Wednesday, April 17, 2019

An Idea Worthy Of Buttigieg

For the love of God (possibly this politician's favorite phrase), please stop:

Protesters shouting about "Sodom and Gomorrah" interrupted South Bend, Indiana, Mayor Pete Buttigieg on Tuesday at an Iowa campaign rally.

Buttigieg hopes to become the first openly gay president in American history.

One of the men who shouted about the biblical cities destroyed by God's wrath for their sinful ways was Randall Terry, a Christian activist who founded the anti-abortion rights group Operation Rescue. The organization says it split with him 18 years ago and now considers him too radical.

The crowd at the Des Moines rally drowned out Terry's shouts by cheering Buttigieg’s name.

"The good news is, the condition of my soul is in the hands of God, but the Iowa caucuses are up to you," an unshaken Buttigieg responded, pointing at the crowd.

CNN's Jeff Zeleny reported that Buttigieg was interrupted three times by protesters and that they were all affiliated with Terry.

Randall Terry has to stop. He must stop not only because this is clearly intolerant. He must stop also because they can boomerang.

Pete Buttigieg is unusually quick on his feet as it is. And, unless his IQ is 100 points or so lower than suspected, he knew that he would face criticism, ridicule, or catcalls because he is gay. Moreover, this being the Democratic Party primary process rather than a general election including Independents and Republicans, calling attention to the mayor's sexual preference can only increase his popularity.

That would not be a good thing, and not only because Buttigieg's record as mayor has been, generously speaking, mixed.  Buttigieg,  well-informed, witty, civil, gay, and short, would like you to believe that he is the antidote to Donald Trump.

Nonetheless, there is one area, far more important than height or sexual preference, in which they are alike.

They both seem to have a problem with the United States Constitution. For Trump, in the matter of emoluments, immigration, and so much else, it is obvious. Not coincidentally, his Attorney General, who acts as the President's personal attorney rather than the nation's attorney, has the same allergy. Consider  

Amanda Marcotte argues that the offense cited is equivalent to a traffic ticket.  However, while a visa overstay is a mere civil offense, illegal entry is a Class B misdemeanor, roughly equivalent to what possession of a small amount of marijuana or stealing a loaf of bread would be on the state level. Still, not terribly serious- and individuals who apply for asylum have complied with the established, legal process and have broken no law.

Pete Buttigieg also has a bad court-related idea, an appellate rotation plan to increase the size of the Supreme Court, about which Mark David Stern explains

Also called the 5-5-5 plan or the “balanced court solution,” the 10 partisan justices would pick the remaining five justices from the federal courts of appeals and would need to select them unanimously. If the 10 partisans could not agree, they would lack a quorum to hear any cases. The Supreme Court’s work would grind to a halt until they reached a compromise.

One problem is immediately evident. Republicans being Republicans and Democrats being Democrats, the Democratic Justices would be tempted to acquiesce in the choice of the GOP Justices in order to allow court work to precede unimpeded. (Norms and the rule of law, you know.)

Assessing the proposal as a lawyer, Stern notes

This plan’s appeal is obvious—it gives neither party an advantage and thus avoids the judicial arms race that could result from straightforward court packing. Its flaw, however, is fatal. As Pack the Courts has explained in a white paper, the Constitution’s Appointments Clause declares that the president “shall appoint” Supreme Court justices “with the Advice and Consent of the Senate.” The justices themselves have no power to appoint other justices; that authority is explicitly assigned to the president alone. If Congress forced the president to share appointment power with the justices, it would radically alter a key constitutional procedure. That cannot be done by mere legislation. It requires nothing less than a constitutional amendment.

Pivoting from the legal to the strategic, Stern recognizes that appellate rotation

sounds technocratic and centrist. Buttigieg insists that he does not want to “make the court more progressive” but rather wishes to “arrest the decline in the perception of the court toward being viewed as a nakedly political institution.” Appellate rotation “takes the politics out of it a little bit,” making it the “most intriguing” option to him. “If we want to save that institution,” Buttigieg asserts, “I think we better be ready to tune it up as well.”

That line might poll well, but it’s the wrong way of looking at court reform—and not just because the “most intriguing” option is also unconstitutional. Buttigieg may not want to cross the Rubicon of altering the makeup of the Supreme Court, but Republicans already blew past that norm. In 2016, Republicans proposed, and partially enacted, their own version of court reform by refusing to even hold hearings for Garland. The GOP effectively shrank the size of the court to eight seats for more than a year, resulting in deadlocks that hobbled the court’s work. Then, multiple Republican senators—including John McCain, Ted Cruz, and Richard Burr—announced that they would not confirm any nominee put forward by Hillary Clinton if she won the presidency. Burr said he would “do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” Sympathetic commentators like Ilya Shapiro cheered them on, arguing that it would be “honorable” for the Senate to refuse to confirm Clinton’s nominees and “let the Supreme Court die out, literally.”

It's an idea that's unconstitutional, dependent on Republican good faith, and redolent of an individual who is afraid to wield power:

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