Thank you to everyone who sent questions through the Ask Teri tab. I’ll tackle a few of them today.
Question #1 from the “Ask Teri” tab:
What can be done about Amy Coney Barrett lying under oath to Mr. Leahy on Day 2 of her confirmation hearing?
Senators are not supposed to confirm a nominee who lies under oath. The hearing is supposed to be a chance for Senators to determine whether a justice is qualified. What is currently happening is that the Republicans will confirm any justice who conforms to their ideology. Unfortunately, as we’ve seen, something like perjury will not prevent GOP Senators from voting to confirm. The GOP leadership has proven over and over that it will overlook illegal behavior if it means retaining power.
There is an impeachment process for Supreme Court justices, but it’s the same process as impeaching and removing a president: The House investigates and impeaches, and then the Senate holds a trial and votes on whether to remove. A 2/3 vote from the Senate is required for removal, so as a practical matter, removal of a Supreme Court justice by this process isn’t going to happen.
Personally I haven’t been worried about Amy Barrett, even though she’s obviously a nightmare.
My focus has been on the Senate races. If the Democrats win the Senate and White House (and keep the House) it will be easy to reverse the right-wing takeover of the Supreme Court.
(What I mean by right-wing takeover of the Supreme Court: Sen. Majority leader Mitch McConnell refused to hold hearings on Obama’s appointments, and now he is pushing through as many right-wing judges as possible. In fact, for decades now the highest priority of the right-wing has been to own the courts by installing right-wing judges. This, by the way, started in 1955 when the Supreme Court ruled racial segregation illegal.
Currently, a majority of Supreme Court justices have been appointed by presidents who failed to win the popular vote, further solidifying minority rule.)
The way to undo this is for Democrats to win the Senate and White House (and keep the House) and to add justices. The Constitution does not specify the number of justices. The number can be changed by Congress.
We’ve had 9 justices since the US was sparsely populated. As the country has grown, the number of justices have remained the same. As a result, each justice has disproportionate power. Consider this: We have three branches of government. Control of the Legislative Branch is divided 535 ways: 100 Senators and 435 members of the House. The President has enormous power over one branch of government–but for a limited time. The Judicial Branch is divided only 9 ways, but each Justice has lifetime appointment.
This gives each Justice way too much power, which is why it’s such a big deal each time one is appointed.
What will be important is to add justices in a way that is objectively fair. For example, Congress passes legislation allowing Biden to add a few seats to compensate for the fact that a Supreme Court seat and dozens of justiceships were stolen from Obama, and then add two seats every 4 years bringing the number up to, say 15.
Also, don’t call it court-packing, which has bad associations from when Franklin Delano Roosevelt tried it. (If you all want to know the story, I can do that in a separate blog post.)
How about court updating?
See? Others are so much better at marketing than I am.
Ending lifetime appointments requires a Constitutional amendment, so it’s much harder.
That comes from our friend Alexander Hamilton. The idea was for judges to be able to do what was right without worrying about reelection. It was supposed to put the court above politics. At times it has actually worked. Desegregation would have ben harder if federal judges had to answer to voters.
Good idea. If only I could go back and tell Hamilton a few things. Like “Dude, you had some real good ideas, but the electoral college and lifetime judicial appointments didn’t work out so well.”
Precisely.
Question #2: from the “Ask Teri” tab:
My husband thinks adding new Supreme Court justices is setting a precedent and never-ending tug-of-war every time power changes hands between parties.
I am not at all worried about this. I don’t even see a problem with 20 justices. I think each Supreme Court justice now has too much power and diluting that power would be a good thing. Moreover, your husband’s fears assume that the Republican Party will remain as it is. In fact, the modern GOP is on a collision course with time: Its demographics are shrinking. It will become harder and harder for it to retain power. (For what I mean, see this series of blog posts beginning here.)
Once the Democrats take power, they will take steps to regulate elections and end the voter suppression. I assume they will also add Washington D.C. and Puerto Rico as states, thereby giving Democrats 4 more Senate seats. Unless the GOP changes course (meaning it stops being a white grievance party) it will become harder and harder for it to win national elections.
Question #3 from the “Ask Teri” tab:
Given Trump’s explicitly stated intention to have Supreme Court “decide on ballots” and his designation of regions as “anarchist designations” the prospect of Trump declaring some votes disqualified seems probable. The mad rush to confirm ACB before Election Day supports this scenario. This isn’t “Strongman Con.” This is exactly what he’s been doing all along with Muslim Ban, Wall Funding, and Census. How will SC rule and why?
Trump can’t just ask the Supreme Court to “decide the ballots.”
To get into court, a plaintiff must file a complaint, which states a cause of action. A cause of action must allege a violation of law.
“There is a problem with the ballots” is not a cause of action.
Each state manages its own election, so Trump would have to begin by bringing lawsuits in each state where he wants to contest the vote. He will need evidence that a law was broken or there was some fundamental unfairness.
Even if Trump does manage to get into court in a few cases, comes up with evidence, and tries to escalate the issues to Supreme Court, he would have to do so in enough states and enough ballots to change the results, which will be close to impossible.
If the election comes down to a close race in a single state, we could have a headache, but that doesn’t appear to be where we’re heading.
Moreover, the Supreme Court is not going to overturn a clear victory for Biden and install Trump. To do this would be for the Supreme Court to literally take it upon itself to end American democracy. Even if the Supreme Court did this (and there is a greater chance of a meteor hitting the earth and destroying all life on the planet) the people would never stand for it.
If you feel tempted to go down this particular “what if” rabbit hole, the best course of action is to find a way to help make election day run as smoothly as possible. There are plenty of volunteer opportunities.
Do you have a question for me? Use the “Ask Teri” tab in the menu bar.
