Seattle University law prof: For civility, we should restore filibuster and not pack the court

Sep 22, 2020, 5:09 AM

Supreme Court, filibuster, ginsburg...

People gather at the Supreme Court in Washington, to honor the late Justice Ruth Bader Ginsburg. (AP Photo/J. Scott Applewhite, File)

(AP Photo/J. Scott Applewhite, File)

The recent passing of Ruth Bader Ginsburg is causing many to re-explore notions of packing the court, the filibuster, and setting up some sort of limit on how long justices serve. What is best for the health of the nation going forward?

Seattle University law professor Brooke Coleman joined the Gee and Ursula Show to discuss this and how she hopes we can return to more civility.

“Congress can do these things. They can expand the size of the court. We almost did with FDR, so it’s a possibility. And of course, we can put term limits on the court or try to stack them. I guess I’m just a purist at heart, and I think that what I would rather see is going back to RBG’s incrementalism and how she was thoughtful about norms and rules — I wish everybody could just kind of put their weapons down,” Coleman said.

“I really wish that in this moment we could agree, no matter what happens with Ruth Bader Ginsburg’s appointment, we put the filibuster back into place for the appointment at all levels of the federal court, district, appellate, and Supreme Court,” she added. “So that we get back to the day when we actually had nominations that required consensus and that everybody just go back to that system. And I think Ruth Bader Ginsburg would say the same thing.”

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Professor Coleman says these norms exist for a reason, and preserving helps to ensure a level of civility no matter who’s in power.

“There is a three branch system for a reason — we need to have these norms in place so that there’s not minority rule, but also so that there’s some kind of amount of consensus before we pass these nominations and that we keep the court the way it is. We don’t pack it. We don’t put these term limits in. We go back to a time where there was much more civility and common ground that people would find in both the House and the Senate,” she said.

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“I think if that happened, we could avoid these conversations about taking these extreme measures because, honestly, where does that end? Do we have a court of 50 people? I mean, at some level it has to stop,” Coleman added.

What’s important, she says, is people feeling like they have access and a say in the system, even if they don’t always get their way.

“I understand that it’s frustrating when you lose or when you don’t get the better of the argument and you don’t get your way,” she said. “But again, there’s a system in place, and I think if that system is working fairly and people feel like they have access to it, they can deal with these losses along the way. The problem is that, of course, we feel in both the House and the Senate that we’re not represented, women aren’t represented, people of color aren’t represented. If there was a sense that we felt represented in that way, then I think we’d be a lot more amenable to taking some of these losses.”

Listen to the Gee and Ursula Show weekday mornings from 9 a.m. – 12 p.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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Seattle University law prof: For civility, we should restore filibuster and not pack the court