Tammy Baldwin Embraces Radical Supreme Court Reform Proposals
The Radical Senator from Wisconsin Goes All-In on Witch Hunt of Supreme Court Justices
During the recent Wisconsin U.S. Debate Tammy Baldwin ended her previous silence on proposed changes to the U.S. Supreme Court, floated by her radical colleagues. Baldwin embraced the imposition of a code of ethics on the Supreme Court and creating term limits for the court for the first time.
Baldwin previously avoided commenting on the issue of potential reforms of the Supreme Court or the nomination process.
Baldwin calls for consideration of “term limits for the Supreme Court in a way that doesn’t advantage one party or the other, because we don’t know who will be president when those term limits come up.” Baldwin’s proposal lacks detail on how such a term limits system would work.
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Baldwin Claims Term Limits Won’t Advantage One Party or The Other
A fundamental flaw exists in the attempts to claim partisan balance while imposing term limits. Such a plan could not guarantee vacancies would occur on a regular schedule. The prevailing proposals for establishing term limits attempt to address this by calling for 18-year terms, with the intention of creating two vacancies every presidential term. The justices would then move to senior status, similar to trial and appeals courts. However, this system only establishes partisan balance if one assumes each party holds in the White House for an equal amount of time. If one party held the White House for an extended period of term as Republicans did from 1980 to 1992, a Republican president would have appointed six of the nine justices. Same scenario, had Hillary Clinton prevailed in 2016— Democrats would have held the nominating privilege from 2008 to 2020.
Many proposals attempt to address concerns about a justice’s resignation or untimely death by having the most recently elevated senior justice fill the seat until the next scheduled vacancy. However, in the most extreme of circumstances, this could result in a scenario where a justice appointed by one party could term out and get replaced by an appointee of a different party, only for the new justice to vacate their office shortly after. This would then return the prior justice to the bench for close to another 18 years. This would deny the other party their “turn” to nominate a justice to serve for 18 years.
Finally, these proposals hinge on the assumption a president will successfully get their nominee confirmed. Either the rejection of a nominee by the Senate, which has happened 37 times in American history, the withdrawal and subsequent replacement of a nominee, or an impasse with the Senate could all potentially push a nomination into a different president’s term.
Baldwin can embrace term limits if she chooses, but she should not pretend it can be done in a way that guarantees one party will not end up with an advantage.
Baldwin’s Hollow Call for Code of Ethics
Baldwin then calls for a “binding, tough standard of ethics and conduct” for Supreme Court Justices. Baldwin does not explain what she means by binding. The Constitution is clear; justices “shall hold their office during good behavior.” Who determines if a justice is not in good behavior? That responsibility ultimately lies with Congress through their impeachment power. Under the separation of powers, the Supreme Court cannot on its own adopt a “binding” ethics code, because the court always has the power to unbind itself when desired. Absent a constitutional amendment, the Constitution does not give another entity the authority to impose a code of conduct on the Supreme Court. The Supreme Court has already adopted a nonbinding code of conduct.
If Baldwin wants to hold the Supreme Court to an ethical standard, she should look to her former colleagues in the U.S. House of Representatives. The House can effectively impose and more importantly enforce a standard of ethics by clearly outlining what behavior would lead it to use or not use its impeachment power. While removal from office may be a harsh penalty, without that Sword of Damocles, any ethics proposal is ultimately meaningless.
Perhaps the hollowness of the calls for a “binding code of ethics” explains Baldwin waiting until the last few weeks of the election to embrace them.
Baldwin’s Ridiculous Claim that Three Trump Appointees Lied to Judiciary Committee
Baldwin says she now doesn’t trust the court now because “three Trump appointed nominees lie to the Judiciary Committee about their respect for precedent.” Calling those statements “lies” strains credulity. To restrain the decision making of the judiciary, based on earlier remarks to a Congressional Committee would unduly restrict the ability of a Justice to perform their constitutional role. In addition, such restraint would almost certainly constitute a violation of separation of powers between the legislative and judicial branches.
The duty of a justice is to consider the arguments presented before them including precedent. While stare decisis compels a justice to consider prior decisions, it does not prevent justices from overruling a precedent. Justice Powell once opined, “where it becomes clear that a wrongly decided case does damage to the coherence of the law, overruling is proper.” Some of the most heralded Supreme Court decisions in American history overturned earlier precedents. Such decisions include Brandenburg v. Ohio, Mapp v. Ohio, Gideon v. Wainwright, Brown v. Board of Education, and Obergefell v. Hodges. Imagine if a Justice in the Warren Court had felt restricted in ruling on Brown v. Board because they had pledged respect for precedent during a confirmation hearing.
Baldwin’s Past Behavior on SCOTUS Nominees
Baldwin’s own record shows she is far from being open-minded when it comes to nominations for Supreme Court. After President Trump nominated Neil Gorsuch in 2017, Baldwin pledged to “fully review” his record and give “fair consideration.” Apparently, fully reviewing his record and giving it fair consideration took only two days, since that was how long Baldwin waited before announcing her opposition to Gorsuch. Baldwin expedited her decision-making process by waiting until after she considered the nomination to actually meet with the nominee.
Baldwin similarly announced her opposition to Brett Kavanaugh three days after his nomination, before deciding two months later to schedule a meeting with him. Maybe she was looking for tidbits to repeat at her ultimately cancelled fundraiser with Christine Blasey Ford’s attorneys.
With voters already casting ballots in Wisconsin, they will see Baldwin’s newfound desire to change the Supreme Court for what it is. A last-minute embrace of flawed radical policy proposals couched in ethical language in order to boost enthusiasm amongst her shrinking base.
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