Greetings,
There has been a deluge of commentary in the media about the Ginsburg vacancy on the Supreme Court and what is to be done. Similarly, have been a lot of comments by Musings readers. As it seems clear now, we are moving ahead with Mr. Trump’s choice, and the angst and these battles probably won’t amount to much. They may actually serve to deflect the campaign away from the COVID mess, the economy, and Mr. Trump’s attacks on the institutions of our democracy.
WHAT A MESS—WHAT TO DO?
Let’s assume that Mr. Biden wins the election and we survive whatever constitutional challenges to our democracy that stand in the way of his being inaugurated on January 20th…
Assuming the Democrats control both houses of Congress and the Presidency, there are all sorts of ideas being floated about an appropriate response. I would hope that the Democrats do not rise to the bait and do too much. I think a well-considered, rational response is in order.
Let’s remember that the state of Court confirmations has a sorry history, much of which can be laid at the feet of the Democrats, as well as the Republicans. They were the ones who first “Borked” a nominee, eliminated the 60-vote cloture vote to prevent a filibuster and otherwise stood in the way of Republican presidential appointments during the Bush administration. Bret Stephens does a great job in presenting the case for why some of the blame rests with the Democrats in his “Open Letter to Mitt Romney”: https://www.nytimes.com/2020/09/21/opinion/mitt-romney-supreme-court-nominee.html. Too bad Mitt didn’t read this but I understand his principled stance.
All of the above notwithstanding, the Republicans’ actions (summarized by Mr. McConnell pledging to thwart President Obama’s picks for the judiciary and everything else the president tried to do) took the bare-knuckled nature of this fight to a fevered, cynical, hypocritical, immoral level. Then the Republicans took this even further out with the Merrick Garland fiasco.
Erwin Chemerinsky, the Dean of Berkeley School of Law (note to readers: The name “Boalt” has been removed from the law school’s name) suggests that the Democrats increase the size of the court to 13. Mr. Chemerinsky is a brilliant legal scholar and top-notch thought leader (whose school had the good sense to admit one Lauren Sonnenberg!). His suggestions should always be taken seriously. https://www.latimes.com/opinion/story/2020-09-18/op-ed-democrats-have-a-secret-weapon-to-thwart-a-rapid-ginsburg-replacement-they-should-use-it
At first blush, it would seem reasonable to “right all wrongs” with such a move. This would “correct for” the Merrick Garland travesty and the confirmation of Brett Kavanaugh in the face of charges of sexual impropriety and perjury. But it goes too far and seeks redress for too many wrongs. The Kavanagh confirmation was voted on by the Senate, while we may disagree with the outcome, the seat came up during Mr. Trump’s term and the process was honored. It was the Gorsuch confirmation (in lieu of Garland) that was out of the ordinary. On that basis, I suggest a more “surgical strike.”
A THOUGHTFUL SURGICAL STRIKE
I want to solve one problem and one problem alone. The unwillingness to consider the nomination of Merrick Garland, based upon the cynical assumption that a party should not consider and wouldn’t ever vote for a nominee from the President of the opposing party, was a travesty that must be corrected. But correcting it should be surgically done.
In order to restore equity, the argument is that the Senate should not confirm Mr. Trump’s nominee. By not doing so (assuming Mr. Biden is elected), the wrong of denying Mr. Garland is rectified by a nominee of a Democratic president. But the Republicans seem unwilling to acknowledge this error or at least acknowledge that the “McConnell Rule” should be fairly applied. The nominee will be confirmed and, if that nominee is qualified, by all rights (but for the McConnell Rule) should be confirmed.
The solution rests with the Democrats next year increasing the Court from nine seats to 11 (and not the 13 Dean Chemerinsky suggests). Because the Garland nomination resulted in a net “swing” of the court of two seats, simply add those two seats to “right the wrong.” Here’s the math:
• If Trump’s nominee is confirmed, the court has a 6-3 majority of conservative Justices.
• Had Garland been confirmed, then the court would be 5-4, in favor of the conservatives.
• If the Court is increased from nine to 11 seats and those two seats were nominated by Biden (assuming he’s the president), then the Court’s split would be 6-5, more or less preserving the split, had Mr. Obama’s nominee not be denied.
Some will scream that this is “court packing” like that pursued unsuccessfully by FDR. But there is a distinction. In FDR’s case, he was trying to stack the Court in order that it would rule favorably on his New Deal legislation. Here, there is no specific intent to get the court mixed up in legislation. Here, it is merely to set the balance to what it would have been if we had a consistent rule, to wit, either presidents are allowed to nominate Justices in the final year of their term or not.
Remember that the size of the Court is not mandated by the Constitution, but by law. And if people believe that nine is the “magic number,” then consider providing that the next two seats that come vacant not be replaced. Or consider the option Alok Gaur brought to my attention regarding limiting the cases that come before the Supreme Court, by requiring greater than four Justices to sign off on cases of consequence: https://www.reuters.com/article/us-usa-court-frankel-column-idUSKCN26E3A9
Or, better still, let’s have Congress consider one of the many proposals to limit the life terms of Justices to a set age or limit their terms to a set number of years. Nothing need be permanent—and, as Mr. McConnell’s actions demonstrate, that includes decency.Some will scream that this is “court packing” like that pursued unsuccessfully by FDR. But there is a distinction. In FDR’s case, he was trying to stack the Court in order that it would rule favorably on his New Deal legislation. Here, there is no specific intent to get the court mixed up in legislation. Here, it is merely to set the balance to what it would have been if we had a consistent rule, to wit, either presidents are allowed to nominate Justices in the final year of their term or not.
Remember that the size of the Court is not mandated by the Constitution, but by law. And if people believe that nine is the “magic number,” then consider providing that the next two seats that come vacant not be replaced. Or consider the option Alok Gaur brought to my attention regarding limiting the cases that come before the Supreme Court, by requiring greater than four Justices to sign off on cases of consequence: https://www.reuters.com/article/us-usa-court-frankel-column-idUSKCN26E3A9
Or, better still, let’s have Congress consider one of the many proposals to limit the life terms of Justices to a set age or limit their terms to a set number of years. Nothing need be permanent—and, as Mr. McConnell’s actions demonstrate, that includes decency.
THE PHILHARMONIC FROM THE HOLLYWOOD BOWL—PRODUCTIONS IN COVID
It’s not too late to enjoy the Summer festivities from the Hollywood Bowl. Gustav Dudamel, the L.A. Philharmonic and several guest artists have recorded a series of concerts at an empty Hollywood Bowl. We can begin streaming these starting September 25th—and they’re free!—Here’s information on the series: https://www.latimes.com/entertainment-arts/story/2020-08-21/la-phil-covid-film-concerts-hollywood-bowl. Here’s a teaser for the “Sound/Stage” series and where it can be viewed after September 25th: https://www.latimes.com/entertainment-arts/story/2020-08-21/la-phil-covid-film-concerts-hollywood-bowl
THE METROPOLITAN OPERA
Now that the Metropolitan Opera has indicated that it will have no 2020-21 season and virtually all theatres are dark, I am starting to worry about when theatre, opera and symphony companies will feel it safe to start their seasons (I’m betting most, if not all, of 2021 is shot). And even when they do, what is the likelihood we’re going to feel comfortable, vaccine or not, sitting inside in the dark, with folks coughing through Macbeth. The question we need to ask, and it’s a serious one, is will this sort of culture survive COVID, in light of the many financial priorities?
Have a great weekend,
Glenn
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