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Suddenly, the GOP wants to pack some courts
Funny how that works.
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Given how often it happens, it can feel futile to call out the GOP for its rank hypocrisy. But sometimes, the party’s actions are so blatant that they can’t be overlooked. Witness what is happening in Texas right now, where the Texas GOP is suddenly very interested in expanding the courts.
But only Texas state courts.
When the possibility of expanding the US Supreme Court is discussed, some Texans are decidedly less enthusiastic. Indeed, last month Ted Cruz proposed a constitutional amendment that would fix the number of seats on the Supreme Court at nine forever … or at least until a new constitutional amendment came along. Cruz called any expansion of the court an attempt to “rig the game... fix the system." Texas’s other GOP senator, John Cornyn, is so opposed to expansion he has a special landing page on his website saying Biden shouldn’t pack the court. Cornyn also tweeted that “Packing the Supreme Court would fit the Democrats’ escalating pattern of breaking political norms on judicial nominations.”
This is darkly hilarious from the party that refused to allow then-President Obama to fill Justice Antonin Scalia’s seat in March 2016, arguing it was too close to the election, then rammed through Amy Coney Barrett a scant 13 days before the 2020 presidential election.
This hypocrisy makes sense, however, when you realize that the GOP — and the Texas GOP in particular — no longer has an interest in treating courts like democratic institutions. Rather, courts are tools to get what they want. Conservatives have had an absolutely spectacular run in the federal courts once Trump stuffed them with right-wingers. So why not replicate that success at the state level?
Which brings us back to Texas.
Texas Republicans try to rig the courts
The GOP-controlled legislature has proposed two bills that would radically reshape the judicial landscape in Texas. The first would be a trial court called Business Court. Rather than covering a specific district, as other trial courts in Texas do, the Business Court would cover all judicial districts in the state, making it a weird statewide trial court, but only for business disputes over $10 million. The other would be an appellate court, the Fifteenth Court of Appeals. That court would hear appeals from the new Business Court. It would also hear any appeals related to lawsuits against the state government and any challenges as to the constitutionality of a Texas law.
The Business Court would be made up not of elected judges, as Texas currently selects judges, where the people in each district vote for their choice. Instead, Texas Gov. Greg Abbott would appoint all seven judges on the Business Court for two-year terms. The only restriction on Abbott’s power would be that he couldn’t appoint more than three judges from the same county. As Michael Smith of the Texas chapter of the American Board of Trial Advocates explained to the Texas Tribune, this would create a court highly vulnerable to political pressure because companies with a case before the court could try to sway Abbott to nominate a friendly judge.
For the Business Court, this is nothing but a giveaway to big business. Right now, business disputes are heard, by and large, wherever the dispute arises. This would create a special court that functions as a justice system for big companies with big claims, with judges handpicked by Greg Abbott. And that’s not really justice; that’s gaming the system.
The proposal for the Fifteenth Court of Appeal is, arguably, even worse. Right now, if you sue the government in Texas, you typically have to do so where the state capital is located. If there is an appeal, it goes to the Third Court of Appeals, based in Austin, and the judges in Austin are, of course, elected by the citizens of Austin and the surrounding areas. The Fifteenth Court of Appeals, unlike all other courts of appeal in the state, would be elected statewide, and Democrats haven’t won a statewide office there in nearly 30 years. It’s another way for the GOP to rig the game, getting cases out of a court that is perceived as liberal and shifting it to one that will likely lean conservative. Particularly in the case of lawsuits against the state and lawsuits over the constitutionality of statutes, this is a move designed to radically change the composition of who assesses those cases, all but guaranteeing that GOP judges will have the power to just rubber-stamp laws passed by the GOP legislature.
Laboratories of authoritarianism
Texas isn’t alone in this behavior, where a conservative state legislature tries to undercut the will and power of the blue cities. Sometimes, though, it seems the GOP is operating from pure resentment rather than just a dedication to enforcing their minoritarian rule. For example, Tennessee just tried to cut the Nashville Metropolitan Council in half, from 40 council members to 20. The reason? Because Nashville didn’t want to host the 2024 Republican National Convention. The county Nashville is located in, Davidson, went overwhelmingly for Biden, with roughly double the county’s citizens choosing him over Trump. Of course, the city had no interest in hosting the RNC, and they’re certainly not obliged to. Three Tennessee judges blocked the plan, noting that the general election for Davidson County is less than four months away and the notion that somehow 40 districts could be redrawn to 20 on the fly is unworkable.
Another bill in Tennessee’s GOP-controlled legislature also proposed renaming a portion of John Lewis Way to Trump Boulevard. Thankfully, that’s been shelved for now, but the mere proposal is, in a word, disgusting. John Lewis is one of the great heroes of the civil rights movement and an adopted son of Nashville, where he led lunch counter sit-ins starting in 1960. Proposing that be thrown out to namecheck Trump, a person with no history in Tennessee whatsoever save for carrying the state, is not the behavior of serious people.
Where Texas wants to remake its courts and Tennessee wants to destroy local control, Ohio has taken a different approach: making it harder for citizens to get a referendum on the ballot. This is in direct response to reproductive health groups in the state trying to get a ballot initiative on abortion on the November 2023 statewide ballot.
Since the Supreme Court overturned Roe v. Wade in June 2022, banning abortion has not been the winning issue Republicans hoped it would be. In August 2022, the voters in Kansas soundly defeated a proposal to alter the state’s constitution to say there was no right to an abortion. In November 2022, Kentucky voters did the same.
Ohio’s GOP-controlled legislature is looking to ensure that pro-choice forces don’t prevail there. They hope to ensure the proposed pro-choice amendment is defeated by increasing the threshold of votes necessary to approve a ballot initiative amending the constitution, raising it from 50% to 60%. The state senate has also proposed changing the requirements for signature gathering, requiring that signatures be collected from all 88 counties rather than the current 44.
At the state level, then, Republicans are currently attacking the courts, local government, and statewide voter participation. It’s profoundly anti-democratic and shows a deep disregard for the will of the voters — especially, but not exclusively, liberal voters. But, when you can’t win because you have terrible policies, you have to change the rules. All of them, apparently.
That’s it for today
Aaron, who needed a weekend off, will be back with more Wednesday.
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