#180 / An Astounding Proposal By Bernie Sanders

I watched on both Wednesday and Thursday this week as the first Democratic Party presidential debates got underway. More are planned. I have been quite interested in the reactions to the debates that I have seen, and I note that there have been many comments about the interchange between Kamala Harris and Joe Biden on racism, and about Biden's former opposition to federally-mandated school busing as a way to integrate our schools. Most of the comments I have read say that Harris came off very well in that exchange with Biden, and in the debate overall. I certainly agree. The picture above shows Bernie Sanders in the middle, with the words from Biden and Harris just flying by from both sides. 

No one has mentioned, as far as I have been able to determine, a truly radical proposal from Bernie Sanders, made during the debate on Thursday. That proposal would allow the next president to "rebalance" the Supreme Court, without waiting for Justices to die or resign. In all fairness, the proposal does depend not only on a Democratic Party candidate winning the presidency, but on retaining Democratic Party control in the House of Representatives and winning a Democratic Party majority (perhaps even a supermajority) in the Senate. Maybe no one is expecting that to happen, which is why no one has commented on Sanders' idea. My own explanation is that the commentators just weren't paying attention.

It seems to me that nobody even noticed that Sanders had advanced a completely new idea about what to do about our current, and highly politicized, Supreme Court. Maybe people should be paying more attention to what Bernie Sanders says!

Sanders' idea that we need to deal as a first priority with income inequality, was his major issue in 2016. That idea has clearly defined the field for the Democrats this time around. In other words, Sanders has been an intellectual innovator within the Democratic Party, and coming into the party from outside has undoubtedly helped him to do that. I was a delegate for Bernie Sanders at the 2016 Democratic Party Convention, held in Philadelphia, and it is my observation that the Democrats gave Bernie scant credit for anything in 2016, and may well have lost the presidency because of that. Having been given time to reflect, Democrats should be grateful, not hateful, about Bernie's strong and unrelenting campaign to make the Democratic Party live up to its heritage, instead of being the party of the liberal, wealthy, and the privileged. This is exactly the point that Bill DeBlassio made so effectively in the first round of the debates, on Wednesday. Let's thank Bernie Sanders for that!

Democrats should also pay attention to new ideas from whatever source, and Bernie has some. Did you notice what he said about the Supreme Court? If you didn't, let me outline what I heard.

On Thursday, Sanders said he did not believe in any effort to try to "pack the Court," by adding new Justices that would shift the ideological balance of the Court. "Mayor Pete" Buttigeig has apparently advocated this approach. Franklin Roosevelt tried that, and it failed, because doing that would so clearly transform the Court into a purely "political" institution, and our system actually depends on the Court seeing itself, and the people seeing the Court, as a branch of government that is not, first and primarily, partisan. Sanders had another idea!

What Sanders said is that it would be possible (the Congress would have to agree) to restructure who gets to sit on the Supreme Court. There could be a "rotation" system involving Justices both on and off the Court. This is a radical idea. There are definitely pros and cons, and it might be difficult to accomplish, but what Sanders is trying to remind us is that Congress is actually in charge of the government, including having jurisdiction over the composition of the Supreme Court. 

Article I of the Consitution places ALL legislative power in the Congress. Article II says that the President is supposed to be sure that the laws are "faithfully executed." In other words, the Constitution does NOT contemplate that the president sets policy. The president is supposed to carry out and execute the laws enacted by Congress.

As we know, the Congress has largely abdicated its legislative and policy responsibilities, even over war, and the President now acts like a king. This understanding of the job is particularly congenial for our current President, who kept talking about the "reign" of former presidents as he campaigned for the job in 2016.

But what about Article III, which describes how the judicial branch is structured and operated? Here is the complete text: 

Article III

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. 

Section 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

All the Constitution says is that there shall be a Supreme Court, and such inferior courts as the Congress shall determine. How the court system is organized and operated depends on what the Congress decides. 

Bernie Sanders is suggesting that we should think about having a Supreme Court in which the membership rotates on some basis. All Justices, once appointed, would have a lifetime appointment (as the Constitution mandates and assuming no impeachable offense), but nothing in the Constitution says that Justices of the Supreme Court, once appointed to that Court, must serve on the Supreme Court for life. We could rotate justices off and onto the Supreme Court.

Think about it! That's a new idea! Difficult to accomplish? Certainly. Desirable? Maybe or maybe not. But it does seem to me that this is a new idea worth thinking about, and debating. Properly executed, this idea might help "depoliticize" what has become a very "political" Supreme Court.

What's going on here? Could it be that Bernie Sanders is actually calling upon the Congress to take control of this country, and to do so with both courage and innovation?

YES! That is exactly what Bernie Sanders is doing, and he should be celebrated for the role he is playing to help make American democracy great again!

That's MADGA, for those who like acronyms.

Image Credit:

https://www.newstatesman.com/2019/06/second-democratic-debate-everyone-else-was-actor-kamala-harris-s-show