There’s an old adage to the effect that there is more than one way to skin a cat. I thought about that when I read a recent opinion column in the New York Times, focusing on Mitch McConnell’s packing of the federal bench with rightwing judges.
The article began by acknowledging that McConnell and Trump–enabled by their allies in the Senate– have packed the federal courts with more than 200 conservative judges over the last four years. Their remaking of the federal judiciary includes three Supreme Court justices, and is part and parcel of the rightwing effort to achieve what it could never manage to achieve through legislation– “including eliminating health care for millions and undermining what remains of the Voting Rights Act.”
The authors of the essay remind readers that we are not entirely helpless in the face of this ideological takeover; they advocate taking a page from the conservatives and forging “a new form of progressive federalism.”
First, state elected officials must be ready to respond quickly to, or act in advance of, rulings from the Supreme Court. If, for example, the Affordable Care Act is weakened or struck down, Democratic state legislatures should have bills drafted to introduce that day to protect people who will lose coverage. And officials must act now to protect and expand access to reproductive health care — especially for poor women and women of color — given the clear threat to Roe v. Wade.
Are excessively business-friendly federal courts making it easier for companies to pollute? Harder for government agencies to address racism? Progressive states can pass policies “to patch holes ripped open” by those courts.
if the Supreme Court further constrains the Consumer Financial Protection Bureau, states can go after corporations for violations of state securities and consumer protection statutes. If the court adopts cramped readings of federal environmental statutes, state regulators must use their tools to go after the country’s largest polluters. And if the court continues to undermine federal bribery laws, state attorneys general can bring corrupt politicians to justice under state criminal law.
What about states like Indiana, deep red and highly unlikely to follow that prescription? In those states, progressive advocacy groups and lawyers outside government can bring lawsuits to enforce rights protected by state constitutions. When I was Executive Director of Indiana’s ACLU, our affiliate brought such suits, and several were successful. And in the early days of the gay rights movement, organizations like Lambda Legal and the ACLU achieved state-by-state victories that ultimately helped change a nationally homophobic legal environment.
Recently, Nevada became the first state in the country to officially protect same-sex marriage in its Constitution. As the essay reminds us, several states have refused to allow their police take part in the federal government’s immigration crackdown. States
can rely on conservative decisions that promote state independence from the heavy hand of Washington. The very jurisprudential tools that make it harder for Washington to achieve progressive aims can empower states to do so instead.
Ironically, the same federalism that facilitated slavery and Jim Crow under the veil of “states’ rights” can be turned to progressive ends.
It’s slower and will take more work, but there’s more than one way to skin that cat.
And after a few years of these tactics the corporate lobby will plead for Congress to bring some regulatory consistency across all states and they will comply. That’s more or less how all Federal regulatory legislation is birthed.
These are indeed discouraging times. For most of my life I have seen nothing but a holding action as liberals fought and continue to fight just to keep our rights from being swept away by the unending greedy and selfish work of conservatives. When all of our efforts are used on these matters, what is left to make progress toward solving the growing list of problems, most of them manmade, that continue to destroy our country?
I have never understood why anyone would want to “skin a cat”; to skin a polecat like McConnell would be of benefit to all.
“First, state elected officials must be ready to respond quickly to, or act in advance of, rulings from the Supreme Court. If, for example, the Affordable Care Act is weakened or struck down, Democratic state legislatures should have bills drafted to introduce that day to protect people who will lose coverage. And officials must act now to protect and expand access to reproductive health care — especially for poor women and women of color — given the clear threat to Roe v. Wade.”
The above copied and pasted paragraph jumped out at me because I have harped, ranted, raved, whined, cried, pissed and moaned about the lack of interest and action regarding local and state elections which are the first step to the federal level. That includes the courts. If regulations were enforced when problems first appeared, there would be less need for court action at any level. Trump has repealed EPA regulations; most of which were ignored by corporations and government action for years, which increased the problem of Global Warming.
This blog ties directly in with yesterday’s blog regarding gerrymandering. Our election ballots for November 3rd contained a lengthy list of judges and the option to retain or remove them from office. With no information from or about the judges’ history, there was no knowledgeable way to make an informed decision. Of course there was little information regarding local and state political candidates due to the presidential election taking over all forms of media while trying to stay safe from the Covid-19 Pandemic…both of which continue today. The courts are throwing out Trump’s bogus cases which should not have reached court dockets; but who is there to stop his action with the Senate AGAIN on an extended recess?
Since 26 states are controlled by Republicans, this appears to be a very tall order, indeed.
If the role of academia is to enlighten or educate the people then I would like to know why the Federalist Society and its conservative and libertarian network are choosing judges for the people of this country. I went over to their website to read their about us section which includes:
“Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”
So, in legal academic circles, what does this mean?
Todd, I don’t know about “legal academic circles”, but I do know about law abiding grandmother circles. And what this high falutin sounding propaganda sounds like to me is “freedom without responsibility”.
We are mistaken to think that the right cherishes America’s democracy. The Evangelicals in control want a Christian nation whose leader is Jesus Christ. Because he has bent over backwards to support their religious freedoms, i.e. the right to discriminate against sinners, Donald Trump is a gift from God. For these folks, democracy stands in the way of achieving their theocracy.
this isnt a roundy round for the federalits,its still shaped as a ALEC tradition. the fact is,this country of laws ,rules,decorum,are being bargained and sold off,via voter ignorance. together the federalists and the ALEC mob are working hand in hand to gain,profit,power,and mob rule..king george then2nd,bush made change with a few words in a few laws,that granted him, silence of the airwaves,change the rules of congress to, achive his invaision of countries that are not,challenging us..and they continue to use this crap.. the republicans have whined about a liberal society for so long,they have provided the monied factors total liberal disregard for any move that secures a working class any sleep at night.. where is the demand for talk,of a republican plan for health care,retirement and workforce security when they want to end all of this?.we the working class,are, too busy and too damn divided to ask questions,or know what to ask, when any answer from the republicans and many limo demos,just ignore us. wheres the conversations?.. its,locked up in a warsaw ghetto like condition called social media..being i do not social media, i am outside looking in,and i dont hear a damn thing out here on airwaves,that help end vietnam..public media is silent,and who controls those entities? we have become hidden behind a wall of flack,and cheap rants.. today,ask yourself,step up to that window and buy something at a store, the people you deal with have mostly lost their common human interactions between two strangers..we are too busy how we smell,on the net.. if you want to send a message,it costs money now..and only then its approved by some entity that provides. the googles would rather sell the lists of whos saying what,over protecting what our consitution provided them from the start.. cleaning house on this one enity should be the very first move..you may want to contain your privacy over someone making money off your misseries also..we have allowed this,and it wont change mcconnel when he buys those pie charts to screw us..instead the very media that everone has run to for relief,has abandoned human interaction,and its means to gather and defend..you can shuffle the talk and garner blessings for,the internet and social media. but we ended vietnam by taking the streets and the politicians in vast numbers and shaming the big war machine and its supporters. somebody may want to curb Bidens pick now,befor he fills his cabinet with the same,ol. where is Warren and Sanders? demand the conversation now, before Biden makes a federalist like cabinet
“Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”
Todd; that is enlightening information in that SCOTUS and hundreds of federal courts are a “centralized and uniform Republican Catholic society”.
“This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”
Interesting stuff, Todd, thanks for sharing. The above begs the question; whose individual liberty and traditional values and what Rule of Law? Currently the evangelicals are passing laws to force their beliefs on everyone’s health care, women’s birth control and trying to end civil rights for all LGBTQs…and those of us whose religions, or non-religious, support health care, women’s birth control and the civil rights for all LGBTQs.
Just a brief comment on the – very common – use of the phrase “to skin a cat” – which I know I used in the past, too. A few years ago while watching a documentary film centered in Asia, I was suddenly and shockingly looking at a live cat in the back of a truck that had been skinned. It was bloody and obviously in shock from the extreme pain. That vision pops right back into my head every time I read or hear that phrase. This comment probably won’t end its use, but remaining silent sure won’t help.
Regarding the topic at hand, the scales have surely fallen from my eyes over the past four years. Here’s to the vitally good works of Stacey Abrams and others in Georgia on behalf of all of us. They still need phone bankers if anyone is interested.
JoAnn, your question, “Whose individual liberty and traditional values and what rule of law?”
Well, the same people behind the Federal Society are behind ALEC as Jack mentioned above. Anne Nelson just wrote a book about the whole judicial network built by the Kochs and others.
She has several videos on YouTube. You’ll find this connects with other authors writing about the Koch families dark networks – they are expansive:
https://www.amazon.com/Shadow-Network-Media-Secret-Radical-ebook/dp/B07QLN5117
If you want to know which direction the GOP is going to head, just look at what they roil against!
How many years have you heard Mr. Mitch scream and kick and throw hissy fits at activist judges!
Not just Mr. Mitch but GOP being in lockstep with that specific thought. Whenever they put up a huge stink, it’s because they are trying to deflect in a way, so they can use this current activity as a case to the citizenry, on how they are repairing all of this damage done by the government’s liberal wing.
Packing the courts as an obvious means to an end, Roosevelt was demonized for suggesting it, and this was in the midst of a crisis that also contained the Great Depression.
With the conservative Supreme Court knocking down ” New Deal” legislation at a level never seen before or since, FDR decided it was time to increase the number of Supreme Court justices!
There is a reason why FDR had more executive orders than any other president by far! I believe it was somewhere in the 1600 range.
Also, some of the Supreme Court justices switched their viewpoints to a pro-new deal position which was designed to stop FDR from packing the court.
There actually was a saying about it during that time, it was “Switch In Time Saved Nine.” Therefore FDR did not end up packing the courts.
Not having the Senate would defang any threats by the Biden administration to pack the courts, because they would need the Senate to do so.
So, Biden would have to start writing executive orders immediately! To get immediate relief from the tragedies that have been taking place and Trumps rescinding programs through executive order!
Biden might be able to meet with the Supreme Court justices and see how it all shakes out! That he might strike a deal to not burn the ball out of his ballpoint pens writing executive orders. The Supreme Court justices I would suspect, would not want to be on public display constantly trying to overturn another branches edicts!
If the Senate flips to 50-50 by Georgia going completely blue, then Biden would have fangs as sharp as a sabertooth. Not only could he negotiate with the Supreme Court from a position of strength, he could also enact court packing legislation to make conservative judges moot. And let’s not forget legally passing legislation and getting it through both houses of Congress.
Sometimes an olive branch is better than a sledgehammer, so, will see!
The sledgehammer approach worked for FDR, although those were different times. But I would suspect the times here and now are going to get a lot worse over the next year. I hope that’s not the case, but is going to be a lot of death in the United States, more so than FDR ever had to deal with.
I don’t think the courts have a lot of gumption to take away people’s healthcare in the middle of a pandemic, recession, and physical wars across the planet. Because, they would be overturning legislation with court edicts, so when it would be impressed upon them, that another branch of government could completely change the shape of their parameters, they might refuse to rewrite legislation by court edict.
Anyway, history is an example of this playing out before, and, standing strong and not flinching, not being the 1st to blink, served FDR well, it would serve Biden well, and could possibly lead to other beneficial guardrails installed. One might be, an overview board or a review board on all of the judges that have been rushed through during the Trump administration. No one likes to have the power of the pen taken away from them, but the courts are not there to legislate, they’re there to be judiciously prudent!
Todd and JoAnn are right on with their commentary today. The Federalist Society with their high-sounding language in re freedom dressed up in prairie schooner libertarianism remind me of the “freedom” Hitler must have promised from von Hindenburg circa 1930, the current promise by ALEC that the poor will be enriched if they embrace trickle down economics, the nirvana Barr is suggesting we will have with a merger of law and religion a la Holy Roman Empire fusion of religious authoritarianism and civil authority.
One largely undiscussed aspect of court expansion today may or may not involve expansion of the Supreme Court, and it is this: expansion of the number of judges at the trial and appellate level, which we can remedy while also blunting Mitch’s efforts over the past four years. We have had overcrowded dockets, trial delays, and overworked judges at both levels for some time, notably in the Ninth Circuit (of which, incidentally, I am an inactive member), so after January 20 we should embark on a substantial increase in the number of judges and/or add new circuits to the system to handle an increasingly sue-happy litigious society.
Such increases would not necessarily be political (as are those of Mitch) but simply those of housekeeping. We increase or decrease the number of personnel we need in other areas of government as we go along, and the judiciary are not immune to such a design in the name of efficiency.
One of the clearest manifestations of Republican cruelty (the only conviction they have left that approaches a “value”) is targeting penalties “especially for poor women and women of color.” No women of means will ever have difficulty finding an abortion. If Republicans and their coocoo (or is it spelled coup coup) cheer leaders, the evangelicals, have their way, however, all indigent women will. There needs to be a norm in our legal system that says a law is invalid if it wantonly affects people of little or no means. That standard – harassing and prosecuting people without resources – appears to be sufficient to bring joy to the hearts of Republicans, many of whom are members of that same group. But poor Republicans, because they are true believers, think themselves immune from the cruelty of those who use them. They are completely unaware that they are being played for the benefit of their favorite politician.
The pervasiveness of cruelty must be grappled with if we are to preserve our national identity. It is currently working to the political advantage of the sponsoring party, but they could easily find themselves on the receiving end of that practice. Many of the 250,000 Americans who died needlessly this year would love the opportunity to express themselves on that subject.
In case y’all missed it, last week MITCH pushed through a 33 year old who took the bar 9 years ago and has never tried a case, much less been a judge, for a life appointment Federal judgeship. The nominee ( as with a number of others) was deemed “unqualified” by the ABA.
I agree that McConnell and the Republicans can certainly be accused, accurately, of hypocrisy in how they handled the Garland nomination v. Amy Coney Barrett’s.
But I never understood the accusation that McConnell and the Republicans did something wrong in filling vacancies on the federal court. If there was a Democratic President and Democratic Senate, you mean that the Democrats wouldn’t have done exactly the same thing? Of course, they would have.
That doesn’t mean you can’t question the qualifications of some of those judicial nominees put up by Trump. A lot of the district court nominees did appear to be unqualified and were probably nominated b/c they were Trump supporters…and lawyers. I’m just saying it’s not “court packing” if you are just filling open positions. Court packing is an historical term that derives from FDR’s attempt to add additional judges to the United States Supreme Court because his New Deal measures kept getting declared unconstitutional by a 5-4 majority.
I have never been supportive of lifetime tenure of federal judges. Long terms, yes, lifetime tenure, no. I very much like the idea of 18 years, one term limit for U.S. SCT judges with terms staggered so there is a vacancy every 2 years. Then there wouldn’t be such an emphasis on putting younger people, who are almost by definition less qualified, who will be maybe 30 years or more. For the record, both Justices Clarence Thomas (29) and Stephen Breyer (26) have been there longer than 18 years. Although some suggest otherwise, I’m pretty sure the Constitution would have to be amended to make this change.
“If the Senate flips to 50-50 by Georgia going completely blue, then Biden would have fangs as sharp as a sabertooth. Not only could he negotiate with the Supreme Court from a position of strength, he could also enact court packing legislation to make conservative judges moot. And let’s not forget legally passing legislation and getting it through both houses of Congress.”
John, I think you are way overestimating the power Democrats will have if they win both Senate races. Even, with the VP as tiebreaker, it will still be a 50-50 Senate. All that is needed is ONE of those 50 Democratic Senators to defect on a vote to give the R’s a majority. (If you think there won’t be any Democratic defections, you might want to think more about Joe Manchin of West Virginia, Kelly and Sinema of Arizona. Even moderates like Amy Klobuchar of Minnesota are going to balk at a lot of the progressive measures. Then you have the fact that the filibuster still exists which means it will take 60 votes on a lot of legislation. Even 50-50 (with Harris breaking the tie), a court-packing bill has as much chance as I have of playing centerfield for the Cincinnati Reds in 2021.
The best thing Biden can do is to identify and constantly schmooze a few R Senators from whom he can get their vote on several of his agenda items. (Reagan dealt with a Democratic controlled House for 8 years and was remarkably successful in working around Democratic Speaker Tip O’Neill and the D majority to get things passed. ) But even if the D’s get their 50-50 “majority” an aggressive progressive agenda will have to wait. The chances of that happening died on Election Day.
I didn’t even get into the House which also has a very narrow majority for Democrats.
Gentle Joe Biden will replace a cat who desperately cried out for a good skinning. But Joe, like Barack Obama before him, wants to go forward as an ethical champion and bring us all together by doing nothing about the countless crimes of his predecessor. Besides buttressing the Republican argument that no (Republican) president should ever have to pay for his crimes, and giving even greater license to future Republican presidents, Joe has two problems. First, he’s smoking dope if he thinks that showing mercy toward the archest criminal ever to befoul the Oval Office proves, to the crazies, his high morals and his magnanimity. They will not be impressed. Second, if Biden does anything vaguely out of line with the rule of law while in office, Republicans will impeach him (if they have the votes and use impeachment proceedings to embarrass him if they don’t) and then try him in court when he leaves office.
No one is above the law, especially terrorists (has he frightened you?) like Trump. Biden has said this. If he believes it, he should show us by acting on it. He need do nothing himself. His new Attorney General will do it all for him if Biden allows. Bill Barr must share that fate, along with Republican Senators who sided with Trump against America on so many occasions.
Paul, the nice thing about being in charge of government is you can direct resources to help the populace anyway you like! And, if Biden would truly take care of the employment and education issues in say, west virginia? I think Manchin would be just fine! With a 50/50 split in the Senate with Harris being the tiebreaker, they could make Puerto Rico a state with two senators and they could also make Washington DC a state with two senators.
With education and jobs flowing into areas that need it the most, sure some folks would cut their nose off to spite their face, but others would want to keep that trend going! That would mean, that Manchin delivered to his constituency.
And of course there could always be executive orders that could be ratified later by legislation.
The addition of four senators with three probably being constantly reliable liberals, I think just the threat of that would move mountains!
Take care of the population, stay true to your promises to assist everyone even if they are not your constituency, that in itself would make a lot of friends and gain a lot of support!
A nice big fat juicy infrastructure bill that would transform West Virginia would definitely get the ball rolling.
Terry,
Biden will not come out and say he’s going after Trump for crimes committed, why get the hornets nest stirred up? They’re already agitated about losing the election. So, play nice until after the senate race is done. Then you can come out and talk about what you’re going to do and who you’re going to go after for crimes committed in government.
The first day of business should be passing an infrastructure bill and get people working again! That’s more credibility than any words you could ever speak.
John Sorg; just today I saw a headline comment on MSNBC, “Democrats divided on filing federal charges against Trump”. The divisiveness within this party will cause Joe and Kamala to be one-term President and Vice President. They will have to begin their work on January 20, 2021, to begin undoing the most dangerous of Trump’s actions if this country is to be saved. Haven’t they learned anything by watching all of Trump’s Republican administration, Congress and more than SEVENTY-ONE MILLION voters vote for a second term of chaos and dictatorship by staying unified.
First, my favorite movie quote (or one of them) –
“Just because something’s fixed, doesn’t mean it can’t be broken.”
Paul – Mitch did nothing “against the rules”, but when you slow-walk Democratic nominees and force the Dems to not only slowly vet (Obama was too slow), but also pre-veto any “liberal” and then ram through any and every Trump appointment (qualified or not) in record time — well, it is “unseemly”
John – exactly – IF (the big if) the Dems can pull off GA, DC Statehood with fast track admission is the first order of business – I think PR is going to take another vote on their wishes – if they opt for statehood, that would be another fast track priority – four Senators elected in Nov, 2021 –
Paul is right about the problems of a Democratic “big tent”, which screwed Obama’s ability to enact strong enough recovery legislation when he got into office, but again, John nailed it – funds for education and infrastructure to WV has powerful persuasive power
Biden will not talk to the Supremes, nor will he have his Justice Department go after Trump. He believes in the old rules. However, he has no control over the states — and probably little control over the Southern District of New York, AKA the “Sovereign District of New York” which has always marched to its own drummer.
I do think that this is a mistake. We keep letting crooks off, because we don’t want to “look political” or Trump supporters “won’t like it”, but that means that the precedent is set – the Emoluments clause is cut out of the Constitution, abuse of a Federal office is approved, misuse of government buildings/assets for personal/campaign purposes is approved, etc.
If we don’t get GA, or GA splits, I think Sheila is on the right track.
Paul Ogden: “But I never understood the accusation that McConnell and the Republicans did something wrong in filling vacancies on the federal court.”
What McConnell and the republicans in the Senate “did wrong” is they refused not only to fill the Supreme Court seat with Obamas choice, the also blocked hundreds of lower court nominees.
“Fact-check: Did Obama leave Trump with 128 judges to …
http://www.statesman.com/news/20201005/fact-check...
Oct 05, 2020 · “That Obama left office with so many unfilled vacancies was largely by design — by Mitch McConnell,” said the University of Vermont’s Lisa Holmes. Our ruling Trump said Obama left him 128 …”
There are hundreds of articles about McConnell’s refusal to fill court vacancies under Obama, only to push through with lightening speed Trumps appointees.