Sanders: Supreme Court Justices Could Be ‘Rotated’ to Lower Courts to Block Abortion Laws

June 28, 2019 Updated: June 28, 2019

Democratic presidential candidate Sen. Bernie Sanders (I-Vt.) has indicated he would overhaul the Supreme Court to block any change to the law on abortion.

Sanders said he believed it would be constitutional to rotate the justices of the Supreme Court with the justices of the lower courts, bringing in “new blood.”

Sanders, who has been wrestling for the second spot in the Democratic field behind clear favorite Joe Biden, floated the plan during a debate between the candidates in Miami on June 27.

“I do not believe in packing the court,” Sanders said, according to a New York Times transcript. “We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”

Sanders provided little detail during the time-limited answer but appeared to refer to one proposal in an array of Supreme Court overhauls by progressive law scholars.

He was responding to a question put to him about what he would do were he to assume office with the landmark Roe V. Wade ruling having already been overturned by the Supreme Court.

Sanders said that his “Medicare for All” legislation would guarantee abortion rights.

He also said he would “never nominate any Supreme Court justice to the Supreme Court unless that justice is 100 percent clear he or she will defend will defend Roe V. Wade.”

A Sanders spokesperson told The Hill that Sanders’s plan to reform the courts “would be to rotate Supreme Court justices down to circuit courts after a set term limit, serving out the remainder of their lifetime appointment in lower courts.”

Preet Bharara, who once served as U.S. attorney for the Southern District of New York, questioned the idea, asking on Twitter whether he was “missing something.”

Others were also confused by exactly what Sanders was proposing.

“No, Bernie Sanders, You can’t just rotate Supreme Court justices until you get the mix you want,” wrote Len Crothers, Professor of Politics and Government. “That was a really, really, really, really wacky idea.”

Sanders also spoke of rotating Supreme Court justices in April in Washington. The rotation appears similar to one of a series of possible refits to the Supreme Court system laid out by Daniel Epps and Ganesh Sitaraman in an article in Vox.

“Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court ‘panel’ would be composed of nine justices, selected at random from the full pool of associate justices,” Epps and Sitaraman wrote. “Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.”

Unlike Sanders, the scholars framed the need for Supreme Court reforms as a bulwark against partisan politics as a whole.

“The Court has never been completely disconnected from politics, but the past several decades represent a dangerous swing in a deeply partisan direction.”

However, they said that a “crisis truly arrived” with the arrival of the Trump-selected Kavanaugh.

“Now President Trump’s two nominations guarantee a solidly conservative Court that we should expect to reliably decide cases—especially hot-button cases—along party lines. This will make it very difficult for many to see the Supreme Court as anything but a set of political actors making partisan judgments.”

But President Trump doesn’t appear to be concerned with any criticism of putting additional conservative judges on the Supreme Court.

Trump said earlier this week he would “definitely” fill another Supreme Court vacancy if one opened up prior to the 2020 presidential election.

“We have the Senate. We have a great Senate,” the president told The Hill. “We have great people. If we could get him approved, I would definitely do it. … If there were three days left [before the 2020 election], I’d put somebody up hoping that I could get ’em done in three days, OK?”

Correction: A previous version of this article incorrectly stated the state that Sen. Bernie Sanders (I-Vt.) represents. The Epoch Times regrets the error.

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