Monday, September 28, 2020

Fixing the Court

 A lot of discussion among Democrats over what to do about a Supreme Court with a 6-3 conservative majority.

I'd suggest one strategy not much discussed, which assumes Biden/Harris win and the Democrats gain a Senate majority:

  • end the filibuster in the Senate (might be problematic, given their moderates who might be reluctant).
  • spend time fixing the vulnerabilities in important legislation, like ACA and Clean Air, etc. 
My theory is this: over the last 4 years and more, conservatives have filed enough court cases and the Trump administration has changed enough administrative rules that good lawyers can identify the weak points.  Rather than rely on defending rules in the court, preempt the challenges by fixing them.  If the challenge is that the agency, EPA, etc., has exceeded its authority under the law, change the law to provide the authority.  If the challenge is that Congress has exceeded its authority under the Constitution, change the law to rest on a firmer basis.

What's iffy about this strategy is, of course: Roe v Wade. Although polls suggest a majority support its general outline, trying to legislate it would be like gun control.  The fierce minority would prevail over the majority.  I could suggest a compromise which appears reasonable to me, but it's a matter of principle for the opponents.  What would my hopeless compromise be?  Clinton used to say "legal, safe, and rare".  I'd think a compromise which added "early" to the formula should work, except it won't. If you had taxpayer funded abortions in the first trimester with over-the-counter of the "day-after" pill , then court-approved abortions for the next two with the basis being restricted (health and safety, rape, unusual circumstances), perhaps with a prescribed role for a voice for an advocate for the fetus, and taxpayer funding of pre-natal care for those who lose their case for abortion.

The details don't matter, because for people on both sides it's too basic an issue of rights to agree to a compromise.

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