2019 [4 favorites]


[Quick note, it's not only white boys who support Bernie etc -- we have a number of women of color or other marginalized members who've said this is pretty dismissive of their political existence, so please just bear them in mind. Thanks.]
posted by LobsterMitten (staff) at 10:13 AM on October 29, 2019 [19 favorites]


Remember: There are state court systems as well; Trump does not appoint judges to those courts. On many important issues--e.g., criminal justice--they can have greater impact than federal courts. For that matter, it's extremely important for progressives to seek control of state and local governments more generally.
posted by mikeand1 at 10:28 AM on October 29, 2019 [6 favorites]


I am not convinced that unbalancing the branches of government because of present-day politics is a quality long-term solution.

I would argue that the branches of government have already been unbalanced. The executive branch proves every day that it's beholden to nothing and no one and has a loud contingent arguing that the president cannot be restrained by the legislature, constitution, or any sort of law. They're refusing to respond to Congressional subpoenas and no one seems to have any sort of response other than shrugging. The judicial branch is made up of similarly unaccountable ciphers who sit for life and act unilaterally, largely in support of blatantly political ends. That's 2 of the branches that have virtually no checks as it stands, and we see now what the consequences of a disempowered legislature are, as they struggle to keep up with the executive's nakedly illegal actions and sit under constant threat of having any action suddenly undone by a judiciary whose composition is set for the next 20 years at a minimum unless something is done.
posted by Copronymus at 10:33 AM on October 29, 2019 [9 favorites]


Part of the genius of American Democracy (in it's terribly flawed, classist/racist/militaristic/individualistic/etc. structure) is that it still retains a number of checks and balances. These "checks and balances" are a double edged sword, but I ultimately believe (naively?) that they're one of the only things keeping this country from sliding into full-on autocratic military dictatorship – though we're pretty close. The only branch of government that should be weakened at this point IMO is the executive.
posted by nikoniko at 10:38 AM on October 29, 2019 [4 favorites]


They're refusing to respond to Congressional subpoenas and no one seems to have any sort of response other than shrugging.

That's not a problem of unbalanced powers, that's a problem of political will. There's things you can do to restrain a imperial presidency, but you have to be willing to do the right thing regardless of the personal consequence. Which is also a problem of a disengaged populace. Which is a problem of education.

You can't just skip to the end and throw around fixes - that's how we got in this state in the first place. You need to go back to the beginning and build a solid base to create on.
posted by corb at 10:39 AM on October 29, 2019 [6 favorites]


If this bothers you–and it should–go and register voters. Print the forms, stuff them in envelopes, carry them with you, and ask The Question: Are you registered to vote? This simple act CRUSHES DESPAIR. Don't wait for the local party to get involved, don't ask for help. Do it yourself. I live in a VERY red state. But if only 20% of Dems in my state registered a couple of voters each, we'd have a lead in registrations. If the Independents did the same we would have a COMMANDING lead in regs. I'm willing to be it's much the same in your state. Example: Texas. Ruby red, right? The number of legal, eligible Hispanic voters in TX is significantly larger than the margin of victory in the last few Presidential elections. And that's just the Hispanic voters! Progressive positions are popular everywhere, not just in blue states, but a lot of our people have given up on voting. Go find our people, and convince them that we desperately need their help. We can change this shit, but it takes people registering and voting (it's almost impossible to vote if you're not registered).

Almost every fire ever kindled started with a tiny spark. This fire will be the same, and you can start it yourself. You be the spark in your community!
posted by ivanthenotsoterrible at 10:42 AM on October 29, 2019 [14 favorites]


In my opinion, the only way in which the judiciary is currently unbalanced in its power is in the ability of judges to render partisan decisions without consequence. To address this, judicial impeachment is going to have to be normalized to address federal judges who refuse to render impartial judgments. If and when the current executive-branch-dominated phase of this political crisis is over, the Democrats in the legislative branch need to make it clear that the political biases that the partisan Republican judges nominated by the Federalist Society are not going to be tolerated, and trying to circumvent the legislature in the courts is impeachable.

Impeaching Brett Kavanaugh seems to be an obvious place to start

I don't know. Maybe, but maybe it would be better to start with less high-profile federal judges who are similarly partisan, in order to begin laying a groundwork precedent and normalization for this as a necessary and valid check on the judiciary by the legislature.
posted by biogeo at 10:44 AM on October 29, 2019 [4 favorites]


I know that investigation / impeachment of judges has historically been a very steep climb

But looking at past impeachment investigations of U.S. federal judges (Wikipedia), it's clear that there's an extensive history of impeachment in the U.S., albeit with much less national visibility and focus. It's not easy, but it's not exactly a rarity. Sometimes, the threat of impeachment is indeed enough to get people, like alcoholic wife-beater Mark Fuller (Wikipedia).
posted by filthy light thief at 11:11 AM on October 29, 2019 [2 favorites]


To address this, judicial impeachment is going to have to be normalized to address federal judges who refuse to render impartial judgments.

So what principle do you suggest that would limit impeachment for having the wrong opinions that would not apply to liberal judges when wielded by Republicans in the future?
posted by dragoon at 11:22 AM on October 29, 2019 [5 favorites]


[Sorry, I certainly did not mean to imply that all supporters of Sanders are white men. I myself voted for him in the 2016 primary. For me, "Bernie bros" refers to a specific subset of his supporters who, most relevantly for this conversation, refuse to support and even attack any other Democratic nominee.]
posted by praemunire at 11:28 AM on October 29, 2019 [8 favorites]


The first act of whichever Dem is next elected president (TTCS) should be to pack the Supreme Court to the maximum extent possible, then lock down that loophole forever. Make it a panel of 15. Impeach the visibly unqualified, and replace them with people who aren't wretched specimens of humanity. Why do you think the Court was an engine of progressivism throughout the mid-20th century? It wasn't because the judiciary has some innate sense of social responsibility that the legislature lacks; it's because FDR packed the courts and dared the opposition to do something about it.
posted by Mayor West at 11:44 AM on October 29, 2019 [1 favorite]


So what principle do you suggest that would limit impeachment for having the wrong opinions that would not apply to liberal judges when wielded by Republicans in the future?

What is the principle that currently exists that's preventing Republicans from doing this anyway in the future, no matter what Democrats or liberal judges do in the meantime? This is a group of people that already think that John McCain was a treasonous communist. They will not spare any future effort to utterly destroy anyone who opposes them politically when the opportunity to do so comes along, and assuming that they'll lay off on the maximally destructive path to achieving their ends as long as we don't provoke them is both foolish and exactly how we got into the current situation.
posted by Copronymus at 11:45 AM on October 29, 2019 [6 favorites]


If you have the 2/3 of the Senate you need to remove a judge for being too partisan, you already have enough of a supermajority that the judiciary can’t really stop you anyway.
posted by Huffy Puffy at 12:24 PM on October 29, 2019 [2 favorites]


All of these appointees are accomplices. They will have to be brought to justice along with the thousands of other accomplices and accessories to the ongoing criminal enterprise that is what used to be known as the Republican Party.
posted by ob1quixote at 12:42 PM on October 29, 2019 [3 favorites]


For that matter, it's extremely important for progressives to seek control of state and local governments more generally.

Indeed, I can't help feeling democrats took their hands completely off the wheel in this respect.
posted by smoke at 1:13 PM on October 29, 2019 [4 favorites]


For that matter, it's extremely important for progressives to seek control of state and local governments more generally.

Indeed, I can't help feeling democrats took their hands completely off the wheel in this respect.


I absolutely agree with both posts. We totally, totally blew it at the state and local level since 2006, when Howard Dean's 50-state strategy was the watchword - and it WORKED. I like to think we are waking up since 2018, when we took back several state houses and legislatures. In Maine, for instance, once Janet Mills was installed in the governor's chair, good things ensued. Ditto Wisconsin, Michigan, and Nevada - the latter now has a nice Dem trifecta.

One reason we can get stuff done in California and have Nice Things (tm) and insulate much of our population from the fuckery in Washington, is because we have Democrats in the Governorship and state legislature. State and local governments matter, and it can be easier to effect progressive change at the local level than the federal.
posted by Rosie M. Banks at 1:34 PM on October 29, 2019 [9 favorites]


For that matter, it's extremely important for progressives to seek control of state and local governments more generally.

Indeed, I can't help feeling democrats took their hands completely off the wheel in this respect.


Then-President Obama took his hands off this wheel, or really never took the wheel at all. It is one of the most significant failings of his administration, how little he did while he was President to help build state and local parties and address partisan gerrymandering. We are suffering the consequences now.
posted by PhineasGage at 1:54 PM on October 29, 2019 [7 favorites]


for the impeachment-limiting principle, it might be informative to study the thirty-or-more-year period during which the "conservative" social reactionaries screamed about liberal activist judges, and, as far as i am aware, did not mount an organized campaign of impeachments. dunno what sort of ... authoritative resources ... may be available on the topic, but those social reactionaries have had several other prolonged legal (and extralegal) strategies over the period. assume there's some sort of sociological/poly-sci/law journal work tangential if not on point.

also, there are procedural rules at law discouraging frivolous cases. they've usually long cleared that bar before we become aware of them. that bar might could use some calibratin'.

i think impeachment & unraveling the works of the present misministration via criminal conspiracy means are great ideas. hopeful, though not terribly enthusiastic about chances.
posted by 20 year lurk at 5:54 PM on October 29, 2019 [1 favorite]


Impeaching Brett Kavanaugh seems to be an obvious place to start

Eh, maybe not, from a strategic point. Kavanaugh's a shitbird who doesn't deserve his seat, but he's got actual experience - apparently some of the ripe sucks getting put on the lower court benches have barely seen the inside of a courtroom. Pushing impeachment on Kavanaugh is going to be a major fight, and even if he gets unseated there's a good chance it'll end there because everyone's exhausted.

Just like Trump and McConnell have been able to slide these nominees in under everyone's noses, it feels like it might work better to reverse the process; relatively quietly get rid of the nobodies (many of whom will undoubtedly fuck up in really obvious ways) before taking on the big public battle of trying to impeach a Supreme Court Justice. (Also replacing conservative activist lower court judges with real judges means a bunch of cases probably won't even get to the SC for Kavanaugh to shit all over.)
posted by soundguy99 at 9:28 PM on October 29, 2019 [5 favorites]


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