Courts

Pete Buttigieg's Court-Reform Plan Is Exciting, Unconstitutional, And A Bit Naive

I like it though -- at least he's trying.

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Pete Buttigieg (Photo by Alex Wong/Getty Images)

In order to assess the utility of a court-packing or court-reform scheme, you first have to figure out which problem you are trying to fix. That’s not an easy question: even as more progressives have warmed to the idea of changing the structure of the Supreme Court, you’ll find that their reasons for doing so are all over the map.

If you think that the problem is merely that the Republicans stole a seat on the Supreme Court (which they did), then you end up favoring a limited court-packing of adding one or two justices to “make things right.”

If you think that the problem is that Supreme Court justices have too much power for too long, you tend to favor term-limiting justices to end lifetime appointments like you’re a rule against perpetuities evangelist.

If you think that the Supreme Court has been overly “politicized,” you tend to focus on reforming the nomination process. If you think that the Court has been “radicalized,” you support measures that mandate the representation of moderates on the Court.

And if you think this is all Mitch McConnell’s fault, you are not spending all of your time trying to get him unseated in Kentucky, although you should be.

Presidential candidate Pete Buttigieg has been the most out-front with the need for court reform. His early adoption of this platform was a big reason he started getting attention. In many ways, court reform is Buttigieg’s only plan; the rest of his candidacy seems to be the soothing white man noises he can make in 111 different languages.

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Buttigieg is resurfacing his court-reform strategy his week, which is really Washington University in St. Louis Law professor Daniel Epps’s and Vanderbilt Law School professor Ganesh Sitaraman’s plan. Here’s the core of it, from NBC:

Under the plan, most justices would continue serving life terms. Five would be affiliated with the Republican Party and five with the Democratic Party. Those 10 would then join together to choose five additional justices from U.S. appeals courts, or possibly the district-level trial courts. They’d have to settle on the nonpolitical justices unanimously — or at least with a “strong supermajority.”

They final five would serve one-year, nonrenewable terms. They’d be chosen two years in advance, to prevent nominations based on anticipated court cases, and if the 10 partisan justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term.

At the risk of sounding oxymoronic, I’d call this plan: Court Packing For Moderate Whites. The central problem it’s trying to solve for is the impression that the current Supreme Court has become hyper-partisan and extremist. Where are the moderate Supreme Court justices, this plan asks. It assumes that the five partisan representatives from each side are there to satisfy hardcore Federalist Society people and progressives, respectively. But it longs for five unoffensive milquetoasts who can provide “balance” and centrism on the pressing issues of the day. To find these moderate unicorns, the plan cuts out the presidential power to appoint and the Senate’s power to consent. However, it uses the fact that these people were nominated by a president and confirmed by the Senate to get onto the circuit courts as an attempt to get around the somewhat obvious constitutional problems with this scheme.

If this plan were constitutional, Merrick Garland would be on the Supreme Court right now. He’s not, because “pre-confirmation” to the Supreme Court is not really a good argument. And I have no idea who has the constitutional authority to choose, say, “the Democratic justice” in a situation where a Democrat dies but Republicans control the White House and the Senate. And don’t even get me started on the “one-year, nonrenewable term” nonsense. This isn’t Law & Order: Supreme Court; cases don’t always wrap-up in time for summer hiatus. If you really found one of these thoughtful fence-sitters who could achieve some Plutonic ideal of judgment, why would you want to lose him or her after one year? Term limits are favored by young people who have yet to learn the value of institutional memory.

But none of those (entirely valid) criticisms are all that important to me, because any serious court-reform plan is going to require either a constitutional amendment or a radical re-think of how the Supreme Court operates. My main problem with this plan is that it thinks the squishes will come to save us. It imagines non-ideologues, figuratively rending their robes in search of objective legal truths as they are buffeted by “equally valid” attacks from the left and the right. It imagines five centrists voting as a bloc and forcing the partisan representatives into mollifying their beliefs as they try to count to eight, as opposed to the ideological camps trying to pick off three newcomers every year — newcomers who know they are but a year away from being cast back down to the circuit courts and will never get a “permanent” Supreme Court position if they piss off their “home tribe.”

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It’s a plan supported by people who think Anthony Kennedy was a “good” justice, and who can’t tell the difference between Kennedy and Sandra Day O’Connor. Both Kennedy and O’Connor were “Republican” judges, through-and-through — check their votes in Bush v. Gore if you don’t believe me. Neither of them were particularly ideological, which is why they had the reputation as “swing” justices. But O’Connor had a strong sense of what the law should be, and voted courageously along her own lines, even if it bucked prevailing conservative culture-warrior opinion. Kennedy… we saw his squishy cowardice in his last term, when he punted or feigned willful ignorance on multiple cases, then ceded his legacy to an alleged attempted rapist so he could go on tour bemoaning the death of civility.

We know Pete Buttigieg considers Kennedy highly. Buttigieg is fond of saying that his marriage is made possible “by one vote” on the Supreme Court, and I do believe that his deeply personal understanding of what the Supreme Court can do is one of the reasons he’s made court reform such a centerpiece of his campaign. But I no longer understand Kennedy’s votes on gay rights (and his votes on abortion rights in Planned Parenthood v. Casey) as evidence of his beliefs about centrism and legal moderation. I view it as him putting his finger in the air and trying to figure out which way the wind was blowing. When he had chances to stand up to his party and take moderate, centrist positions on campaign finance or voting rights or health care or the freaking Muslim ban, Kennedy failed. Even for non-ideologues, partisan hackery wins the day, more often than not.

Unfortunately, there are far more Anthony Kennedys rolling around out there than Sandra Day O’Connors. Picking five non-partisan judges every year is unlikely to yield five justices with the incredible strength and discipline required to make centrism win the day. Instead, we’ll just get five partisans who are maybe less strident about it all. I suppose that’s an improvement, in the sense that anything is an “improvement” over 30 years of Leonard Leo’s Supreme Court. But the Buttigieg plan is like trying to combat the pyroclastic flow unleashed by the Federalist Society with a some wet blankets.

I favor a court reform plan that accepts the partisanship, but just tries to focus on our totally broken process for choosing the next robed partisan warriors. I want more Supreme Court justices, many more. I want the death of any particular Supreme Court justice to be less of an event, so that picking their replacement is less of a life-or-death struggle for the party out of power. I want the Democrats to get in the game and fight the FedSoc’s fire with fire.

To me, the problem isn’t “partisanship is bad” so much as “only the bad guys have figured out how to be partisan.” Then again, I’m trying to solve for an entirely different problem than Pete Buttigieg. I think Kennedy’s decisions were largely weak-minded bulls**t.

Inside Pete Buttigieg’s plan to overhaul the Supreme Court [NBC News]

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