JONATHAN TURLEY: Angry Left plots to purge Virginia's high court
After the Virginia Supreme Court rejected the results of the recent Democratic effort to effectively wipe out Republican representation in the state, Democratic pundits and activists have latched onto a proposal by Michigan State law professor Quinn Yeargain to gut the court by forcing the retirement of the current justices, appointing liberal activists, and then reversing the opinion. It is extremely telling that some are pushing the raw muscle play to retake power in Washington, particularly in light of the calls to pack the United States Supreme Court once the party is back in control.
Professor Yeargain declared on Substack that there is "a simple – and lawful – solution: Send the entire court into early retirement." Under this plan, Virginia Democrats would adopt an absurdly low age for retirement in a gut-and-pack scheme: Yeargain suggested that they could set "the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed."
The current retirement age is 73.
Yeargain dismisses that number as "arbitrary" and says that the Democrats need only to "Make it 54 for Supreme Court justices – the age of the youngest justice, Stephen McCullough, who joined the majority opinion – and make it take effect immediately."
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The fact that such an abusive plan is described as "simple" captured the logic of an age of rage. I recently wrote a column in which I warned that "the reversal of fortunes for the party could lead to an even more dangerous agenda" with Democrats pushing for packing the Supreme Court.
In the unlikely chance that this could pass the General Assembly (I am assuming that there remain some things that certain Democratic members just will not do), it would be difficult to engineer before the midterm elections, given the likely challenges. However, it is the inclination of some to try such measures that is chilling.
I noted that Virginia showed how "an independent court can unravel the best-laid plans." Various politicians and professors have advocated radical changes to the political system to ensure the party retains power indefinitely. They acknowledge, however, that the court could likely declare these moves as unconstitutional unless they first take control through a packing scheme.
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The new proposal for the gut-and-pack scheme is even more cynical and brutal. Ironically, the Virginia Supreme Court declared the redistricting effort by the Democrats as not only unconstitutional but "wholly unprecedented in Virginia’s history."
It characterized the state’s position as "a story of the tail wagging the dog that has no tail."
The response of Yeargain and Democratic activists is now to suggest just shooting the dog and adopting a type of politically modified puppy bred to serve.
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Such radical proposals are being rationalized with open disinformation. Pundits regularly fail to mention that the Democrats previously gerrymandered states such as Illinois, Massachusetts and New York while claiming the right to win by any means necessary.
Others just deny reality. Sen. Tim Kaine, D-Va., lashed out at the Virginia Supreme Court and demanded to know why they waited so long to rule on whether there were fundamental flaws in the Democratic plan.
Kaine either never read the opinion or sought to mislead voters. The opinion has an entire section on the timing, noting that it was the Democrats and the commonwealth that demanded that the court wait to rule on the merits until after the election. After "successfully" seeking that delay, they are now accusing the court of something untoward in doing what they demanded.
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Notably, the gut-and-pack scheme sets aside any pretense of principle. The Democrats would simply adopt a ridiculously low retirement age for the sole purpose of populating the court with reliable and robotic justices. The fact that an academic and various pundits would expressly float such an idea is another chilling reminder of the growing radicalization on the left.
These are the "new Jacobins" discussed in my book "Rage and the Republic," figures echoing the radical concepts or means used in France before what became known as "The Terror." "By any means" has become a rallying cry on the left.
Law professors Ryan Doerfler of Harvard and Samuel Moyn of Yale have called for the nation to "reclaim America from constitutionalism." Last December, they published a column titled "It’s Time to Accept that the U.S. Supreme Court is Illegitimate and Must be Replaced."
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Democratic strategists know that the public will not approve of such measures.
Democratic strategist James Carville stated matter-of-factly, "They’re going to recommend that the number of Supreme Court justices go from nine to 13. That’s going to happen, people." He added recently, "Don’t run on it. Don’t talk about it. Just do it."
What is striking about the Virginia proposal is that it is being pushed so openly and unapologetically. Democrats realize that they have alienated half of Virginia already. Republicans and independents are not likely to forget that every major Democrat in their state, including Gov. Abigail Spanberger, sought to erase their very political existence. It is not partisan, it is personal.
In destroying bridges to cross-over voters in the purple state, what is left is raw political brutality. You must dump-and-pump in seeking radical measures to grab power. In the process, no court or institution is sacred in the cause of social and political change.
It is all part of the Nike School of Constitutional Law: Just do it.