In the wake of Justice Ginsburg’s death I have seen a number of, frankly, stupid suggestions made. I’m going to collect my reactions to them here in a single post.
A. Puerto Rico should be made a state.
The reality is that Puerto Rico just is not a good fit with the other states. It is poorer by far than the presently poorest state (Mississippi). Only a minority of its people speak English. Whatever you may imagine being an informed voter in the United States requires some command of the English language. Additionally, to the best of my knowledge no state has ever been admitted to the Union with an armed separatist movement which Puerto Rico has. Puerto Rico should be independent and what the Puerto Ricans want should make no difference.
B. Washington, DC should be made a state.
If your complaint is that the people who live in the District are disenfranchised there are simpler, fairer solutions. DC is too small to be a state. What’s next? Indianapolis? It’s larger than DC. Making DC a state fails the Rawlsian test for a just act—it does not increase the total amount of justice. Making New York City, Los Angeles, Chicago, Houston, Philadelphia, and other large cities states on their own is the hotdog solution to our Congressional structure problem. It would be better to limit the federal district to the few blocks containing the White House, the Capitol, and adjacent park areas, prohibit residence other than by the president within the federal district, and cede the balance of the federal district to Maryland.
C. We need majority rule.
I think that the present obsession with majoritarianism is purely instrumental. We heard no such objections in 1992 and 1996 when Bill Clinton became president without a majority of the popular vote. At least arguing for a majority requirement has some basis. Arguing for the tremendous virtue of plurality rule leaves you debating absurdities like the greater legitimacy of 34% of the popular vote compared with 33% of the popular vote.
If you really have a burr under your saddle about majoritarianism, why not direct democracy? That’s where a strict belief in majority rule leads. And majority of what? Voters? Registered voters? Residents?
There needs to be acceptance that we have a rules-based system and sometimes the rules result in presidents being elected without a majority of the popular vote. If you don’t like the rules, change them. If you can’t change the rules, suck it up or leave.
D. Democrats should “pack” the Supreme Court.
My arguments against “packing” the Supreme Court are, essentially, five:
- It invites reprisal. Okay you increase the number of justices to 11. Why not 13? Or 15? Or 17? Or 127?
- Group dynamics tells us that 9 is just about the limit for effective participation by all members.
- Varying the Supreme Court’s numbers to achieve your objectives reduces its legitimacy.
- There is no fixed number on which you can rely to grant you a permanent majority. Supreme Court justices are notoriously hard to corral. Justice Breyer turned out not to be as conservative as was thought when he was appointed. Justice Ginsburg proved less of a consensus-builder than Bill Clinton claimed when he appointed her.
- Just as in the 1930s “packing” the court is a strategy for getting approval for expansions of federal government power which would otherwise be ruled unconstitutional.
If you really want a more politicized Supreme Court, why not abolish judges entirely and have the legislatures rule on all cases? I think we need to depoliticize the court rather than making it more political. I think the better strategy for that is to limit the appellate jurisdiction of the Supreme Court. That is within the Congress’s enumerated powers. The problem is they don’t wanna.
A. My primary issue with PR statehood is that there seems to be an expectation that it will retain all of the unique legal and tax exemptions that are based upon it being a different type of entity. All states should be subject to the same rules.
B. DC/PR statehood dilute representation of other states; I’d be curious of who loses most. Well California presumably loses most in the Senate, but in the House it probably depends on which states are closest to losing a district, probably Illinois if it only loses one district this year.
C. The issue that seems to be overlooked is that the “problem” is that legislative chambers decide what they vote on and when. That’s a common and popular complaint, more so in the House, where the Speaker controls the agenda like a dictator. The fix would be a Constitutional Amendment that requires a vote on a given subject within a certain number of days.
D. I don’t think the Democrats will pack the court, the moderates that feel like Garland should have gotten a vote are going to be opposed to such blatantly partisan remedies.
Heh. Well I see Doc Taylor has written the expected vapid piece about “reforms” thinly cloaked in the notion of “representativeness.” Funny, when out of power, all kinds of nostrums are proposed by the disappointed. The fact is, this is checks and balances in the flesh. Various pros and cons have been covered in comments.
Concerning Ginsberg’s replacement, we have a case study in reaping what you sew. I’m sure all have read the citations: 29 times this has happened, with nominations; always with split WH/Senate resulting in few ratifications, but like WH/Senate control almost always getting approved. So cut the crap, Democrats. And the Republicans would be doing same if the show was on the other foot. Its politics, and elections have consequences.
Read did this, and now the Democrats weep with high minded but purely hypocritical arguments. And who knows Ginsburg’s motivations, but she could have resigned under Obama. Oopsy. They go out of their way to say how sharp she was, but pictures seemed to show her falling asleep in her chair all the time. A self inflicted wound.
Could Dave’s post about respect for institutions, norms and precedent be more relevant? These fevered arguments to overturn 240 years reflect nothing but a desire to game a reasonable and successful system for local political gain in the face of the inability to convince voters. Its small minded and should be resisted vigorously.
The irony is that those complaining about lack of “representativeness” in the electoral college and those who favor DC statehood are frequently the same people.
Essentially agree with all your comments, Dave. I would be even stronger against majoritarian rule, because that can be so easily gamed and so easily abused. And when you pack the judiciary, you essentially turn them into an organ of the ruling party, Venezuela being the most recent prominent example.
Note the party affiliations of those espousing any and all of these proposals (I don’t recalling the R’s saying anything similar at the start of the Clinton or Obama years). If you disagree so vehemently with their plan of action, do you really want to be voting for them? ‘Do what I want or there will be blood’ can be a persuasive argument, but it’s generally one you hear from gangs and other criminals.
” We heard no such objections in 1992 and 1996 when Bill Clinton became president without a majority of the popular vote. ”
That’s because most people dont really mean majority. What is really meant is most votes and people are just sloppy with their language. . We have heard many times how lots of people dont vote, Clinton didnt have majority of votes, etc. However, Clinton did have the most votes. What is bad is that the guy with fewer votes ends up winning quite a bit now.
Steve
Steve
The majority of people voted against Clinton.
Arguing for run-offs or do-overs are reasonable enough. Arguing in effect that my minority is better than your minority? I don’t find that convincing at all.
A radical thought, the D’s could broaden their appeal and seek to win all the votes instead of just the peanut gallery. However, doubtful will happen it requires hard work and leadership.
Party affiliation has been dwindling for both Republicans and Democrats for decades.
If Democrats are certain 11 is the magic number, Republicans should get to work on it, and if everybody works together, President Trump could appoint another 2 Justices.
For the Snark was a Boojum, you see.
“The irony is that those complaining about lack of “representativeness†in the electoral college and those who favor DC statehood are frequently the same people.”
I rest my case. Pure politics. And convenient argumentation. However…….you mentioned Indianapolis. You know, there are worse places to be King. Maybe I’ll ask my brother about housing prices…..
My point is that there is no magic number. Any odd number will do. Ultimately, you get to 439 and it’s a shadow Congress with all of the problems of the present Congress and lifetime tenure to boot.
I know. But I think the more fundamental point is that the system has basically worked for 240 years. I’m not impressed by any arguments for significant change other than that they are currently convenient, and completely flawed. No matter how passionately, legitimately or cynically argued.
Roosevelt similarly attempted to capitalize on rough times.
Opposition almost defines the term conservatism.
I agree with much of your list but not to this:
“Puerto Rico should be independent and what the Puerto Ricans want should make no difference.”
They are American citizens and so I think what they want matters and can’t be completely ignored. If they do the work and preparations and express a strong collective desire for Statehood, I think the Congress should consider it. Whether Congress should ultimately approve statehood is another matter. I have no strong view of this, but do agree the issues you cite are significant.
“The majority of people voted against Clinton.”
I carefully avoid using the terms majority and minority. As I keep pointing out, Clinton had more votes than his opponents. Obama had more votes than his opponents. Reagan had more votes. Trump had fewer.
“I’m not impressed by any arguments for significant change ”
Of course not. You keep winning with fewer votes. Why would you change that?
Steve
In the past when prospective states were substantially different from the others, major concessions have been required before they were admitted. In the case of Puerto Rico it should be that English should be designated the sole official language of the U. S. by constitutional amendment.