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Comment by jcalvinowens | Hacker News Reader

> It only takes a majority in the senate and house to add a seat to the SCOTUS

Exactly. If Biden wins and the senate flips, they'll just add two justices (for 11 total) to get a majority. The right will scream bloody murder, but won't be able to do anything about it.

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Four. Whatever trump got plus one for Garland. Also make DC a state on day 1.

You're really expecting a landslide, aren't you? Democrats are doing the exact same thing this time they did last time, and they're expecting the virus to save them. It might not happen...

It wouldn't take anything close to a landslide for the senate to flip.

My point is: if the Democrats win the senate and the presidency, it doesn't really matter if Trump fills this vacancy. There is zero doubt they will stack the court when in power if he does.

I hope you're right. Stacking the court with a certain sort of justice would convince a lot of people to give up on this polity. The sooner this threat to humanity can be broken up in smaller parts, the better.

There is plenty of doubt about whether a Democratic majority in the Senate would add seats to the Supreme Court. It would only take a couple of holdouts to stop any bill that does this, and a lot of Senators are really reluctant to do anything that might be construed as rocking the boat.

I absolutely think that Democrats should expand the court, but (along with substantially reforming the filibuster) I don't have great confidence in Senate Democrats to actually do it if the opportunity presents itself.

Write your senators and do your civic duties!

I for one, hope to all hell, this doesn't happen. It would make the supreme court just an extension of any party in power of presidency and senate.

This is also, not to say I want freaking TRUMP to appoint the next justice. I just don't want to see it become a game of who's got the most votes.

I was very opposed to Obama losing his appointment.

I just don't want the precedent of 9 to change.

> I for one, hope to all hell, this doesn't happen. It would make the supreme court just an extension of any party in power of presidency and senate.

I completely agree, but at this point I think it's inevitable.

I, for one, am tired of "precedent" being broken benefiting Republicans and Democrats continually being expected to "take the high road".

The precedent for 9 did change. Republicans changed it to 8 justices in 2016, and then back to 9 again in 2017 because it suited them politically. I don't see why Democrats should be shy about changing the number of justices this point.

The Senate doesn’t actually have to vote to confirm a Supreme Court justice.

> and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court

There is nothing except precedent to say the President can’t just directly appoint justices. And then when the appointments are inevitably challenged, who would ultimately rule on it? The Supreme Court. Tah dah. This is how democracy falls apart.

Proposed patch: in cases like this where all of SCOTUS has an obvious conflict of interest, the decision is made by a single judge who is elected to an N year term by a national popular vote for only this purpose. Democracy saves the day?

I think the patch including a general election is good. But I think say every 5 or 10 years a justice is given an approval vote-have it rotate across the bench and one or two per year, not many. I’d they get less than 67% approval then they’re removed until after the next general election-no fillers until then. Give a time lag to let people consider their first choice before the second choice is made.

See, I actually See a lot to be recommended by adopting a much more proactive management of policy makers through a vote of no confidence than this "get in, blank check til next election" system we have. Though I'd still want to timebox the change to the fundamental political process and only affirm it as permanent until say 15 years of it's successful exercise.

"Advice and Consent". I'm pretty sure "consent" is where we get the need for Senate confirmation, and you'd have to strike that word to allow a direct appointment.

You can lawyer consent to mean a lot of things. Many legal scholars and lawyers argued that the Senate did consent in 2016 when Obama made his nomination. He sent his nomination to the Senate, and they thought about it for 9 months without rejecting, and therefore they consented.

It’s way more open to interpretation than you’re suggesting. It has never been challenged.

Yes, it is not hard to imagine how Trump would have interpreted that precedent if the situation were reversed and the Senate was under Democrat control

That word consent means something...

Like I said, it’s never actually been challenged. Consent can mean a lot of things. For example, if I tell you what I’m going to do, and you don’t say not to do it, did you consent? I could argue yes. You could argue no. This has never been litigated on the subject of a Supreme Court nominee.

And my overall point here is that the Supreme Court would decide whether the move was legal. If the court is now stacked, well that’s just tough shit. There is no other immediate remedy except to amend the constitution. Good luck.

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