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Yeah, I don't imagine any concessions from Republicans unless forced to it. They've finally managed to get a hold of the court, after nearly a century of leftist control, and now, all of a sudden, it's everyone's talking about how the justices (but only the conservative ones) are corrupt, and how the court's extreme and biased (never mind all the different splits), and that the court needs to be reformed. There's something of a double standard. (And I do genuinely think that the conservative justices are less likely to make decisions from their political views, because they have more of a judicial philosophy of the senses of the text already being set in stone, not just what they want it to be.)
Regarding propriety and trips and so forth: I'm kind of torn over how seriously this should be taken. It's obviously politically motivated and going looking to do harm to the justices that they hate, and I'd be very surprised if there were anything nefarious going on. I'd certainly not expect him to be influenced by money; he seems to always be ruling for his own, radical in its lack of regard for precedent, vision of what the constitution said, often alone. I certainly imagine he talks politics with Crowe, but I'd be surprised if that affected his jurisprudence, as he doesn't just rule according to whatever suits current Republican preferences. And I don't know that I think it's all that good of an idea to reward bad action from the left like that, when I'm pretty sure that it wouldn't have affected anything. I'm curious how general the recent lesson is about other figures on the right, that you can ignore cancellation now, so long as you have a conservative base, and you don't treat the problems as serious just because your opponents treat them as serious. That is, I don't know if treating them as real would simply serve to undermine tte court's credibility by there being a consensus that something is wrong. At the same time, it would genuinely be better if there wasn't this that could be used to attack them.
I also like the questions, but I don't know how well they would be applied in practice. I anticipate that those in Congress would use them in order to probe for weaknesses to jump on, and so the judicial nominees would try to answer in ways that said the least that they could be attacked for, instead of seeking to be the most revealing.
For the reasons above I'd be hesitant to go along with a push to constitutionally reform the court—capitulating would give credence to the complaints and make people more likely to think that the court is currently bad, when, in my view, it's the best court we've had in a long while. If it would genuinely make it hard to complain about the court, I'd be for it, but I don't expect that, and would anticipate the opposite. I'd also worry that something like term limits would serve to further politicize the court, by enshrining in law something intended to balance the court in a partisan manner, instead of just assuming that everyone has an obligation to be fair interpreters.
Something of a double standard, maybe, but not all the way. Right-wing people for years have complained about the Court doing too much that is legislation-adjacent, doing outright activism, or imposing liberal social values, and those arguments were accompanied by arguments about maybe not corruption as explicitly, but certainly ideological capture and bias (claims that all the liberal colleges are brainwashing law students, and I think there were complaints about lifelong appointments too). We have conveniently forgotten these argument simply because they haven't happened as loudly recently, but I do remember them! They probably aren't exactly equal to current complaints.
I like your comment and the thoughtfulness there. It's possible my dream of avoiding even the appearance of impropriety is unrealistic, but I don't think so. Ideally, court reform conversations would be actual conversations, where we can talk about exactly this sort of thing like "are term limits even going to be helpful, or would they backfire?" This can cause us to rationally examine what parts of the SC do and don't work. We might find some parts actually DO work better than the public thinks, in the process. In other words, I think opening reform as a valid discussion would result in more light than heat. There's already plenty of heat and I think legitimizing the discussion might be a good release valve. Related: somewhat unusually, I don't love the idea of term limits for Congresspeople, I think it would only worsen the revolving door, and ignores how lawmakers also gain positive experience and specializations over time. Monetary reform for campaigns and politics generally might be a better Amendment candidate. Or simply pushing for better stock divestment, etc.
The idea behind the questions is that the current questioning process is relatively effective about determining left-right axis location, but not very effective in determining the other axes. As shown in some of the discussions here, many justices form their own brands, and there's stuff like the 3-3-3 split. Maybe better questions can allow the Senate to be more predictive in locating a nominee's position on other axes besides the simple and often ill-suited ideological one.
Allow me to take back the concessions I made on Thomas.
Fix the Court gives me the vibe of a one or two person outfit with strong personal views. I think they were and are an okay starting point for tracking recusals more broadly, which was my reference. I don't think I ever used them as a source, and probably would not use them as a source, for more of the in detail financial reporting about gifts. ProPublica is a stronger team and I think they are doing good work that's fairly evenhanded. They usually state what they know and approximately how certain they are (e.g. they will say if they looked at direct proof, it's hearsay, they found corroboration of trip, etc.) I've read almost all of their stuff all the way through, and a few counterclaims all the way through as well. Now don't get me wrong, it's not like they are saints without an agenda. But I feel they typically adhere to decently good journalistic standards, near as I can tell.
IMO, the link provided does a guilt by association trick, combined with a strawman. It talks about FTC almost the entire article, when they aren't really the experts nor the original source for most of the scandal claims. In fact I expect FTC to have errors. ProPublica less so. What it says specifically about ProPublica, a drive-by broadside right at the end:
I happen to know exactly what they are talking about in the second article. The article cited refers readers to some of the earlier reporting and assumes readers read those. The original reporting that first broke the trips went into extreme detail about exactly what the rules and laws were about trips (which often differed) and the ethical debate behind them. I think they thought, and I partially agree, that re-treading the same ground in an article framed explicitly as an update to a previous story was less necessary. The update article cited is only like two pages. The original investigation was something more like 20 pages. Obviously the original can go into more detail. And in the original articles, you can clearly see that they advance the (substantive!) argument that rules allowing transportation to not be disclosed are not only something that seems unethical to the average person, but furthermore, cruises and yacht trips are not only transportation, they are also lodging. Again, I refer you to my argument that we want to hold SC justices to a "appearance of impropriety" higher standard, which is not just my projection or wish, it's the explicit policy goal of the Supreme Court ITSELF. Why would it be bad to hold them to their own moral standard?
The inclusion of a single error also deliberately ignores quite a few cases where, as PP mentions, they actually did find legitimate issues that various Justices later fixed. A single error on a single trip does not discredit the reporting. Most of their reporting focused on a few other examples where more info was available. For example, the numerous luxury retreats. Or the New Zealand yacht trip that did happen, and wasn't disclosed, and we know for a fact this happened because, among other evidence, we have a photo of Thomas' handwritten thank you in a book he gave to a yacht worker mentioning the trip. And finally, a smear is not a smear if... it's true. Their main point is that there is no enforcement mechanism for ethics rules, that at least some justices are skirting common-sense disclosures due to rule technicalities, and the fact that we can only find out about these concerning things via extensive and laborious investigation is, yes, concerning for everyone!
Good points. I imagine propublica is of course motivated and lopsided in attention given, but that makes sense that their work would be better quality.
And, thanks for always being reasonable.
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You're right that there were complaints both ways about judicial activism. I happen to think the left does more of it, and is more openly motivated by whatever they want to be true, but fair enough.
I think more policy conversations in general would be good. But how would you propose they happen? I think, perhaps unusually in our history, though I'm not sure about that, a lot of politics is governed by the lowest common denominator: whatever appeals to the most people online, oriented towards their respective bases. (That's not exactly right, but close enough). How do you manage a constructive conversation like that? You could have one, but you'd have to avoid making it about scoring points. I'm sure some politicians are sincere enough and sufficiently non-cynical to do this. But even then, you'd still have to make it be something that reaches the collective consciousness to get traction, unless you can manage to get enough behind the scenes. But it's popular legitimacy that matters mostly when we're looking at it from the view of the polarization of the discourse, not what Congress, for example, thinks, so behind-the-scenes isn't quite what we're asking for here.
I like the Free Press's debates, even if there used to be better debates.
Good point regarding questions. Having them asked by a sympathetic person would help.
Ideally, we would hold some sort of convention in total secrecy, then the convention would release a list of possible proposals for reform and ask the public which option they would prefer. We could then have a period of public parlor talk and debate. If the big parties avoided immediately staking out a stance, I think there would be a decent chance of people selecting a favorite. The convention system is sadly almost never used anymore, but can be very effective.
Ah, conventions would help. Hardly anything else could get the requisite solemnity.
Some difficulties: it requires people to work together, and in an age of the internet, complete secrecy is hard to maintain.
And of course, whether online partisans will promptly polarize the question.
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