I almost did a spit take when I saw that the “Enemy of The People,” Senate Majority Leader Mitch McConnell, did a radio interview with Fox News Radio’s Guy Benson in which Mitch McConnell (R-KY) Warned Democrats Want To Change The Filibuster, Pack Courts. Benson gave McConnell a softball question (natch) to set up this total lack of self-awareness response:

MCCONNELL: — Washington politics, but this is one of the most conspicuous examples of it. That’s precise — you know, Guy, you’ve had (INAUDIBLE) on your show, but every single Democratic Senate challenger is committed to getting rid of the filibuster. What does that mean to the American people? They want to turn the Senate into the House so things can be done quickly with simple majorities. And here’s what they’re going to do. After they change the filibuster, they’re going to admit the District [of Columbia] as a state. They’re going to admit Puerto Rico as a state. That’s four new Democratic senators in perpetuity. And once they get a hammerlock on the Senate they’re going to then pack the Supreme Court, the Circuit Courts and the Districts Courts by creating new vacancies, filling them with judicial activists. And then they’ll do what they always do, turn to the economy and overtax and over-regulate — and even if the public reacts two years later, a lot of damage will be done. The way to make sure that doesn’t happen is to keep me as the majority leader, the firewall against disaster. If I’m the majority leader, we’re not going to have two new states, we’re not going to pack the courts, and we’re going to do everything we can to prevent them from completely reversing the Tax Reform Act of 2017.

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You would have had to be living in a cave for the past twelve years to believe this load of crap. For eight years of the Obama administration, Mitch McConnell abused the filibuster at an historic rate pursuing his politics of total obstruction to block Obama’s agenda. McConnell also imposed a judicial blockade on Obama’s nominations to court vacancies, which at one point was so bad that there was a crisis in the federal courts as a backlog of cases built up because there were not enough judges to hear the cases. And McConnell topped it all off by blocking Obama’s nomination of Merrick Garland to the Supreme Court, refusing to even extend him the courtesy of a meeting let alone a confirmation hearing. McConnell effectively took it upon himself to reduce the size of the Supreme Court to eight justices for over a year while he plotted to unconstitutionally steal a Supreme Court seat.

After “Moscow Mitch” helped the Russians help Donald Trump get elected in 2016, Mitch McConnell should explain why he obscured Russian interference in our election, he turned his attention to filling all of those judicial vacancies he created during the Obama years with his obstructionist tactics. He immediately cashed in his “stolen seat” on the Supreme Court with Neil Gorsuch, and over the past four years McConnell has managed to fill every vacancy in the federal bench with ideological conservatives, many of whom did not meet the ABA’s approval as “qualified” and lacked experience, but met the ideological test of the Federalist Society and the Heritage Foundation.

Mitch McConnell is the single biggest “court packer” in American history. And let’s not forget that McConnell triggered the rules change, clearing the way for Neil Gorsuch to be confirmed with a simple majority vote. It was McConnell who invoked the nuclear option for Supreme Court nominees in order to get his way.

No senator has ever engaged in an abuse of power in the Senate on the scale and scope of Mitch McConnell. So spare me your crocodile tears, Mitch, about Democrats vowing not to fight by the Queensbury Rules if they take control of the Senate, when you have cast aside the rules for so long, to the great detriment of this country. It’s payback time!

I explained in a post last year, newly relevant today, The latest media faux outrage over a ‘court packing scheme’:

The latest faux outrage from the concern troll media villagers and pundits is over 2020 Dems warm to expanding the Supreme Court. Oh noes!

I’m sorry, but where was the outrage from the concern troll media villagers and pundits when “The Enemy of The People,” Senate Majority Leader Mitch McConnell, was engaged in an unconstitutional judicial blockade of President Barack Obama’s judicial nominees and even stole a Supreme Court vacancy, Mitch McConnell Committed a Judicial Heist and Blames Obama for His Crime, and is currently engaging in an unprecedented court packing scheme of his own, packing the federal courts with unqualified judicial nominees whose only qualification is that the have the stamp of approval from the far-right Federalist Society? McConnell’s laser focus on transforming the judiciary; Trump Is Rushing Through ‘Unqualified’ Judges Faster Than Any Other President; McConnell Cements a Legacy for Trump With Reshaped Courts.

There is nothing sacrosanct about the U.S. Supreme Court having nine justices. In fact, that number has varied over the past 230 years. 7 Things You Might Not Know About the U.S. Supreme Court:

The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. The Judiciary Act of 1789 set the number at six: a chief justice and five associate justices. In 1807, Congress increased the number of justices to seven; in 1837, the number was bumped up to nine; and in 1863, it rose to 10. In 1866, Congress passed the Judicial Circuits Act, which shrank the number of justices back down to seven and prevented President Andrew Johnson from appointing anyone new to the court. Three years later, in 1869, Congress raised the number of justices to nine, where it has stood ever since.

In 1937, in an effort to create a court more friendly to his New Deal programs, President Franklin Roosevelt attempted to convince Congress to pass legislation that would allow a new justice to be added to the court—for a total of up to 15 members—for every justice over 70 who opted not to retire. Congress didn’t go for FDR’s plan.

FDR’s “court packing scheme” is where lazy concern troll media villagers and pundits are drawing a comparison today. But the latest calls to expand the court bear no resemblance to FDR’s plan, so enough already.

There is a rational basis for expanding the U.S. Supreme Court. There are currently 13 appellate courts that sit below the U.S. Supreme Court. It is neither radical nor extremist to suggest that each circuit court should have its own presiding Supreme Court Justice to supervise the circuit.

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The justices of the Supreme Court have responsibilities on the circuit courts and circuit courts of appeals. For the history on how the circuit courts of appeals have been allotted to Supreme Court Justices over the years, see Supreme Court of the United States: Circuit Allotments.

One can reasonably argue there should be, at a minimum, 11 Supreme Court Justices — the D.C. Circuit Court of Appeals and the Federal Circuit probably can be adequately supervised by the full court. (Republicans have for years threatened to divide the 9th Circuit, so there could be 12 Supreme Court Justices).

Congress has the power to decide how many justices make up the Supreme Court. Adding two [even four] justices is entirely reasonable and appropriate. It is in no way a “court packing scheme.” This is a pejorative being being bandied about by conservative media to cover for their own blatant abuses of the federal judiciary for partisan ends.

Elie Mystal, The Nation’s justice correspondent, in an interview with MSNBC’s legal correspondent Ari Melber on The Beat made some excellent points:

Via Crooks And Liars:

MYSTAL: As you laid out so brilliantly in your opening, Mitch McConnell has already changed the number of justices on the Supreme Court. He changed it from nine to eight. If Mitch McConnell can do it, then the Democrats can do it. If the Republicans want to say that the number of justices on the Supreme Court is a function of raw political power, then when the Democrats have raw political power, they are allowed to use it. And use it effectively.
[…]
I do not think that this country can long survive a world where only Republicans get to appoint justices to the Supreme Court. That is the world Mitch McConnell would have us live in.

Melber agreed, and asked why it was so hard to get Democrats to understand that “if Mitch McConnell’s hostage taking is rewarded, if there’s no consequence, then you’re actually incentivizing them doing it to you again.” Mystal explained:

MYSTAL: “Well, I think part of the problem the Democrats have faced here is that they’re just not thinking big enough. One of the arguments that you hear against court expansion is where does it end? If they put two, then we’ll put three, and they’ll put five — who cares? Bring it. I say add ten justices to the Supreme Court right now, that makes it a 19-member body. If the Republicans want to come out and add ten justices after that, that’s 29 justices. That’s about the size of the Ninth Circuit Court of Appeals. Can you give me a really good argument for why the Supreme Court should be so significantly smaller than our circuit courts? I can’t. So then the Democrats come on and add ten more and we get to 100 justices, I don’t care. I can live in that world. Do you know why? Because the more justices on the Supreme Court there are, the less important any one random death is to our polity.

If the Supreme Court operated more like the larger circuit courts, most cases would be heard by a randomly-drawn panel of three judges out of the 29 or 50 (or however many) justices sat on the court. Mystal suggested not only would this positively change the kinds of cases that would make it to the Supreme Court, but it would positively impact the NUMBER of cases that could make it to the Supreme Court. Furthermore, people couldn’t be sure which judges would be deciding their cases, taking the politics largely OUT of the appointments.

Additionally, Mystal hit on the capacity for increased diversity. “Expanded Supreme Court would hear more cases. That’s more opportunity for intellectual, gender, and racial diversity. Right now the Supreme Court is currently staffed by nine people who went to two law schools. What’s up with that? You could fix that,” he argued.

Melber was intrigued, suggesting that for extremely important cases, the court could meet en banc (in full) to decide those, and Mystal confirmed that was exactly what he was proposing. And that with an expanded judiciary, a consecutive series of 15-14 decisions would be extremely unlikely. Compare that to now, when the possibility a 5-4 split leaves the population on tenterhooks awaiting every single decision, and the likelihood of such a split is high? Which seems better for the country?

MYSTAL: Do you know how difficult it would be to have a string of decisions — say the court is 29 people. Do you know how difficult it would be to have a string of high profile decisions that came down 15-14? It would almost never happen. Because, Ari, as you know, the law is frankly too complicated for that, right? These high-level jurists have too many things going on to break down along hard core party lines, as you add more and more and more people to the mix. So, again, from a perspective of making the court less political, having more justices, having their deaths not matter as much, all of those are good things, before you now reenter the hypocrisy of McConnell and Graham and the Republicans having the current court based only on their whims.

It’s not just the Supreme Court. While McConnell has filled all the current judicial vacancies, there is still a shortage of judges in the federal courts according to the American Bar Association:

Our nation is disadvantaged when our Federal Judiciary does not have sufficient judges to hear cases and resolve disputes in a thorough and timely fashion. Over 400,000 cases are filed in federal district courts and courts of appeals each year. These cases include discrimination and civil rights claims, criminal prosecutions, environmental and consumer protection litigation, challenges to government power, and lawsuits to hold corporations accountable for wrongdoing. When there are insufficient judges to handle the workload, resolution of these important kinds of cases is delayed. Persistent vacancies in a busy court increase the length of time that litigants and businesses wait for their day in court and increase case backlogs that perpetuate delays in the future. To further add to the strain on the Federal Judiciary, dozens of new judgeships are needed, according to the Administrative Office of the U.S. Courts. These pressures, if left unchecked, inevitably will alter the delivery and quality of justice and erode public confidence in our federal judicial system.

In March 2019, the Judicial Conference of the United States submitted its biennial recommendation regarding the need for additional Article III judgeships. It is recommending the creation of five new circuit court judgeships (all for the 9th Circuit), 65 permanent district court judgeships, and the conversion of eight existing temporary district court judgeships into permanent judgeships.

So here’s the deal: If Democrats win back control of the Senate in this election, when the new Senate adopts its rules in January, eliminating the filibuster is the first order of business.

  • Split the Ninth Circuit to create a new Circuit Court of Appeals (Republicans have wanted this for years).
  • Fill the shortage of judges in the federal district courts, and the appellate courts where necessary and reasonable.
  • Expand the U.S. Supreme Court to 13 members, so that each Justice oversees a federal circuit court of appeals.

All of these changes are entirely defensible and reasonable, and would reform the courts in a manner which would improve their operations, and make them more efficient.




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