God Save This Honorable Court
Duncan Black writes:
Eschaton: The Supremos: I was talking with someone the other day about how oddly absent the Supremos are in this election. The candidates aren't bringing them up much. The press isn't bringing them up much. The next president will likely get to make 2, if not 3, appointments pretty much the day after he takes office. Not saying the lack of discussion is good or bad, just find it a bit weird. Supremo discussions usually loom large in presidential politics.
At the moment the Supreme Court consists of one very smart centrist-liberal Democrat, Ruth Bader Ginsburg; one very smart centrist-centrist Democrat, Stephen Breyer; one very old good-hearted Republican, John Paul Stevens; one very tired center-right Republican, David Souter; one right-establishment Republican, Anthony Kennedy; and four raving Republican wingnuts with varying degrees of cleverness. Seven Republicans, only three of them attached to reality, and two Democrats.
This degree of Republican partisan entrenchment in the court is--in a word--bizarre. It is not a good thing.
Moreover. this Supreme Court forfeited any claim to be due deference from the other branches of the government when it prostituted its office to install George W. Bush as president eight years ago. It then established a new constitutional principle: that if an election is close and if one party has appointed an overwhelming majority of justices of the Supreme Court, that majority gets to decide the election.
Republican hack Alex Castellanos said last night, on CNN: "There is no way for us Republicans to win this election unless we had a 9-0 majority on the Supreme Court." That was a joke. But it really wasn't a joke at all, was it?
Think about that.
Is this a constitutional principle that we want established? No. But it will be established unless we declare that this is not, in fact, a constitutional moment we want to embrace.
How can we push back? How can we keep this from becoming an established constitutional principle? All five of the Bush v. Gore justices should have been impeached, but the Republicans--for partisan political reasons--would not step up to the plate. However, now that George W. Bush is on the way out perhaps Republican senators can be persuaded that they do not want "he who appointed the judges wins" to be part of our constitution.
Therefore, it is time to push back. Three of the justices who prostituted their high offices in Bush v. Gore are still on the bench. Either Thomas, Scalia, and Kennedy resign, or congress needs to sanction them. If Thomas, Scalia, and Kennedy will not do the honorable thing, the congress should neutralize them by temporarily enlarge the court to twelve as a one-time sanction for the way in which they prostituted their office eight years ago.
I am not proposing a permanent expansion of the court: when each of the three retires, he will not be replaced. This would be a temporary deviation from the principle that their should be nine justices in the interest of protecting the higher principle that justices should not be corrupt.
UPDATE: If Souter, Stephens, and Ginsburg retire over the next year or two, that would create six openings on the Supreme Court of the United States. Which six people should be appointed?