Thread by @jedshug

I’m going to live tweet the @acs plenary panel “The Possibilities and Perils of Supreme Court Reform.”
I’m a critic of court-packing, FYI. 👇
#acs2019
@Dahlialithwick @aziz_huq @NeilScottSiegel @JoanBiskupic @GaneshSitaraman @PackTheCourt Bob Bauer @AaronBelkin

https://twitter.com/jedshug/status/1135749639305596930

@Dahlialithwick: The swing of the Court to the right: “Who did this to us? We did this to us. There is a gap between voters on the left and right on judicial nominations.”
(Crucial point on the risk of putting court-packing on ballot in 2020) 2/

@NeilScottSiegel: “Liberals have not prioritized judges. The way to ‘pack courts’ is to win elections. We have the courts we deserve.”
3/

@AaronBelkin @PackTheCourt:
“We are changing our name to ‘Take Back the Courts.’”
“Republicans won’t let us govern even when we win elections. It’s not a democracy when people of color can’t vote but corporations can flood elections with money.”
4/

@aaronbelkin: “All court reform proposals are terrible. Ours is least terrible. Make up for every seat the Republicans stole.” (He says that’s 2, but could be more. Also lower courts are on the table.) 5/

6/ @GaneshSitaraman and @danepps proposal. On model of appellate courts: Every appellate judge would be member of Supreme Court, with rotating random selections of 9 with supermajority required to overturn fed statutes... See forthcoming Yale Law Journal piece...

7/ FYI I explain a 6-3 supermajority rule here in 2003 article, which Ganesh and @danepps generously cite. Thanks!

https://twitter.com/jedshug/status/1135891534908461056?s=21

8/ @GaneshSitaraman: 2d proposal, a “balanced court” of 5 Dem, 5 GOP Justices, who then select 5 more Justices unanimously in order to sit.
(I’m worried GOP Justices would play hardball/brinkmanship to get their preferred Justices, but both sides could. And then no court at all.

9/ Bob Bauer: 18-year term limits.
(I note a problem: This requires const amendment, because Art III “tenure during good behavior” clearly meant life tenure. Second concern: If Justices know they are off Court at 60ish, will they be thinking about Pres run or big payday?)

10/ @aziz_huq wants courts that do their job. Packing is counterproductive. A tweet cannot summarize @aziz_huq’s eloquence adequately. And I’m running behind.

11/ @Dahlialithwick: Progressives have failed to explain what courts do, what progressive judges do. Our explanation is like “hey, it’s interpretative dance.” And in this environment, courts are less important to left voters than jobs, health care, environment.

12/ @aziz_huq says we should focus on social policy more than judicial politics, focus on democracy.
@NeilScottSiegel says courts fundamentally shape the democratic process.
(I think they agree more than they disagree).

13/ @NeilScottSiegel: “I worry that talking about court reform is an unwitting conspiracy to get Trump re-elected by firing up and unifying the right in opposition more than getting the left mobilized.
Win a few elections and then in a decade, we’ll solve this with appointments.”

14/ @aaronbelkin makes a good point: “Yes, voters are talking more about health care and social issues, but we need to explain that any health care plan or social policy will be undercut by right-wing judges, that courts matter deeply to the issues they’re focused on.”

15/ @GaneshSitaraman contrasts partisan bench today vs. 1930s, when some anti-New Deal Justices were Dem appointees, some pro New Deal Justices were GOP appointees. The split today is so partisan, we need a candid reform taking partisanship into account to revive rule of law.

16/ @aziz_huq: “We need to think more about Congress regulating jurisdiction, which is the way (up until a century ago) Congress checked the courts.”
(I’m worried that Jurisdiction-stripping also runs into legitimate due process problems).

17/ Bob Bauer: Says if there had been a retirement/death in 2008 under Bush, Dems might have blocked Bush nomination to wait for Sotomayor/Kagan. Because stakes are so huge:
“The reason is it’s 40 year seat.”
(But Isn’t the same thing true if seat is 18 years and Roe in balance?)

18/ Original public meaning of Article III “tenure during good behavior” is life tenure. Federalist 79 attached here (Hamilton).
And life tenure to that particular office or seat.