Toobin’s “Retribution”

With some notable exceptions, Joe Biden’s foremost argument for his election is the return to normality. And if he can produce, that would be a huge boon to most Americans who want the pandemic behind them, get back to the business of business and return to their ordinary lives. At this point, even quiet desperation seems better than what the Year 2020 has had to offer.

And then RBG had to gum up the works, loading yet another layer of troubles upon what remains of our fragile and beaten social fabric. Will Cocaine Mitch push through a new justice before the election? In the lame duck session after Biden wins? Is that the catastrophe that will finally bring the sky crashing down upon us? Jeffrey Toobin tells us not to fear because he’s got  a scheme.

If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.

Retribution was a bad thing only a few days ago, when Trump malevolently used the word to describe the killing of Michael Reinoeh in Portland. And, indeed, it was as horrendous and wrong as described: Never is it acceptable for law enforcement to kill someone on the street in retribution. And “retribution” is just as wrong a concept as applied by Toobin to what his tribe will do to the other tribe. But Toobin softens the blow by adding that it’s “good policy as well.”

The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all.

The irony of this attack on the “antidemocratic relic” is that it comes from the perspective of a side now in the minority, so as to neuter any tool of the transitory party out of power to have any influence in the Senate. Without it, the tyranny of the majority prevails, but since this proposal is contingent on the good tribe being in the majority, it would be a tyranny of the good guys, which is entirely different than a tyranny of the other tribe, the bad guys.

Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder.

There are reasons for and against statehood for both D.C. and P.R. But this has nothing to do with whether it would be a sound policy move, but whether it would introduce four more senators which Toobin believes will be seats owned by the Dems.

Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President.

Do we need more judges, because there are courtrooms sitting empty and not enough people in federal prisons? Or do we need more judges because Trump promiscuously appointed judges to fill vacant seats, and the federal judiciary should become a game of Russian Roulette, where life or death depends on whose appointed judge one gets as the wheel turns?

Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute. If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court.

On the twitters, Toobin chose the number three, so that the Supreme Court would have a contingent of 12 judges, ripe for a tie. It’s generally  considered a bad idea to have ties at SCOTUS. But more to the point, this not only directly politicizes the Least Dangerous Branch so that whatever integrity it possesses will be negated. leaving its rulings enforceable not by intellectual, even moral, suasion, but by the guns of the executive.

Granted, the Supreme Court has been under constant attack as a bunch of political hacks doing the bidding of its political masters by both right and left, though mostly left following the Merrick Garland fiasco. And many who either slept through civics class or prefer not to think buy into the notion that Supreme Court justices, with life tenure and theoretically immune from the vicissitudes of daily politics, will decide as they sincerely think proper. Hey, they even hate C.J. Roberts on the right, now that he hasn’t done the job they were told he would. Justices are like that, you know.

But what does this say about Biden? Of course he’ll oppose Trump’s effort to nominate RBG’s successor, prior positions notwithstanding, as would anyone in his position. But does that mean he’s ready to hop aboard the Retribution Train? Toobin’s proposals reflect radical changes in policy and fact that could well start mutually assured destruction, if the Dems fail to nail down permanent hegemony. Do we start adding states for parties to game the Senate? What about the American Virgin Islands and Somoa? There are cards to be played.

And if the Dems add a couple justices, will the Reps add a couple of their own? How big will the bench have to be when we finally run out of robes? And will it matter when no one cares what the Supreme Court has to say, since we will already know the outcome of cases because future justices have sworn fealty to political agendas?

Joe Biden’s strength is that he’s not Trump. It neither helps Biden, nor serves the cause of returning sanity to American politics, for guys like Toobin to whip up the useful idiots with both fears that any justice Trump nominates will turn out to be as legally knowledgeable as Jeanine Pirro or devoted to ruling as the mob demands. The big question for Biden is whether he can withstand the pressure of the progressive wing and be the liberal Democrat who can unite a nation. It doesn’t help when the pseudo-sophisticated legal pundits like Toobin spread fear and loathing in support of “retribution.”

12 thoughts on “Toobin’s “Retribution”

  1. Dan

    > If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies

    Clearly Toobin isn’t very concerned about consistency (which is no surprise). If Republicans “stole” the Scalia vacancy (which I’d dispute, even as I’d agree that the Senate’s refusal to consider the nomination was improper), they did it by refusing to do what they would do to fill RBG’s seat. If what they did the first time was wrong, they shouldn’t do it again. By the same token, if they should not act to fill RBG’s seat, neither should Obama have acted to fill Scalia’s seat. If anything, there was a stronger argument against Obama’s filling Scalia’s seat than against Trump filling RBG’s–Trump may be reelected, while Obama simply couldn’t be.

      1. John Barleycorn

        But Hypocrite’s Hill is the perfect place to down a bottle of wine or two after dusting off some Leonard Cohen albums while pondering just how many people actually would like to see Jeanine as a supreme or at the very least would like to see the next nominee channel that, oh so special, “rage” Jeanine has for the good of the country.

        And it is Sunday so why not even cork the third bottle and heck perhaps the fourth bottle, while thinking up some kewl new hyperbilirubinemia-ish nicknames for the supremes and the senators?

        Don’t you worry esteemed one, the abdominal pain, chills, fever, chest pain, weakness, lightheadedness, fatigue, and nausea are only temporary.


        P.S. I don’t think you could go wrong starting out with New Skin for the Old Ceremony followed up with Old Ideas, then slip into Various Positions and see what happens after that…

    1. Stephanie

      yes, Obama “simply couldn’t be” because of term limits. Trump has been impeached and may not be re-elected because of his conduct as POTUS. The argument against Obama was weaker and a complete fabrication.

  2. B. McLeod

    The problem is the court has been made into a super-legislature and political football. “Solutions” that only amount to taking back control of the football are not solutions, and will only perpetuate the problem.

  3. JMK

    I think it’s a fair assumption that if DC and PR become states because “we want the extra senate seats on our side” instead of “they deserve statehood for historical reasons” then the Democrats should expect to see the states of South Montana, North Idaho, West Nebraska, and other similar variations on the theme the next tome the Republicans have the votes to make it happen. I’m sure this fine gentleman rails against gerrymandering while proposing it writ large.

    If one party wants to bill itself as the adults in the room, they probably shouldn’t be openly discussing how they’re going to fuck things up even worse once they have the opportunity.

  4. Timothy Patrick Flynn

    Although not a “done deal”, it sure looks like Trump’s anticipated pick, ACB, will be appointed; that’s the way the machinery was designed: POTUS picks SCOTUS with advice and consent of the Senate. The comparisons to February 2016 are misplaced to the extent there was a Democratic POTUS then and a GOP POTUS now. Card carrying Dems will need to get over it.

    When I was sworn into the SCOTUS in June 2010, I was fortunate enough to be seated in the second row before the bench, right in front of RBG. During the motions for admission that proceeded that morning, mine among them, RBG, then age 75, appeared slumped over in almost a slumber. Who could blame her on the occasion of the millionth lawyer seeking a SCOTUS credential; zzzzzzz, for sure.

    A decade later, however, it occurs to me that if RBG really wanted to cement her legacy on the bench, the prudent thing to do would have been to retire gracefully at some convenient point in 44’s second term, practically guaranteeing 44’s nomination for a successor closely aligned with RBG’s jurisprudential world view. Instead, she chose the “long game” which has turned out to be a poor decision from the perspective of those who favor an activist bench. Sadly, and perhaps a bit unjustly, RBG lost control of the legacy she worked her entire life to meticulously cultivate.

Comments are closed.