That serious people argue against Democrats adding seats to the Supreme Court BECAUSE OF THE NORMS is extraordinary and depressing....though at some level unsurprising. 1/
I am not one of those who think that norms are unnecessary or a pack of shitlib nonsense (that was the Flavor of the Month among the anti-anti-Trump "left" a couple years back). In fact, I don't think any constitutional arrangement is meaningful without functioning norms. 2/
But (and I feel silly writing this because it should be so extraodinarily obvious) norms are not an absolute good. Some norms are, in fact, terrible. Racism and patriarchy, too, rely on norms to function. 3/
That's not an argument against norms. But it is to say that "musn't do that, it breaks a norm" is only half an argument. 4/
In addition, norms can break down and cease to function. This process is happening to many aspects of our system of government, including the way presidents and the Senate treat their relationship to the Supreme Court. 5/
Even if one's goal in regards to the Supreme Court and the appointment and confirmation process were to return to the status quo ante, unilaterally refusing to break norms won't get you there. 6/
(Let's put aside, for the moment, that many supposed Supreme Court-related status quo antes are wholly mythical.) 7/
And unilaterally following norms is still more irrational if one thinks that the status quo ante isn't the goal and that the Supreme Court as an institution needs fundamental reform. 8/
As I've said above, just as the existence of bad norms doesn't disprove the necessity of having norms, so the need for norms is not an argument following particular norms. 9/
A key component of the decades-long march-thru-the-legal-institutions of the Federalist Society has been a reliance on norm-following by their opponents. 10/
This is one of the reasons why the extravagant norm-violations that led to Merrick Garland not having a hearing (and will lead to the quick confirmation of Associate Justice Amy Coney Barrett, Neomi Rao, or Ivanka Trump) took the form they did: an extended game of Calvinball. 11/
The right does not operate as if there are no norms. Rather, it invents norms willy-nilly as suits its momentary purposes. 12/
And the most predictable Democratic responses to this GOP behavior -- shouts of hypocrisy or doubling down on old norms when they have power -- can do nothing whatsoever to stop the Republican power grab. 13/
In general, Republican governmental norm-breaking is highly targetted to take advantage of the most undemocratic aspects of our constitutional system. This is effective, in part, because our system is designed in a way that makes it easily hacked by authoritarians. 14/
But the imperfections of our constitutional system do not all point in one direction. The Constitution does not specify the number of Supreme Court justices or the number of federal courts (or judges). And these things have actually changed in the past. 15/
Democrats would be truly insane not to take advantage of the fact that the Constitution allows them to defend the American people from a Supreme Court that has, already, stolen a presidential election, tossed out the VRA, and came within a vote of tossing out the ACA. 16/
Americans' very right to self-government has been under assault for decades. And with Ginsburg's death things will, at least in the short run, get much worse. It is imperative that we not let this assault drag on if we can stop it. 17/
One might quote a number of Supreme Court Justices who have written that "the Constitution is not a suicide pact" (the quip is usually originally attributed Justice Robert Jackson)...but in fact the Constition is not the problem here. 18/
Just as the Constitution allows the president to make Supreme Court appointments, gives the Senate the duty to confirm them, and gives Justices lifetime appointments, it does not set the number of Justices. That is established by Congress ... and it has changed in the past. 19/
The problem is not the Constitution. It's norms. And even more than the Constitution, norms cannot be a suicide pact. And, indeed, unless your goal _is_ suicide, they aren't even functioning norms if they are. 20/20
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