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View Diary: Daily Kos Elections Live Digest: 2/5 (380 comments)

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  •  Little different (2+ / 0-)
    Recommended by:
    Stephen Wolf, MichaelNY

    FDR did what he did because the Court struck down the National Recovery Act, among other things, on the grounds that they just didn't like it. They were an obstacle to representative government at the time. If the Supreme Court had a liberal majority in 1936 he would never have bothered.

    I don't think he was necessarily wrong to do it, but in retrospect the consequences (namely ending the frenetic legislating period of the New Deal) didn't quite match the gains.

    •  He probably would have succeeded (1+ / 0-)
      Recommended by:
      MichaelNY

      if he had been amenable to a small increase (adding 1 or 2 seats) to the court, something the congressional Dems could have gone along with.

      But FDR wanted to greatly increase the court size and thus doomed the plan.

      In fact, the occasional victory for the GOP cannot hide the fact that this country is fast heading into another era, not of two-party democracy, but a party-and-a-half system. And the GOP is the half a party- Larry Sabato

      by lordpet8 on Tue Feb 05, 2013 at 12:17:27 PM PST

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      •  Though at least age and retirement (2+ / 0-)
        Recommended by:
        lordpet8, MichaelNY

        allowed FDR to reshape the court, though not to the point of producing a reliable liberal majority (only maybe during the 1960s did the Court have that).

        The changeover began in 1937, just after the Court-pack fight, when Justice Willis Van Devanter retired.  It's hard to believe in retrospect that WVD, who opposed all the major New Deal measures that came before the Court, chose to retire while still being of reasonably able body and mind with FDR there to pick a successor.  I find it doubtful that Scalia or Thomas would retire under Obama or another Democratic president even if they became totally incapacitated.

        37, MD-8 (MD-6 after 2012) resident, NOVA raised, Euro/Anglophile Democrat

        by Mike in MD on Tue Feb 05, 2013 at 12:30:25 PM PST

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        •  I will forever have loved to know what (2+ / 0-)
          Recommended by:
          lordpet8, MichaelNY

          Rehnquist (or O'Connor for that matter) was thinking when he didn't retire in 2003-2004. Kerry came within about 1% of winning in the electoral college and even with a GOP senate would have been able to appoint someone significantly to the left of Rehnquist.

        •  Thurgood Marshall sure didn't (2+ / 0-)
          Recommended by:
          bumiputera, MichaelNY

          retire until long after his faculties were degraded. I think both he and Brennan figured that Reagan would be succeeded by a Democrat and that all they needed was to hang on until then, but it didn't quite turn out that way.

          Wasn't Van Devanter quite old when he retired though? Thought he was pushing 80. Problem was that FDR would have had to appoint Joe Robinson to replace him since Robinson wanted the job fiercely and he'd shepherded FDR's agenda through the Senate. Of course, he'd done the same for Herbert Hoover, and FDR thought he'd be ideologically suspect on the Court.

          •  Interestingly enough there were indications (3+ / 0-)
            Recommended by:
            WisJohn, lordpet8, MichaelNY

            that Marshall may have wanted out since the Nixon era. Not sure how substantial those rumors were  but -if my memory and my reading of John Dean's "The Rehnquist Choice" are accurate -they were credible enough that Nixon seemed to be actively contemplating his choice of successor for Marshall

            If that were the case, though, I wonder why he didn't bail out under Carter. Perhaps he was waiting to do it in Carter's second term. That didn't work out well

            Incidentally Marshall seemed to be upset at his fellow liberal Brennan for bailing out under George HW Bush. According to a Brennan biography I have, Marshall hung up on Brennan when the latter called to inform him of his retirement plans. Given all that, it's interesting to note that Marshall announced his retirement around a time when President Bush was at the height of his post-Gulf War popularity and it looked like he'd coast to re-election. I wonder whether Marshall saw all this and figured that President Bush would likely be around for another six more years and there was little point holding out in the hope of a Democrat to win in 1992. Of course by then his own health had deteriorated and he died the year President Clinton came to office.

            Poor guy. It looks like he hung on for as long as he could until he was really in decline. He probably missed out on some good years of a well-deserved peaceful and tranquil retirement in the futile hope of getting a Democratic President to name his successor. He must have known that Bush would name a right wing reactionary nut who would undo all Marshall had worked for throughout his life as his replacement and it must have devastated him to have given Bush that opportunity

            At least when Brennan retired, Bush miscalculated and we got Souter. We're still paying the price with Clarence Thomas

            •  yeah it sucked major when Carter (3+ / 0-)

              didn't get the chance to appoint to the Cupreme Court. It basically gave Republicans a 24 year period (1969-1993) to dominate the Supreme court, which even beats the 20 year FDR-Truman Administration. So by the time Clinton took office the Supreme Court was 8-1 Republican advantage.

              Only Byron White (a Kennedy appointee) had hung on long enough to be replaced by a Dem appointee. But White was a rather conservative justice despite being a Dem appointee.

              In fact, the occasional victory for the GOP cannot hide the fact that this country is fast heading into another era, not of two-party democracy, but a party-and-a-half system. And the GOP is the half a party- Larry Sabato

              by lordpet8 on Tue Feb 05, 2013 at 05:39:23 PM PST

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              •  Though it should be remembered (2+ / 0-)
                Recommended by:
                MichaelNY, lordpet8

                that the party making the appointment isn't always a good predictor of voting behavior.  The 8-1 GOP court you cite (from 1991-93) was usually conservative but not always so, and as you note the one Democrat, White, was pretty conservative while two Republican nominees (Harry Blackmun and John Paul Stevens) were the most liberal members.)

                In 1953, President Eisenhower inherited a court that was all made up of appointees from Democratic presidents Roosevelt and Truman, but it wasn't particularly liberal especially by current standards.  Ironically, Ike's appointments of Earl Warren and William Brennan may have made it more liberal, especially over the long term, which was definitely not something he intended to do.

                Today's court actually does fall on something close to partisan/ideological lines, currently 5R-4D, though some GOP appointees (usually Kennedy and/or Roberts) switch sides in enough major cases (though not enough IMO) to keep it from getting too partisanly or ideologically predictable.

                37, MD-8 (MD-6 after 2012) resident, NOVA raised, Euro/Anglophile Democrat

                by Mike in MD on Tue Feb 05, 2013 at 10:07:26 PM PST

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            •  Honestly this is more an argument for term limits (0+ / 0-)

              of say, 12-16 years non-renewable for SCOTUS justices (or say, that a multipartisan-commission has to appoint them, etc.). I feel like if you're a Supreme Court justice or president today, you have a pretty strong obligation to serve until your term ends (as president) or until you'll be replaced by a like-minded judge (as a justice). It isn't as if these people don't know what they're getting in to, at it really surprises me that ideologically opposition justices would retire with fairly regular occurrence until the 60s-70s or so it seems.

              •  Yeah (2+ / 0-)
                Recommended by:
                WisJohn, Stephen Wolf

                Either 25 or 30 years' limit on the bench or a mandated retirement age (maybe at 80) are two things I'd support for justices.  Never elections though, at any level of government.

                20, CA-18 (home), CA-13 (school)
                politicohen.com
                Socially libertarian, moderate on foreign policy, immigration, and crime, liberal on everything else.
                UC Berkeley; I think I'm in the conservative half of this city. -.5.38, -3.23

                by jncca on Tue Feb 05, 2013 at 08:03:52 PM PST

                [ Parent ]

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