October 17, 2020

Republicans are so dependent upon terrifying the population into voting for them, they throw around misnomers like "Court Packing" as if (a) it would be a bad thing, (b) that is what Democrats are suggesting be done, and/or (c) that isn't what they themselves have been essentially doing for years. Elie Mystal joined Tiffany Cross on AM Joy to de-Mystify (HAR) the term, and the reality of what has been happening, along with the very real democratic benefits of what court expansion could mean for our nation's judiciary.

First, Cross rightly pointed out that the GOP's illegitimate and rushed confirmation of Amy Coney Barrett isn't quite "court packing," but then she handed the mic to Mystal.

MYSTAL: Yeah, what Republicans are doing is about court STACKING. What Democrats are proposing is a little bit different. Look, I can make the "Vengeance" argument for court expansion all day long. They denied Garland a hearing. They're putting Amy Coney Barrett through during an election, they've nominated predominantly white, predominantly male judges for four years. I can make the "Vengeance" argument. But I favor court expansion because of its reform possibilities. I want a better Supreme Court, not merely a Supreme Court where I get to win sometimes. So, that's why I favor a court expansion of up to 20 new justices on the Supreme Court. People say, "Oh, that's 29 justices, that's unwieldy!" No, it ain't. That's exactly how many circuit judges the Ninth Circuit Court of Appeals currently has on it. 29 justices is not unwieldy. It's diverse.

The benefit of having more justices is that it fixes the problem that should be obvious to all of us by now. Our confirmation process is broken. It's broken because when one of these octogenarian dies, which is a thing that happens in the world, it presents an existential crisis for the party out of power. Each individual Supreme Court justice, is frankly, too important to our laws and our polity and our rights. If we had 29 justices, each individual death would be less important and it will allow us to get back to confirming judges based on qualifications as opposed to based on agendas. So, that's number one.

Number two thing I just want to say, really quickly, most Americans say they want moderate mainstream opinions, right? Like, that we want the law to be stable and to know what it's going to be. Well, you know how you get there? If you have more judges. Because if I write an opinion, and all I have to do is convince my four archconservative buddies, it's going to come out one way. If I've gotta write an opinion that's gotta convince ten, 15, or 20 people, that's fundamentally a more watered down, more moderate, more mainstream position. I have just explained why Chili's is in business, why Olive Garden is in business, because watered down decisions are made for the benefit of the most people. Court expansion allows us to take down the temperature, literally depoliticize the confirmation battle. It allows us to have more moderate judges, more moderate opinions coming out of the courts.

And, last thing, the way the Ninth Circuit Court of Appeals works, and the way all of our lower circuits work is the case is initially heard by a three-judge panel chosen by -- wait for it -- random lot. That means that when go to court, you don't know the party of the judge you're getting. That would have such good effects on the appearance of impartiality in our court system. So, court expansion is just a way to fix it, and that's why Republicans don't like it, because they're afraid they'll lose. Hell, if we could do court packing, I would be happy to have Republicans, if Republicans want to play ball, I'd be happy to share some of the seats with them. But they don't want to fix it.

Cross agreed, pointing out that in reality, judicial reform is what we need, "after 218 conservative judges." She's right, of course that this is the one and only reason Republicans have stayed with Trump despite his treason, abuse of women, and gleeful contribution to the death of nearly a quarter of a million Americans from COVID-19.

Mystal - especially with his that under-appreciated Olive Garden reference — did a great job of un-PACKING that explanation, though, don't you think?

I'll see myself out.

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