Dems Differ On Supreme Court Fixes

Concord, N.H.—The Supreme Court is broken — politicized, co-opted by right-wing extremists, weighed down by lifetime appointees.

Democratic presidential candidate after candidate at a primary campaign forum here today agreed on that diagnosis. They differed on what the next president should do about it.

Increase the number of justices? Impose term limits? Rotate judges to different federal courts? Enact ethics mandates and sunlight laws?

Those lively legal disquisitions took place Saturday morning over the course of a nearly four-hour ​“Our Rights, Our Courts” presidential forum held in the gymnasium of the New Hampshire Technical Institute in Concord, N.H.

Moderated by MSBNC anchor Stephanie Ruhle and hosted by the pro-choice advocacy groups Demand Justice, the Center for Reproductive Rights, NARAL Pro-Choice America, and the All Above All Action Fund, the forum brought out eight Democratic presidential candidates and an audience of over 500 prospective voters just three days before the Granite State’s First in the Nation primary.

Unlike in previous Democratic presidential candidate debates, including the one that took place Friday night at St. Anselm College half an hour south of the state’s capital, Saturday morning’s forum did not crowd a clown car’s worth of candidates on stage all at once and leave them to jostle for highly coveted TV time and attention.

Instead, each candidate got 30 minutes by themselves to answer questions from Ruhle and the Huffington Post’s Jen Bendery about what role they see the federal judiciary playing in American politics today, and about how they would approach the courts — from an executive perspective and from a legislative advocacy perspective — if elected president.

The event felt more like an extended episode of the Amicus podcast than the more conventional, policy-comprehensive fist-fights of the primary season to date.

The candidates who participated in the forum were former South Bend, Ind. Mayor Pete Buttigieg, entrepreneur Andrew Yang, billionaire philanthropist Tom Steyer, Vermont U.S. Sen. Bernie Sanders, Colorado U.S. Sen. Michael Bennet, Minnesota U.S. Sen. Amy Klobuchar, Massachusetts U.S. Sen. Elizabeth Warren, and former Massachusetts Gov. Deval Patrick.

“Our country lost the muscle memory for reform,” Buttigieg said Saturday, encapsulating many of the candidates’ calls for some kind of major shake up of not just who serves on the federal bench, but of the very rules that govern how the judicial system works.

“Year by year we’ve lowered our ambition for what kinds of reforms we can undertake, even as our system has revealed all of its deep weaknesses.”

The candidates largely agreed as to what kinds of prospective judges they would appoint to the federal circuit courts and appeals courts and the U.S. Supreme Court if elected president.

They must be qualified and respected legal minds, the Democratic candidates said. They must support a woman’s right to an abortion and recognize the scientifically-proven reality of climate change. 

They also all lamented U.S. Senate Leader Mitch McConnel’s blocking of former President Barack Obama’s nomination of Merrick Garland to the Supreme Court in 2016.

They decried the Senate’s narrow, contentious confirmation of Supreme Court Justice Brett Kavanaugh in 2018.

They pointed out that President Donald Trump has wholly remade the federal courts during the first three years of his term through his appointment of dozens of conservative justices at every level.

“The courts have become a place that undercut the unions” and working people in this country, said Warren (pictured).

“The courts have become a place that extend the rights of corporations to put unlimited money into politics. And they have become a core part of tilting our country and our laws in a rightward direction and in a direction that helps those at the top and undercuts everyone else.”

“We need a court system that is independent of our political system,” she continued, articulating a common refrain expressed by nearly all of the Democratic candidates Saturday.

The candidates in what structural changes must come alongside those personnel appointments to get the courts more in line with what they say a majority of the country believes.

Buttigieg: 15 Is Better Than 9

Buttigieg (pictured) kicked off the forum by advocating for perhaps the most ambitious and controversial judicial reform proposed by any of the Democrats running for president: increasing the number of Supreme Court justices from nine to 15.

The former South Bend, Indiana, mayor — who at 38 is the youngest candidate in the field — couched this idea in a slightly more cautious mold than he did earlier in his campaign. If elected president, Buttigieg said, he would convene a bipartisan reform commission charged with exploring a variety of structural reforms to the federal judiciary.

He said he would urge this commission to seriously investigate the prospect of a 15-justice Supreme Court bench. He pointed out that that ​“balanced bench” strategy is not some cockamamie, radical idea, but rather one advocated for by legal scholars Daniel Epps and Ganesh Sitaraman in an article they penned for the Yale Law Journal. 

“The purpose of structural reform is not to make the court more progressive,” Buttigieg said. ​“My appointments will make the court more progressive. The purpose of structural reform is to make the courts less political.”

The ​“balanced bench” model would have the Supreme Court start with 10 president-appointed, Senate-confirmed justices. The remaining five would only make it onto the bench with the unanimous agreement of the existing 10. Buttigieg said that model of judge-approved judges would reduce the likelihood of highly politicized judicial appointments.

“We need to be open to these kinds of adjustments so that this is no longer just another political football.”

“If it sounds radical to talk about the number of justices on the bench,” he continued. ​“Remember that that’s been changed half a dozen times in our nation’s history.”

Sanders: Rotate. Rotate. Rotate

During his time on stage, Sanders warned against Buttigieg’s proposal to increase the number of Supreme Court justices — a strategy he said was unsuccessful when former President Franklin Delano Roosevelt tried to ​“pack the courts” with more justices sympathetic to his New Deal legislation.

Adding a few more judges under one administration could lead to adding a few more judges under the next, and on and on and on, he said. Eventually, ​“you have 87 members of the Supreme Court. And I think that delegitimizes the Supreme Court.”

The kind of structural judicial reform he would support involves not the total number of justices —but where those justices serve.

Supreme Court justice appointments are lifetime appointments, he said, but not necessarily to the Supreme Court. They’re lifetime appointments to the federal judicial system.

“There are some minds out there, legal scholars, that think you can rotate judges out of the Supreme Court to the circuit courts or the district courts,” he said. He said he would support that type of moving around of top judges to reduce the impact of the entrenched biases of individual judges.

And yet, Sanders cautioned, the courts cannot and should not be the sole path towards a progressive ​“political revolution.” That responsibility lies in the mass mobilization of millions of Americans demanding of their government the universal rights that all too many current turn to a select few in the courts to protect: rights to high-quality, affordable healthcare and a good-paying job and education that doesn’t incapacitate one with debt.

“I will not just be the commander in chief of the military” if elected president, he said. ​“I will be the organizer in chief for the progressive movement in this country.”

He promised to travel around the country even after being elected, rallying constituents and putting political pressure on intransigent Congresspeople beholden more to well-connected special interests than the will of the majority. ​“Real change never starts from the top on down,” he said. ​“It is always from the bottom on up.”

Yang: 18-Year Term Limits

Yang offered still another approach to de-politicizing the judiciary: imposing 18-year term limits on Supreme Court appointees.

“We should not have lifetime appointments for Supreme Court justices anymore,” he said.

When the Constitution was first drafted and adopted in the late 18th century, he said, people didn’t live as long as they do now. He said that Supreme Court justices also used to routinely step down from their position for reasons other than their imminent demise.

“We should modernize term limits on the Supreme Court,” he said. An 18-year term limit would be long enough to protect justices from short-term political pressure, he said, and make the process more predictable for presidents, who should expect to be able to appoint around two Supreme Court justices during their time in office.

“Right now it would be rational to follow Ruth Bader Ginsberg around and scrub every door knob she touches,” he joked about protecting the health of the elderly progressive justice. ​“That is not the ideal. We should not have to rely upon Ruth Bader Ginsberg being superhuman and superwoman. We should have a more modern approach.”

He said he would also be amenable to supporting Buttigieg’s idea of increasing the total number of justices to 15. The fact that the court currently has nine is not written into the Constitution, he said, but rather the result of late 19th-century Congressional action.

“The fact that it is nine right now is just a coincidence.”

Yang added that he would also support giving everyone in the country $100 ​“Democracy Dollars” every campaign season for them to give to their favorite candidates. That would allow everyone to exercise their political voices through campaign contributions, he said, and limit the influence of the super wealthy and corporations that can funnel money to candidates through Super PACs.

Klobuchar: Ethics And Sunshine

Klobuchar, meanwhile, targeted her proposed structural reforms not at the number of Supreme Court justices or on how long they should be allowed to serve.

Rather, she as president would push for Congress to pass laws affecting judicial behavior and how the public is allowed to interact with the highest court in the land.

Klobuchar promised to ​“take on in a big way” Connecticut U.S. Sen. Chris Murphy’s proposed judicial ethics bill.

“That would finally say to the Supreme Court: ​‘Judicial ethics apply to you,’” she said. “‘You are not immune, and you have to have a code of conduct.’” She said such a law would prohibit Supreme Court justices from promoting political fundraisers and from hiding financial connections to outside special interests.

“The second thing is sunshine in the courts,” she said. Currently, visitors to the Supreme Court, including reporters, are prohibited from taking photographs and video recording the proceedings.

“I believe people should be able to see the Supreme Court in action,” she said. ​“This is not the horse and buggy days where a couple hundred people show up to watch. No. Everyone should be able to see the Supreme Court when they make decisions about your rights.”