There are many ways to rebalance the GOP-packed courts that go beyond expansion

Judges are supposed to rule fairly and impartially on the laws before them. Before I get into Amy Coney Barrett, let’s review the batch of judges you don’t hear about. Trump and McConnell used over 200 of them to flood our judiciary; let’s see if they seem likely to rule fairly or impartially.

Trump-appointed District Judge Thomas Farr

Fourth Circuit Judge Allison Rushing has ties to a right-wing hate group. Lawrence VanDyke received a stunning rebuke from the ABA, saying he was “lacking in knowledge,” and didn’t have “a commitment to being truthful.” He now sits on the Ninth Circuit.

Appellate Judge Mark Norris said being Muslim is synonymous with being a terrorist, Judge Thomas Farr got rubber-stamped despite his hostility to African Americans, and Judge Leonard Grasz received a unanimous “not qualified” rating from the ABA for being ill-tempered, closed-minded, and completely disregarding precedent.

And then there were the bad ones.

Jeff Mateer said transgender children were part of “Satan’s plan.” Ryan Bounds wrote that there was nothing “inherently wrong with the University failing to punish an alleged rapist—regardless of his guilt—in the absence of adequate certainty.” McConnell pushed his 37-year old former intern, Justin Walker, to the DC Court of Appeals despite his utter lack of experience and unqualified rating by the American Bar Association. Nonetheless, he was rushed through. His predecessor, Judge Thomas Griffith, retired so suddenly and unexpectedly that an advocacy group filed a complaint to see if McConnell pushed him out. In the meantime, Walker’s decisions have been so bad that they’ve been compared to Breitbart screeds.

And then there’s the newest Justice, Amy Coney Barrett. She’s never tried a case, never argued an appeal, and only became a judge in 2017 thanks to Trump. She is so far to the right that she criticized former Justice William Brennan for saying his oath to uphold the law trumped any obligation to his Roman Catholic faith. She stated that judges don’t need to listen to precedent if they don’t like the ruling. She wrote that calling someone the n-word at work doesn’t make it a hostile work environment. She reversed a rape lawsuit because the rape of a teenager by a prison guard fell outside “the scope of his employment.”

Justices Amy Coney Barrett and Clarence Thomas

Sounds like she’ll feel right at home with the two sexual predators the GOP has already put on the Supreme Court.

Facing far less scrutiny, Senate Judiciary Chairman Lindsey Graham just broke committee rules again and advanced five more lower court nominees. One is Trumpist Kathryn Mizelle, a 33-year old who graduated law school just a few years ago. She doesn’t even meet the fundamental standard for consideration as a district judge, which requires practicing law for 12 years. Yet McConnell is running out of ideologues and time, so she’ll likely be confirmed as well, rules be damned.  

There are many others, but suffice it to say, we need to do something. I’ve compiled a list of options from legal scholars that Democrats need to consider—the sooner the better.

Investigate and remove the judges who committed perjury

In McConnell’s rush to ram through judges, investigations were pushed aside. Investigations that need to happen. Further, legal analyst Glenn Kirschner is convinced that several unqualified judges lied under oath, including Justice Brett Kavanaugh.

The FBI was expressly forbidden to complete its investigation of Kavanaugh, including multiple allegations of sexual misconduct. But Kavanaugh exposed clear discrepancies in his testimony when he first learned of the sexual assault allegations brought against him. He claimed that he had only learned of one of his accuser’s allegations after it was published in The New Yorker, but that changed after NBC News published text messages he sent apparently discussing the accusations. He was also criticized for giving clearly inaccurate definitions to slang terms in his yearbook, and inaccurate details about his tenure in the George W. Bush White House.

There is absolutely no reason for Democrats to excuse perjury with Kavanaugh—or with any other judge—just because Republicans excused it. There’s also no excuse for ignoring the blatant corruption of Clarence Thomas either. Some might worry that Republicans will try to launch impeachment proceedings against Democratic-appointed judges as retaliation when they reclaim majorities.

Go for it, GOP.

Democrats nominate the most qualified, vetted judges possible. Obama refused to even consider a judge who received an “unqualified” rating from the ABA. The Republicans, on the other hand, will nominate clueless monsters, because the right ideology trumps actual qualifications. And so Democrats need not be timid about the mandate they are going to be handed. They need not be afraid to investigate, impeach, and have bad apples removed. That’s not punishment, it’s justice.

Citizens’ Brigade

Another idea from Kirschner: As mentioned, several of the judges picked weren’t just unqualified, but like Trump, are really bad and just can’t help stop themselves from doing bad things. A citizens’ brigade could be put together that would observe all of these judges in action. When one of these judges engages in misconduct, such as displays open hostility or enjoys “making inappropriately partisan statements,” they can be referred for discipline and even removal.

Filing a complaint for judicial misconduct is as simple as filling out a form that anyone can use. If anything, this brigade could serve as a watchdog to curb egregious abuses.

Require supermajority for cases involving federal statutes

Yale Law School professor Samuel Moyn and University of Chicago law professor Ryan Doerfler suggested a powerful option for Congress: Pass a law that requires a Supreme Court supermajority for certain cases. There shouldn’t ever be a partisan split on federal statutes. The all-too common 5-4 rulings that we have grown used to with all conservative Justices voting against the liberal bloc made it clear that politics was influencing the decision. (Now it will be 6-3.) Congress can require federal statutes to have unanimous or nearly unanimous decisions from the Justices involved. Moyn and Doerfler’s paper outlines the reasoning.

Proposals to require a supermajority to declare federal legislation invalid would, for instance, preserve but severely constrain the Supreme Court’s ability to intervene in federal policymaking. Barring an unusually lopsided bench, the Supreme Court would remain able to step in in cases of uncontroversial constitutional violation. In more closely contested cases, though, it would fall upon members of Congress and the president to decide what the Constitution permits. In this way, a supermajority rule for judicial review would effectively implement a Thayerian “clear error” standard for judicial review.

Jurisdiction Stripping

Congress has the power to specify that certain legislation is exempt from judicial review. It’s called “jurisdiction stripping.” Under two articles of the Constitution—the congressional powers clause and the judicial vesting clause—Congress can create and place limits upon federal courts. Congress also has the power to limit certain appeals to the Supreme Court under the Exceptions Clause.

Congress has no power to limit original jurisdiction, but it can explicitly limit appellate jurisdiction. In English, this means that Congress can essentially eliminate judicial review of certain federal legislative actions. Congress can also require that such review goes through the state courts as opposed to the federal courts. Congress has the power, if it chooses to use it.

Defying the court

When Antonin Scalia died, McConnell made up a rule that no justice could be appointed in a presidential election year … a rule he enforced right up until Ruth Bader Ginsburg died. When the Trump administration was ordered to continue the census until the end of October, it decided it wouldn’t. The administration ignored any and all rulings against them on returning migrant children it had kept in cages. The administration ignored Congress’ role in determining the budget and announced it would allocate the money however it damn well pleased. The administration violated the Hatch Act with impunity. No one was punished. Democrats need to take note: There isn’t a game if only one side plays by the rules.

Here’s the deal: the Supreme Court derives its authority from people’s belief in its impartiality. It has no armed forces and no enforcement mechanism. Yet if the justices are seen as an extension of a political party, there is no moral reason and no legal consequence for ignoring hyper-partisan rulings. If statehood is granted to Washington, D.C. under the laws set by the Constitution, Brett Kavanaugh and Clarence Thomas don’t get to take it away. Ignore them. If Amy Coney Barrett strikes down the ACA, ignore her. A President Joe Biden could use the Treasury to continue making subsidies. After all, that’s what Republicans would do. Biden could pardon anyone he wants with impunity. That’s what Trump is going to do.

There’s even a name for ignoring the Supreme Court: Departmentalism. This is defined as the theory that each branch of government has an equal and independent authority to interpret the Constitution for purposes of guiding its own actions. We’ve all ceded to the Supreme Court that five unelected Justices will be the final say in the land—but these five? Hell no.

Will this cause a constitutional crisis? Maybe, but it’s better than the alternative, and it also might finally motivate some real reform. Like the next proposal.

Establishment of Inter-Branch Disputes Court

Reality check: Our government is dysfunctional. The fact that I’m even writing this article proves it. Congressional dysfunction prevents the legislative branch from legislating, unless one party dominates both houses of Congress. As a result, we’ve seen lawmaking authority slowly being ceded to the executive branch, which undermines our Founding Fathers’ intentions. McConnell and Trump have wheeled out a huge spotlight and shone it upon the Founders’ shortsightedness on the Judiciary, which has been manipulated by a determined executive and complicit legislative branch. As a result, we now have a hopelessly partisan Supreme Court, which will primarily side with the party who put them there.

To restore the integrity of the court and faith in our government, Congress should create a completely nonpartisan Inter-Branch Disputes Court (IBDC) to handle the conflicts between the legislative and executive branches. A panel of judges could be selected by both major parties and require a supermajority confirmation. There have been so many lawsuits, for example, between President Trump and the Democratic House of Representatives; an IBDC could have quickly resolved all of them.

Moreover, next year, we are headed for clashes with a Democratic Congress and White House against a very right-wing Supreme Court. We will be facing many real scenarios where the Supreme Court, in a 6-3 partisan ruling, will be attempting to undo major Democratically passed legislation and block attempts to expand rights.

For example, SCOTUS will likely rule that no votes may be counted after Election Day. In Pennsylvania, the GOP made the ridiculous argument that counting votes after Election Day was somehow akin to giving people extra time to vote. If Barrett had been on the court, that decision would have likely ended differently.

Imagine if SCOTUS starts making decisions that ban all states from counting votes early but also bans them counting votes after Election Day. Imagine if the next Congress made a law that banned partisan-gerrymandering only to have SCOTUS throw it out. Heck, imagine a Supreme Court that bans early voting—or just curbs early voting for young people, like Florida did. Right-wing partisans cannot be the final arbiters of our democracy. An arbiter can only be effective if both sides believe they will be given a fair hearing. With an IBDC, the panel would always be balanced.

Expanding the courts

This is the money shot. For the counter-argument that this would allow Republicans to do the same, Aaron Belkin, a political science professor, put forward the best case for Democrats.

“If your wallet is stolen, you don’t forgo efforts to recover it just because it might be stolen again.”

For each of the three justices Trump illegitimately appointed, you need two to nullify. This expands the Supreme Court to 15. But we really should start by fixing the lower courts. We need to add seats to the district courts and the 13 appellate courts. At the very least, Democrats need to add one seat for every unqualified judge pushed through.

Senate Minority Leader Chuck Schumer

Democrats need to get serious about the courts. If Democrats choose to do nothing next year, we will never be allowed to govern, no matter how much we win at the ballot box. We must take action over these stolen court seats. It may be another decade or two before we have a Democratic trifecta, and let’s face it, if we are ruled by the hundreds of unqualified disasters who Trump placed on the courts—who will obstruct us and make it their mission to limit Democratic victories—it may be decades more. Considering the fragile state of democracy in our country, not to mention the sad state of our planet, we do NOT have that kind of time.

Despite winning the legislative and executive branches, we will never get laws enacted on voting rights, gerrymandering, campaign finance, health care, or police reform. We won’t ever get representation for the disenfranchised citizens of Washington, D.C. or the right of self-determination for Puerto Rico. We won’t ever get any action on climate change. Meanwhile, we will lose rights that generations have fought so hard to achieve. The new conservative bloc is determined to revisit and overturn all kinds of precedent, involving everything from reproductive rights to same-sex marriage. 

The judges and justices will have no trouble twisting themselves into pretzels to explain their judicial logic. Already, three federal judges in North Carolina literally made the horrifying argument that it’s “unconstitutional” for states to protect voting rights—yet federal courts have an obligation to intervene to prevent voting expansion. Even if your state legislature doesn’t want voter suppression, it’s going to get it … because the GOP wants it that way.

These solutions are fair and necessary. Naturally, all of these solutions are opposed by the right-wing, because they have the advantage on the courts. The hypocritical flip-flop on Amy Coney Barrett shows they are not above changing rules to suit them. They decry any solution that promotes balance on the courts, such as letting an even number of judges be selected by party, as promoting “partisanship.” No, best we keep the status quo of allowing conservative partisans to strike down laws they don’t like.

Oddly enough, the Republicans throwing a fit over how undemocratic “court packing” is are all surprisingly okay with it when it involves STATE Supreme Courts, where ideological balance is at stake. The Republicans have stacked or attempted to stack the Supreme Courts in 11 states in recent years when they felt it could help them—using their core principle of “because we can.”

Any of the actions I’ve outlined need to be taken soon: if we wait until the GOP recaptures the Senate, it will be too late. The liberal justices can help by forcing votes on major issues early next year to spark action. It only takes four justices to agree to hear a case. Feinstein and Manchin won’t go for expansion unless there is an outcry, which won’t happen if the liberal bloc allows Roberts to only hear softballs for two years. After that, it will be too late.

Naturally, Republicans are opposed to doing anything to ensure fairness in our judicial system. Fixing the courts is the top issue facing the Biden administration we’re all working to install, and should be its top priority. If Democrats ever needed to fight for something, this is it. If we lose, we will need ever-increasing supermajorities just to be able to win elections.  Even then, it will be at least a generation before we are allowed to govern again.

If we win Pennsylvania, Trump loses—which is why Republicans are doing all they can to suppress the vote. Pennsylvania is the crucial battleground state where we need the most volunteers. Click to sign up for virtual phonebanking, textbanking and other activities at Mobilize America here.

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