THE SUPREME COURT PROBLEM-- AND HOW TO FIX IT

Ironically, it's Snarlin' Arlen Specter (R-PA), rather than a Democrat, who seems most worked up that John Roberts and Sammy Alito lied their asses off to get their Supreme Court nominations confirmed. Specter has suggested in recent days that their nonchalant reversals of long accepted American judicial precepts directly contradict the promises they made to moderates and centrists allowing them to win confirmation. Roberts' and Alito's headlong dive into extreme and blatant right-wing politics from the moment they got onto the bench shouldn't really have surprised anyone, but I think Justice Breyer was referring to it in a recent dissent: "It is not often in the law that so few have so quickly changed so much." Yesterday John Amato over at Crooks & Liars asked me if there was anything that could be done about it. Mistakenly, I told him that, without resorting to violence, there isn't.

So wasn't I rather pleasantly surprised when I came across an Op-Ed in today's NY Times that completely contradicts my pessimism! Turns out when Supreme Court judges get wildly political, the way Scalia, Thomas, Alito and Roberts are, there are perfectly acceptable political solutions.

When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five-- hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.
In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

FDR botched an attempt in 1937 but that doesn't mean that President Hillary won't be able to pull it off in 2009, particularly if rubber stamp Republicans like Susan Collins (ME), John Warner (VA), John Cornyn (TX), John Sununu (NH), Miss McConnell (KY), Norm Coleman (MN), Gordon Smith (OR), Pete "Sneaky Pete" Domenici (NM), Ted Stevens (AK), Elizabeth Dole (NC), and James Inhofe (OK) are no longer able to routinely obstruct the will of the country. You want a Supreme Court that takes the side of people over corporations and defends rights instead of threats them? Vote for progressive Democrats.


UPDATE: SCHUMER SHOULD HAVE KNOWN BETTER

A friend of mine was organizing around stopping the Alito confirmation. Reid and Schumer cut him off at the knees and instructed big Democratic donors to not fund the project. Does that surprise anyone? The Democrats can play politics as viciously as Republicans. The difference is that vicious Republicans have the sense to hit Democrats. Vicious Democrats hit other Democrats. Today Schumer was crying crocodile tears about Roberts and Alito duping the senators. What a crock! Schumer thought they were moderates? He's either a liar or an incompetent-- or both.

"Were we duped?" he asked.

"Were we too easily impressed by the charm of nominee Roberts and the erudition of nominee Alito?" Schumer asked. "Did we mistakenly vote our hopes when our fears were more than justified by the ultraconservative records of these two men?"

"Yes," he said.

"Hoodwinked," even. Schumer ingenuously claims there are 4 lessons to be learned from Alito and Roberts: Confirmation hearings are meaningless, a nominee’s record should be weighed more heavily than rhetoric, “ideology matters” and “take the president at his word... When a president says he wants to nominate justices in the mold of Scalia and Thomas, believe him.” Does he think he's fooling someone?


UPDATE: AN INCREASING NUMBER OF AMERICANS ARE STARTING TO REALIZE THE SUPREME COURT IS SERIOUSLY OUT OF BALANCE

Tomorrow's Washington Post carries some interesting polling data of public perceptions of the Supreme Court. "Nearly a third of the public-- 31 percent-- thinks the court is too far to the right, a noticeable jump since the question was last asked in July 2005." Since 2005 Bush has nominated and a rubber stamp Senate has confirmed two extreme right-wing fanatics, John Roberts and Sammy Alito, to the nation's top court. They are both ideologues of the worst sort who, in a sane non-Bush situation would only be allowed in the Supreme Court as tourists or to defend themselves. Every single one of their noteworthy decisions is predictably anti-worker, anti-consumer, anti-human. That is, after all, why each was chosen.

The public seems to have noticed the shift. The percentage who said the court is "too conservative" grew from 19 percent to 31 percent in the past two years, while those who said it is "generally balanced in its decisions" declined from 55 percent to 47 percent.

Do you care? One sure way to do something about it is to be sure to not vote for any rubber stamp Republicans seeking re-election to the Senate. Senators who have rubber stamped every single Bush judicial nomination include Susan Collins (R-ME), Miss McConnell (R-KY), John Sununu (R-NH), Norm Coleman (R-MN), John Cornyn (R-TX), John Warner (R-VA), Larry Craig (R-ID), Gordon Smith (R-OR), Jim Inhofe (R-OK), Pete "Sneaky Pete" Domenici (R-NM), Elizabeth Dole (R-NC), Ted Steverns (R-AK), Lindsey Graham (R-SC), Lamar Alexander (R-TN), Pat Roberts (R-KS), Saxby Chambliss (R-GA). I might also add that a number of reactionary Democrats have also tended to rubber stamp Bush's judicial nominations: Max Baucus (D-MT), Mary Landrieu (D-LA) and Mark Pryor (D-AR). But you want to do something positive? Contribute a few bucks to Tom Allen, who is running to replace Susan Collins in Maine. Allen would have voted to reject Alito and reject Roberts; he will never vote in favor of radical right judges if he's in the Senate.