The Court question should be disentangled into at least 2 questions: 1) What is the right size for a Supreme Court?
(Is it 9? No.) 2) What is the right method for judicial selection?
(The current model? Hell no.)
If we are going to change one, change both in a balanced way.
I have concerns about the @danepps@GaneshSitaraman 5/5/5 proposal, because I think the existing conservative Justices will play hardball harder.
But it moves the debate forward by thinking creatively about both questions, and I haven’t seen anything better that addresses both.
For what it’s worth, I suggest: 1) President nominate 1 Justice every 2 years (2 per 4 yr term)...
Let size increase. No term limits.
2) But with a statutory merit model of bipartisan House committee (perhaps with input of governors, the bar...) creating a short list/slate.
Benefits: Deaths and retirements do not open up seats.
Blocking a nominee like Garland does not leave a seat open.
Every presidential election = 2 Justices.
More Justices decreases the political salience and power of each seat, cc: @marinklevy
Also for what is worth, I have been publicly saying the Court was too small and should be expanded since the G W Bush administration, and I generally endorsed merit selection in my book during Obama’s first term (but hadn’t spelled all this out yet).
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In case you missed it, Gorsuch:
* Celebrated legislative supremacy as a Founding principle
* Praised legislators over judges for their fact-finding, judgment, & consensus
* Criticized judges who "sweep in" to address problems
Gorsuch is going to love the next Congress.
Who am I kidding. Gorsuch just likes this Republican legislature restricting voting access.
Phony originalism. Just reading a single clause how he likes. Not a single historical source.
Kagan hits Kavanaugh hard in this footnote, after Kavanaugh puts the Trump Party Line on mailed ballots into a Supreme Court opinion. You can't make this stuff up.
The progressive knee-jerk rejection of originalism over the past 40 years & in a fever pitch in 2020 is one of the sloppiest own-goals I’ve seen in law.
The left doesn’t have to adopt it. But to suggest it’s in bad faith & ignorant is, among many things, unfair & unwise.
Hear me out right here on why the left should adopt, appropriate, and fix originalism.
Better yet, hear Amy Coney Barrett herself show you how to find an originalist right to privacy in the Bill of Rights! She doesn’t even know it, but she’s right:
3/ As a progressive small-d democrat, I think the best way to read law is how the public understood what they ratified (&how the people’s legislators understood what they enacted & its broader purposes), more than how judges later interpreted it. Judges have usually been worse...
The GOP's electoral college advantage (gap between national polling averge & the tipping-point-state average) is ~ 4%:
On @FiveThirtyEight, national avg is Biden +10.3%
PA, the tipping-point-270 state is +6.4%
That means Dems need to win by at least 4% to squeak past 270.
We won't know final gap for a while, but this is a bigger gap than 2016, when Clinton won nationally 2.1%, but lost tipping-point states by > 1%.
One way to fix this gap by Congressional majority vote (and referenda):
Statehood for DC, Puerto Rico & North/South California
2/
3/ I meant " < 1%"
Anyway, keep a Federal District w/ 3 electors for the popular vote winner. (h/t @imillhiser)
That's 11 more electors.
The winner needs a majority of the new 549 = 275 (odd numbers are good)...
On @realTrumpcast w/ @page88, I said let's expand the Senate before the Court. Add at least 3 states: 1) DC 2) Puerto Rico 3) N & S California
Friends ask: "Can you really do that? By majority vote?"
Answer: The Founders did it!
KY, TN, etc...
Thread slate.com/podcasts/trump…
2) This is the first map of the United States, 1789-90.
Note Virginia, Massachusetts, Georgia, Connecticut "Western Reserve."
Those were formally giant states. Over the next few decades, Congress & their state legislatures split them up under Art IV, Sec 3 by majority vote.
3) In 1792, Congress added Kentucky from the western half of Virginia.
VA's legislature had already voted to release the land in the Articles of Confederation era, but Congress had not yet acted. Thus, the new Congress formally added KY as a new state out of an old one.
Watching FoxNews post debate.
"Trump bullied himself across the stage. Changed no one's minds."
"Biden had no car-crash moment, so that's a win for him."
"Muddled, no memorable moment. So not a win for Trump."
All of the FoxNews ads are for Amy Coney Barrett.
And Biden ads as the fiscally responsible candidate.
And home security ads.
And big pharma ads for medicating mental illness.
The @nytimes bombshell on the 2010 tax refund & IRS audit that followed:
"Starting in 2010 he claimed & received a refund totaling $72.9M. The legitimacy of that refund is at the center of the audit battle that he has long been waging, out of public view, with the IRS..."
@nytimes documents "square with the way Trump cites, without explanation, an ongoing audit as grounds for refusing to release his tax returns."
E.g.: July on @seanhannity@FoxNews: “They treat me horribly, the IRS, horribly.”