A Modest Proposal

[Conspiracy Theorist]

No, I'm not planning to endorse Tom Swift, but I chose that title in my heading, since my idea will be almost as controversial. But, it's something to think about.

Our future teeters on the edge of abyss, in that one more Republican Appointment to the US Supreme Court, especially if Stevens or Ginsburg step down as they most assuredly will, can mean the end of our country as we know it. I do wish more Americans would pay closer attention to this. I've always considered the right to abortion to be a "bellweather" issue, inasmuch as any judge who would reverse Roe v Wade would no doubt also find that the "right to privacy" does not exist. Consider the implications.

The election of Barack Obama or Hillary Clinton would only ensure that the oldest and best judges on the court would be replaced with those of a like mind. But, with the addition of Roberts and Alito to the court, we have already taken a turn so far to the right that the effects will be felt beyond the lifetime of many of us.

Unless....

The US Constitution gives Congress the right to set or change the membership of the US Supreme Court. There is no provision that mandates the court consist of 9 judges. That amount could be increased or reduced by simple legislation.

In the 30's, President Roosevelt was frustrated when many of his best programs to help end the depression were ruled unconstitutional by Right-Wing corporate judges appointed by a President many still consider our worst ever: Warren G Harding, who, in the 2 1/2 years he served prior to his death, managed to appoint 5 judges to the court.

Roosevelt's solution was to ask Congress for legislation that would give him an end-run: That is, he asked that the membership of the Supreme Court to 15 judges. If passed, the legislation would have allowed him to appoint 6 new judges, effectively neutralizing the effect of the Harding judges.

Roosevelt also felt that the US Supreme Court was so backed up that they were overly limited in the amount of cases they would hear, so besides smoothing the way for programs like the WPA, it would have helped move cases along faster. He also wanted a separate court so that one court could hear criminal and the other could hear civil cases. That never went anywhere.

Now, what I propose would only work if a Democrat is elected president and the Senate makes enough gains so that after the 2008 elections, we have 60 Democratic Senators. So many Republican seats are up for grabs that it's mathematically possible that we could end up with 62 seats, so 60 is certainly attainable. Anything less than 60, and the Republicans will most assuredly filibuster any attempt to change the membership on the court. Once you reach 60, the Republicans lose their ability to filibuster. In a case like that, much good could be achieved.

What I propose is that we take a more modest approach than Roosevelt and increase the membership on the court to 11 or 13 judges, although 15 would be nice. If the membership was increased, this would allow a President Obama or Clinton to appoint extra YOUNG progressive judges who reverse the continuing erosion of our rights. A larger court, for example, could rule that factual innocence IS grounds for an appeal, that the right to habeas corpus is inviolable, and that unreasonable search and seizure is unconstitutional, and that if we are to have a death penalty, it at least ought to be as painless as possible. Imagine the opportunities.

My own Senator just happens to be the Senate Majority Leader. If Obama is elected and the Democrats achieve a 60-seat majority, I plan to make just such a proposal to him. In the meantime, it's something to think about and discuss.

[Iris]

This is an interesting idea. Do you see any long-term benefits to it? Or just the immediate?

[SquidInk]

It sounds like you advocate the Constitutional changes via different interpretation, or judges adapting the meaning to sentiments of the time. Am I correct?

If so, what is your opinion regarding Article Five of the United States Constitution?

[HB3]

this would allow a President Obama or Clinton to appoint extra YOUNG progressive judges

Miley Cyrus
Li'l Wayne
Brooke Hogan
Jamie Lynn Spears
Ashley Tisdale
Sabrina Bryan

I'm sure they'd all do good work.

[Chickadee]

to appoint extra YOUNG progressive judges who reverse the continuing erosion of our rights.

I'm always interested to learn more and explore possibilities. What assurance is there that youth equals progressive, I wonder? And, how does youth ensure a reversal of "erosion of our rights?"

Not being argumentative at all--please don't take this the wrong way. The questions are sincere efforts to learn.

I personally fear there are no guarantees with anyone.

[Psychicwolf]

Miley Cyrus
Li'l Wayne
Brooke Hogan
Jamie Lynn Spears
Ashley Tisdale
Sabrina Bryan

I'm sure they'd all do good work.

Oh, the he-double hockey sticks with Jamie Lynn...she just had a baby and has no time. Britney's not busy though!

[Swerdloc]

This is an interesting idea, and I really wonder if any President could get farther with it than Roosevelt did. But I agree with Chickadee that young does not necessarily equal progressive. John Paul Stevens, aruguably the most "liberal" justice, is 88. Some of the most conservative are also the youngest: Chief Justice Roberts (53), Alito (58), and Thomas (60).

[Conspiracy Theorist]

Re, article 5: If you are talking about the passage of a constitutional amendment, no amendment is required to change the membership of the Surpeme Court. Congress has the right to set the number up or down with simple legislation. Now, there could be a problem in that the membership has always been set at 9, and if a bill were passed changing that number, it is possible that the sitting judges would rule "stare decisis," nullifying that law, thus requiring an amendment.

No, young does not equal progressive. You have to either ask the prospective nominees directly about their attitudes, or you have to base your decision on their records. The problem here is, "young" will normally equal a short record. The only reason you want "young," is so that the judge's influence will be felt for the longest possible time. I think Clinton appointed two excellent judges, but they were both older and both Ruth Bader Ginsburg and Stephen Breyer want to step down soon. I would have preferred judges of their ilk, but 20 years younger.

Bush has appointed relatively young conservatives for the same reason.

[Swerdloc]

By the way, great to see you around here again, Rick.