Dahlia Litwick and Claire McCaskill talk about options the next Congress has to reign in the right-wing courts.
September 13, 2022

Lawrence O'Donnell talked about the crisis of legitimacy in the Supreme Court last night.

"Claire McCaskill, John Roberts just doesn't get it, he doesn't get the difference between disagreeing with opinions of the court and questioning the legitimacy," O'Donnell said.

"This is a guy who is very out of touch. Let me count the ways that legitimacy can be questioned. First, people were put on the court with a political 2x4 wielded by Mitch McConnell. First, by denying a sitting president an opportunity to name a Supreme Court justice, first time in history. Second, by installing a judge right before a presidential election, never before in history. And third, he's got a guy sitting on the Supreme Court whose wife is helping plot the overthrow the government, and then they overturn a right that women had in this country for 50 years. It is unbelievable how bad it is," McCaskill said.

He asked Dahlia Lithwick about her proposed solutions.

"Not just the supreme court, which is legislatively possible, but difficult. But the lower courts, including the district courts, for example the district courts in Florida where Donald Trump right now has very own judges doing everything she possibly can for him. One of the ironies of the special prosecutor, the special master in this case, is that in 1986, Ronald Reagan was able to appoint him to a federal judgeship that did not exist the year before, because it was created in an expansion, exactly the kind of expansion you are talking about in the district courts," he said.

"The courts have been expanded historically overtime. Not just the district courts, but the Supreme Court, the number has not been static either," Lithwick said.

"And in fact, the judicial conference, which is the nonpartisan party that developed policy for the courts, is begging for expansion of the lower federal courts, because of the backlog. Unless you are Donald Trump, you can wait for years to be heard in court. And so there are a whole bunch of measures, whether it is jurisdiction stripping, whether it is adding seats to the bench, whether it is protecting the voting rights for judicial intervention. A lot of things that can be done, and I think that the days of wringing our hands and saying that we have to live under the some of Trump judges for eternity because nothing can be done, those days need to end now. There are a whole bunch of things that need to be done, and we have to stop talking about them as abstractions," she said.

"If the Democrats add two senators to their count, get up to 52 senators in the Senate, will they be able to expand the courts?" he asked McCaskill.

"I don't think so. I do not believe that there will be enough votes to do that, but I do think that there is an opportunity to talk about all of the ethics reform, term limits, and maybe age limits since the lifelong appointment has really gone out of fashion, especially for this Supreme Court."

Sen. Sheldon Whitehouse has also been pounding the issue of court ethics for a long time. He wrote on Twitter yesterday:

"If Roberts can investigate the Alito draft leak, can’t he investigate the now double-barreled Thomas recusal issue? And if not, doesn’t that belie the theory that the Court can clean up its own messes? And if it can’t, doesn’t that prove the need for Congress to step in?

"My Supreme Court Ethics, Recusal, and Transparency Act would finally require the rest of the justices to weigh in on recusal issues.

"Don’t like that? How about an independent review? Chief judges of the eleven Circuits form an ethics panel with power to hear complaints, investigate and make public findings and recommendations.

"Supreme Court justices would not be bound, but would be hard pressed to ignore public findings and recommendations of such a panel.

"There are lots of options for finally restoring integrity at the Court but this much is undeniable: the Court’s ethics omerta is both wrong and unsustainable."

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