Biden proposes SCOTUS changes

The filibuster is a legislative rule, and its current use is a modern invention. In an institution that is already designed to be countermajoritarian, it does not promote democracy. We should nuke the thing entirely. Using the democratic process to (constitutionally) change rules you don't like is indeed consistent with democracy.

 

There is a great history and discussion about the filibuster to be researched from many sources. Some accepted concepts - it was never a rule from the founding, but became a practice in the early 1800s, more so by 1837 and leading up to Civil War. It continued as a practice until 1917 when the rule of 2/3 for cloture was adopted. So whether it's a "modern invention" or not is up for debate.

Aside from the practice/origin issues, I don't readily accept that it is undemocratic (small "d" intended). While democracy by definition is a majoritarian rule system, our "modern" ethos has developed to include "minority rights" and the "countermajoritarian" ability to delay and permit deliberation and debate - which really is the concept of the bicameral legislation that you recognize. And, we seem to actually agree that "changing rules" is consistent with democracy. The disconnect appears whether the process for changing the rules is the amendment process or a majoritarian vote of the legislature.

 

The current iteration is a modern invention.

Are you arguing that nuking the filibuster requires a constitutional amendment? Because that would be quite a claim. And the current iteration of the filibuster does not promote deliberation and debate. It kills any bill that fails to meet an arbitrary 60-vote threshold.

 

I guess anything can be deemed "modern" if it has been changed or debated on its edges. The concept and practice is, at best, questionably "modern."

No, I'm not arguing anything about the filibuster requiring a constitutional amendment. Thought that was implied by my statement that the filibuster was not a product of the founding. It is the larger concept of expanding/shrinking federal authority - whether legislatively or judicially - that I am concerned about. How the Senate or other bodies conduct their business is a side issue. If you believe federal authority should include regulating bike paths on non-federal land in Idaho, then convince the country that the Constitution should include the authority for the federal government to do so. If you believe that the federal government should provide the vote to non-citizens, then use the amendment process to remove the proscription against same.

Aside from that larger debate, I favor any tool of either side that limits federal intrusion and lawmaking at this point. Anything to slow the creation of more "helpful" laws/regulations gets my support. We have a wonderful (not perfect, but wonderful when not gamed by political forces) justice system that provides a redress for individual wrongs.

 

The biggest problem with congress now if filibuster were ditched is they would be passing and overturn major laws every 2-4 years - like ACA, tax law, etc. It would be a disaster.

 

1. I don't think that will be the case.
2. If it happens, the people can punish them for it using elections if they're unhappy.
3. More legislation will be a good thing. Because of the gridlock and dysfunction in Congress, there have been significant shifts in institutional power and authority to the judiciary and executive.

Yeah, but the core of it has changed. We're not talking about some small difference. It is a bill-killing device that requires senators to expend no effort whatsoever.

We don't need a constitutional amendment for expansive federal authority. It already exists. I don't much care about bike paths in Idaho or non-citizen voting. Although, I must ask, does the Constitution prohibit non-citizen voting?

Sure, that's your policy preference, but it's not a constitutional requirement. I feel the opposite way. I prefer a broad federal government and active lawmaking. And I do not think highly of our legal system.

 

I'll keep your secret from the judges and Bar.

 

While the filibuster itself is not a modern invention the current version dates back to 1972 when the Senate changed its rules eliminating the talking filibuster which required the opposition to hold the floor of the Senate while the legislation was being debated in effect suspending action on any other legislation or Senate activity. The net result was much more frequent use of the filibuster since there was a much lower price to pay resulting in near gridlock on controversial consequential legislation as the graph below indicates. Although it shows activity only through 2014 the trend has probably become even more pronounced. Rather than completely eliminating the filibuster perhaps the better alternative is to eliminate filibuster by proclamation and return to the talking filibuster.

 

Good info to have. My first reaction - yep, gotta admit the current rendition is "modern" and probably needs looking at - like a lot of things. Then, wait that was 52 years ago. Is 50 years "modern" in terms of "recent"? I guess I hope it is since it's within my life time.

 

to an extent I agree with you and I’d rather congress have the ability to actually do stuff and be held accountable. However it would be hugely disruptive to the political process and the economy if they are just reversing themselves every 2-4 years. People and businesses won’t be able to plan. I’m skeptical that the disrupting party would suffer consequences. This stuff takes time to implement and most people don’t really see the results until down the road.

 

That assumes that no party is holding power for any sustained amount of time.

 

Oh trust me, I don't exactly hide it.

What I refer to as "modern First Amendment doctrine" originated in the 1960s, so count me as a yes too.

 

In the case of judges and justices, how exactly is requiring greater consensus inferior to simple majority?

If the goal is making the Court LESS partisan, turning SCOTUS appointments into a purely democratic process in the Senate seems to be a nose dive in the wrong direction.

 

My goal isn't to make the judiciary less partisan. It's to return power back to the democratic process and away from the courts. Judicial aggrandizement isn't serving us well.

 

This does not make sense to me.

You’re saying that the filibuster is undemocratic.

The filibuster is gone with respect to SCOTUS picks.

Yet you’re acting like the court is less democratic now than it’s ever been.

 

We're certainly on the extreme side of things as a result of constitutional rot. But we're not in unprecedented times. The Lochner Court and the Warren Court were both heavy-handed. Certainly, there are major differences between each of these Courts, but all were highly interventionist.

And let's be frank, the Supreme Court is not a democratic institution. At its best, one can argue it's democracy affirming. Although, that's certainly debatable. But right now, it's not that either. It's done much more to undermine democracy than further it in the past 10ish years. However, that process started before Trump appointed any of its members, so the filibuster change wasn't the cause.

End of the day, the filibuster isn't going to fix the problem. The solution is a more active and functional Congress that starts taking power back from SCOTUS.

 

New York Bar telling congress they have constitutional authority to enact a code of ethics with a separate recusal board

The Supreme Court Needs a Mandatory and Enforceable Code of Ethics | New York City Bar Association (nycbar.org)

The City Bar, through its Rule of Law Task Force, Federal Courts Committee, Professional Responsibility Committee, and Professional Ethics Committee, asserts that Congress has the Constitutional authority to enact binding and enforceable ethics rules for the U.S. Supreme Court, and endorses the creation of a Judicial Investigation Panel and an Office of the Inspector General for the Supreme Court. Noting the lack of an enforcement mechanism in the voluntary Code of Conduct the Court announced in 2023, and listing recent revelations of repeated noncompliance with ethics rules by Justices that have pushed public confidence in the Court to a historic low, the City Bar urges Congress to assert its authority to set enforceable ethical guardrails on Justices’ behavior.

The need for Supreme Court Justices to comply with the highest ethical standards is a nonpartisan issue because, as the Supreme Court itself has emphasized, public confidence in the integrity and impartiality of the courts is a bedrock principle of the rule of law. Impartial justice is embedded in the Due Process Clauses of the Fifth and Fourteenth Amendments and is guaranteed through the interaction of the twin principles of separation of powers and checks and balances. Recognizing the imperative of guaranteeing impartial justice, all fifty states have enforceable judicial ethics codes—including those that bind their highest courts. When some of those codes have come before it, the Supreme Court has highlighted the singular importance of judicial codes of conduct to “maintain the integrity of the judiciary and the rule of law.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009). As it has explained:

Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.

Id. (internal quotation marks and citation omitted).

Based on this reasoning, the Court found that the judicial ethics codes of both Florida and West Virginia serve a “compelling interest in preserving public confidence in the integrity of the judiciary.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015); Caperton, 556 U.S. at 889–90. This is the nonpartisan point of ethics reform: mandatory and enforceable ethics rules enhance judicial integrity. As Senator Grassley put it in introducing a bill to create an independent watchdog for the courts in 2017, an enforceable system of regulation would “keep [the Court] beyond reproach, [and] it will strengthen our judicial branch.”[1]

 

Sure, propose an amendment to the Constitution. I’ll support it, and so will a lot of people. But understand the last time we, the people, implemented Constitutional term limits, the person then holding the office of President, Truman, was exempt from the limitation. The current members of the Supreme Court would also be exempt if the precedent holds. That said, I support a single 20-year term. That would likely preclude the need for age limits, since most Presidents would nominate justices younger than 60.

 

Not quite. Since a constitutional amendment already requires a veto-proof majority in both Houses, the President plays no role. Unless my history is off, the only time a President has signed an amendment was when Lincoln signed the 13th Amendment, but it was just symbolic.