Judges.... and Court Packing

Amy Coney Barrett, a very pleasant human being and a potential disaster as a Supreme Court justice, and her family.  Judges is the topic du jour. The latest straw man argument- really, a question- from the Trump camp is the so called "court packing" plan of the incoming Biden administration. I saw both Lara Trump (Eric's wife, on Chris Wallace this morning) and Eric (on ABC with John Karl) make the same false accusation, that somehow the Biden-Harris plan is to "pack" the Supreme Court, as if that is some kind of horror the equivalent of separating small children from their parents, locking them in cages and making them sleep on the floor under tin foil blankets. 

 To be clear: no president can "pack" the Supreme Court. As the member of Congress who appeared on ABC's program told John Karl- that's Congress's decision as to how many justices are on the Supreme Court. Originally, in 1789, it was 7, later expanded to 9. There's no number specified in the Constitution- it doesn't even have to be an odd number, but it would be silly not to make it odd to avoid ties (which still occasionally happen in the case of recusals. 

But the reason the whole discussion is wildly off base is because it misses an essential point: it's only Republicans, not Democrats, who have court packing goals, to the point that they have farmed out all of their nominations, from the federal district courts (the trial courts) to the 13 Federal Courts of Appeal (11 numbered circuits, a D.C. Circuit, and a special appellate court) to the Supreme Court, all farmed out to The Federalist Society, a group of white right wing nerds/fanatics who seek to use the judiciary to advance their ends. All funded by "dark money", i.e. hugely wealthy right wing fanatics like the Koch brothers and such. 

 And the goals of the Federalist Society do not include a fair administration of justice by competent, experienced, unbiased judges. In fact, many of the nominees spawned by the Federalist Society and nominated by W. Bush and Trump (the only two Republicans who have outsourced their nominations to that group) have been deemed unfit and unqualified, not just by the American Bar Association, which routinely screens them, but even by Republicans on the Senate Judiciary Committee, who have quietly let the Administration know when a nominee was so deficient that even they could not stomach them, and the nominations were withdrawn. "There was Brett Talley, a 36-year-old lawyer and former paranormal activity investigator who tweeted about Hillary Clinton being “rotten” and said his solution to the Sandy Hook shooting massacre “would be to stop being a society of pansies and man up.” 

Matthew Petersen, also a 36-year-old lawyer, couldn’t answer basic questions about law in his confirmation hearing and was basically shamed into withdrawing. Jeff Mateer, a 52-year-old lawyer who described transgender children as evidence of “Satan’s plan” and endorsed gay conversion therapy, was eventually withdrawn too."

 It's worth repeating: the reason the Republicans are so determined to get their judges confirmed is not because they want a fair and well administered judicial system. It's not because they want intelligent, competent, experienced, unbiased, judges on the bench. It's because they want "outcome determinative" judging, where the ends justify the means, where ends that the Republican Party desires to accomplish- voter suppression, gutting health and safety regulations, environmental pillaging, skewing the political system to favor the rich- are the only goal that matters, and they will vote however that purpose is accomplished.

  Two cases in point: (1) the Florida Eleventh Cicruit full panel (10 judges) decision involving the voters overwhelming vote in 2018 to allow convicted felons who have completed their sentences to have their right to vote restored; and (2) the case this week in which a Fifth Circuit panel of three Trump appointed judges stayed the decision of a Texas federal District Court judge who had issued an injunction against Texas Governor Abbott's decision to restrict every county- including the largest counties in the State, such as Harris County (Houston) with millions of citizens, to one- that's not a typo ONE drop off box in one location for absentee ballot voters to hand deliver their ballots. There was no valid reason for Abbott's decision, as the federal District Court judge found after an evidentiary hearing. The only reason was to try to suppress the vote in large counties, which are more likely to skew Democratic. 

 In each case, the courts of appeals- the Eleventh Circuit in the Florida case, where there had been extensive hearings in the trial court to justify the injunction against the Florida legislature, which tried to prevent the voters' will from being enforced and which put up insurmountable roadblocks to the felons being able to vote- voted to overturn the lower court decision. In the Texas case, just three and a half weeks before the election, the Fifth Circuit Panel- Judges Kyle Duncan, appointed by Trump in 2018, James Ho, appointed by Trump in 2018, and Don Willett, appointed by Trump in 2018, issued a "stay" so that the lower court ruling couldn't be enforced. That means that in places like Harris County and in any really large county (in geographic size) voters will have to drive long distances to drop off their absentee ballot in person. The "stay" effectively means that the time will run out before the election and the lower court decision will never go into effect. 

 And what was the reason for the decisions? In each case, the judges on the courts of appeals who voted to overturn the trial court judge were appointed by Donald John Trump (with the exception of one of the six in the Eleventh Circuit, where the decision was 6-4, with 5 Trump appointed judges and one George W. Bush appointed judge in the 6, and all 4 judges who dissented having been appointed by Clinton and Obama). Any experienced civil rights lawyer or legal scholar, having read the lower court opinions and, in the case of the Eleventh Circuit case, the lengthy and well reasoned dissent, will tell you that there was no legitimate reason to overturn the lower court decisions. The illegitimate reason was to try to keep Donald Trump from being defeated by suppressing likely votes for the Democrat to try to tilt the election to Trump if it is close enough (one more reason we have to win big). 

 That's why judges matter. And this issue is asymmetric: when the Democrats controlled the White House and the Senate, there was no counterpart to "The Federalist Society" which shovels up the incompetent, biased, and venal appointees that Trump has sent to the Senate for confirmation. Democrats don't look to the courts to secure an advantage as a minority party to suppress the votes or the will of the majority. They never have. The only time "court packing" was even raised was in 1937 when hidebound conservative Republican appointed judges (from the era of Harding, Coolidge, and Hoover) were regularly striking down New Deal legislation from Congress to thwart the will of the majority of American voters who had elected their president and their Congress

. In other words, the Democrats want judges who will rule based on the Constitution and the laws enacted consonant with the Constitution, and who will not rule to favor corporate interests or ideologies. https://en.wikipedia.org/.../Judicial_Procedures_Reform.... 

  And why are Trump and Senate Republicans so desperate to get Amy Coney Barrett on the Supreme Court as soon as possible? The Senators because they know Trump is going to lose, and they are also aware they are likely to lose control of the Senate, and this is their last chance to get a judge on that court who will help frustrate the will of The People as expressed by Congress and the President they have elected. 

 Trump because he knows he is going to lose but who hopes- out loud!- that the Supreme Court will somehow overturn the will of the voters. They don't want Coney-Barrett on the Court to protect the Constitution, as they piously claim, because that has never been a staple of their scheme. And when a justice does do the right thing- as Roberts did in casting the deciding vote against invalidating the entire Affordable Care Act- he is excoriated by the right wing which had so volubly praised him up through that point. 

 So I'm looking forward to seeing if any Republicans who are throwing around accusations of "court packing" against Biden- which is an implicit admission that they know Trump is going to lose- will be asked to justify Governor Abbot's decision to limit drop off boxes to one per county. And then ask them to explain how the Trump appointed judges who overturned the federal District Court that granted the injunction against it were acting as unbiased, principled, jurists.

 https://www.washingtonpost.com/.../70b70cfc-0aff-11eb... https://electionlawblog.org/?p=116618 https://en.wikipedia.org/.../United_States_Court_of...