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Sunday, November 26, 2017


Stuffing the courts for Thanksgiving

by Tom Sullivan

The proposal by the Federalist Society to remake the U.S. court system seems a more real threat here because North Carolina Republicans are already trying it. Democrats and community and voting rights groups have challenged law after Republican-crafted law in court since the GOP took control of the legislature in 2010. And Republicans keep losing.

“Instead of changing the way they write their laws, they want to change the judges,” Gov. Roy Cooper, a Democrat, told the New York Times. Their remedy is to make judicial elections partisan, redraw judicial districts more favorable to Republicans, and shorten four-year terms to two, binding judges into a permanent reelection campaign like ordinary representatives.

So when Federalist Society co-founder professor Steven Calabresi unveiled a proposal to lard the court system with Trump judges ahead of the 2018 elections, people might want to take it seriously.

Ian Milhiser writes at Think Progress:

The memo, co-authored by law professor and Federalist Society founder Steven G. Calabresi, proposes a monumental expansion of the federal judiciary. It also is not subtle about its motivations. As the memo states in its introduction, a major purpose of this court-packing scheme is “undoing the judicial legacy of President Barack Obama.”
"There is something bracing about the naked activism of a leader of a movement that has spent the past generation railing against judicial activism," Linda Greenhouse wrote in the New York Times, adding, "There has never been anything like the weaponizing of the federal judiciary that is currently taking place."

Richard Primus writes at the Harvard Law Review blog:
If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional. But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half. Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law. In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power.

In both respects, the proposal suggests a kind of constitutional Armageddon.
The Calabresi-Hirji proposal does not suggest changing the number of justices on the Supreme Court. Having effectively voided President Obama's appointment of Merrick Garland to the court, they don't have to attempt that "heavier lift," observes Primus.

Scruples being out of season since long before the sitting president occupied the Oval Office, Senate Republicans will seat unqualified candidates and burn the Senate's blue-slip tradition for blocking nominees to put a thumb on the scales. Their only sacrosanct rule is one that delivers the preferred outcome. It doesn't? Re-write it.

Dahlia Lithwick writes:
This is the one issue on which the Jeff Flakes and John McCains and the other Republicans who purport to be principled about Trump’s failings will never defect: They will seat the judges, experience or temperament be damned, who will ensure that long after the constitutional conflagration that is Donald Trump has passed, the bench will belong to the GOP. The “Democrats started it” nonsense about Chuck Schumer and Robert Bork will substitute for calls for consistency or accountability or the need to reconcile last year’s positions with this year’s. Democrats are frequently faulted for refusing to play the long game when it comes to stacking the federal courts. The never-Trumpers who’ve now decided they love Trump are playing that game and winning it. They may destroy the legitimacy of the judicial branch in the process.
Ronald Klain describes the proposal in the Washington Post as a "court-packing turducken." As did Milhiser, Lithwick, and Klain, Greenhouse calls it plainly a court-packing plan.

Calabresi shot back at the National Review on Friday: "Nothing could be further from the truth."

I came that close to doing a spit-take onto my keyboard. Read the entire thread. Then don't get angry. Get active. Don't assume the Senate parliamentarian will stop this atrocity or that the courts will still be there to stop the next round of constitution-eroding legislation from Congress or your state legislature. Everything Americans who have principles value is on the line.

Update: Corrected (bold) to clarify proposal does not ask to change number of SCOTUS judges.

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