The War for the Supreme Court (Ginsburg is dead)

[malchior]

Republicans/Trump are presumably not going to want to push someone in through before Election Day. Apart from the terrible optics, they're going to want to give conservative voters a reason to vote for them (and this will push turnout up). Also, some Republicans in tight races might vote against it.

The question is, what happens between Election Day and Inauguration Day (assuming trump loses and Democrats pick up the Senate)?

Not too sure about this administration caring about the optics. Packing the court with conservative judges is a huge “promises kept” thing. Nothing like demonstrating his power to convince conservatives unhappy with his performance with COVID-19 that he’s the guy that has cemented the legal conservative legacy for decades to come.

The idea that the GOP would somehow start caring about optics right now is baffling to me.

This is their dream scenario, the ultimate stigginit.

The GOP has been exercising unrestrained power for years but this is a bridge too far? They are monsters. Expect them to be utterly ruthless.

[Grifman]

Another scary note. Trump has been hounding Biden to put out a list of his Supreme Court nominees. Was that show or did they know she was on her death bed? They may have already seized the advantage. And they have all the advantage they need.

You don't have to believe in conspiracy theories. It's been obvious that given her age and health, she could go at any time. Trump was just trying to remind his base about the Supreme Court to get them to turn out.

[Holman]

Of course, here's the argument against packing the court:

https://www.nbcnews.com/think/opinion/w ... ncna992851

1869 was a long time ago. As with most of the Constitution, the future demands revision.

In the mid-nineteenth century, Supreme Court justices would be appointed after a long and mature career and could then be expected to die before their 80s. The average tenure of all justices prior the current incumbents is under 17 years.

Brett Kavanaugh will probably get at least 30.

Increasing lifespans and a tendency to strategically appoint younger justices warps the historical progress of the court. This makes the "perfect balance" of nine justices something different than it was 150 years ago.

You've asserting a need for change without specifying if there any real reason beyond "packing the court". If 9 isn't the right number, what is and why (if there is an answer beyond pure political needs)?

The problem is what is to prevent the Republicans from packing the court whenever they take control again. You're not really solving the problem. Expand the court to 12, well, why not 15 for the Republicans? 0r 21 for the next Democratic winners? Where exactly does this stop?

Turn that around. If Trump wins and keeps the Senate, what prevents them from deciding that MAGA requires adding three new conservative justices, just to be sure? After all, Roberts and Gorsuch are a bit unreliable on the most important issues, aren't they?

My point is that Republican norm-busting around RBG (rushing an appointment just before the election or during the lame duck session, take your pick) requires norm revision by Democrats. And I think most Americans would see this as restoring a balance, not wrecking it.

[malchior]

Seriously. This is it guys.

[Alefroth]

Smart, as always, but I'm not sure it will have any effect.

[malchior]

Another scary note. Trump has been hounding Biden to put out a list of his Supreme Court nominees. Was that show or did they know she was on her death bed? They may have already seized the advantage. And they have all the advantage they need.

You don't have to believe in conspiracy theories. It's been obvious that given her age and health, she could go at any time. Trump was just trying to remind his base about the Supreme Court to get them to turn out.

How is this a conspiracy theory? It is plausible given the GOP brand of shameless bare knuckle politics. Someone might have gotten wind that she was much sicker than we knew and they cooked up a strategy. He is allegedly dropping a pick in a couple of days. It is naive to think they didn't have a game plan *if* they knew she was dying. These guys are not fucking around.

[Grifman]

And I think most Americans would see this as restoring a balance, not wrecking it.

Nope, Democrats would see it that way, Republicans wouldn't. There is no longer any reasonable middle to appeal to.

[Enough]

Murkowski put out a statement saying she won’t vote on a judge until after the election, but I suppose that still means she could during a lame duck session.

That still helps, but now the stakes of this election are crystal clear for any unmotivated Trump-fatigued Republican voters and it could change the calculus in multiple Senate races. I am guessing the left is already pretty motivated to vote given the last four years.

[malchior]

And I think most Americans would see this as restoring a balance, not wrecking it.

Nope, Democrats would see it that way, Republicans wouldn't. There is no longer any reasonable middle to appeal to.

What is the reasonable middle in this situation?

[Grifman]

Another scary note. Trump has been hounding Biden to put out a list of his Supreme Court nominees. Was that show or did they know she was on her death bed? They may have already seized the advantage. And they have all the advantage they need.

You don't have to believe in conspiracy theories. It's been obvious that given her age and health, she could go at any time. Trump was just trying to remind his base about the Supreme Court to get them to turn out.

How is this a conspiracy theory? It is plausible given the GOP brand of shameless bare knuckle politics. Someone might have gotten wind that she was much sicker than we knew and they cooked up a strategy. He is allegedly dropping a pick in a couple of days. It is naive to think they didn't have a game plan *if* they knew she was dying. These guys are not fucking around.

I'm certain they had a game plan, but there's no reason to believe it was based upon some prior secret knowledge of her health. She's in her nineties and had multiple incidences of cancer. It wouldn't take a medical degree or secret knowledge of her health to suspect she might die at any point in time before the next president takes office. Anyone, even Trump could figure that out. I have no doubt that have been planning for this just in case.

[Smoove_B]

What is the reasonable middle in this situation?

Exactly. We're in a winner-takes all stiggin' it death spiral. It won't surprise me if he names Jerry Falwell Jr. at this point.

[Little Raven]

As I said in a previous thread, once politicians start packing the courts, democracy is usually dead on the table is fairly short order. As Grifman points out - that's a slide you cannot stop. There's a reason even FDR declined to cross that line.

Even in the worst case scenario, where one more conservative judge joins the Court, the Democrats would be stupid to try packing. The Supreme Court is not a very partisan organization, and frankly, it's the wrong place to go looking for policy changes. It's certainly not worth blowing the country up over.

[Grifman]

And I think most Americans would see this as restoring a balance, not wrecking it.

Nope, Democrats would see it that way, Republicans wouldn't. There is no longer any reasonable middle to appeal to.

What is the reasonable middle in this situation?

There isn't one which is my point. "Most" American won't see a packing of the court as restoring balance because the partisan lines are too sharply drawn. It will be purely upon partisan lines.

[Little Raven]

Exactly. We're in a winner-takes all stiggin' it death spiral. It won't surprise me if he names Jerry Falwell Jr. at this point.

That's actually the best case scenario. If Trump nominates a true incompetent, then I think the Democrats have a reasonable change of peeling off enough Republican votes to block things.

But his last two nominations were perfectly solid, legally speaking. If he finds another highly accomplished (but still Conservative) judge, then I think it will be much harder to stop.

[malchior]

Another scary note. Trump has been hounding Biden to put out a list of his Supreme Court nominees. Was that show or did they know she was on her death bed? They may have already seized the advantage. And they have all the advantage they need.

You don't have to believe in conspiracy theories. It's been obvious that given her age and health, she could go at any time. Trump was just trying to remind his base about the Supreme Court to get them to turn out.

How is this a conspiracy theory? It is plausible given the GOP brand of shameless bare knuckle politics. Someone might have gotten wind that she was much sicker than we knew and they cooked up a strategy. He is allegedly dropping a pick in a couple of days. It is naive to think they didn't have a game plan *if* they knew she was dying. These guys are not fucking around.

I'm certain they had a game plan, but there's no reason to believe it was based upon some prior secret knowledge of her health. She's in her nineties and had multiple incidences of cancer. It wouldn't take a medical degree or secret knowledge of her health to suspect she might die at any point in time before the next president takes office. Anyone, even Trump could figure that out. I have no doubt that have been planning for this just in case.

Yes but he was specifically pushing on this hard ... *this week*. Maybe it is Trump's endless dumb luck but they could also be way ahead of the Democrats on this.

[Grifman]

Yes but he was specifically pushing on this hard ... *this week*. Maybe it is Trump's endless dumb luck but they could also be way ahead of the Democrats on this.

So what? Even if you are right and they had foreknowledge, what does it matter? How is Trump "way ahead" on this matter? The Republicans are going to choose the next SCJ and have obviously been planning for it - McConnell has admitted as much. Both parties will be fighting mad and both will try to use it to boost turn out. I don't see how any secret foreknowledge really changes anything of any substance.

[$iljanus]

And I think most Americans would see this as restoring a balance, not wrecking it.

Nope, Democrats would see it that way, Republicans wouldn't. There is no longer any reasonable middle to appeal to.

What is the reasonable middle in this situation?

The reasonable middle went right out the fucking window when Obama was denied his reasonable right to have his nominee confirmed by the Senate.

[Holman]

If the GOP rushes through an appointment now, it will mean abandoning +definitely+ +declared+ principles for political advantage.

If the Dems win the Senate and pack the courts, it will mean sidestepping -vaguely- -presumed- principles for political advantage.

If the former costs the GOP nothing, Dems shouldn't expect the latter to cost them anything.

[Grifman]

If the GOP rushes through an appointment now, it will mean abandoning +definitely+ +declared+ principles for political advantage.

If the Dems win the Senate and pack the courts, it will mean sidestepping -vaguely- -presumed- principles for political advantage.

If the former costs the GOP nothing, Dems shouldn't expect the latter to cost them anything.

it's now what it costs the Democrats, it's what it costs the country in the long term. Another example of short term gain vs long term pain.

[Skinypupy]

The fact that one person dying pushes us this close to complete chaos says a lot about how much change is truly needed.

(Not that any change will actually occur, mind you.)

[Little Raven]

If the former costs the GOP nothing, Dems shouldn't expect the latter to cost them anything.

This isn't about what it might "cost" the Democrats. Packing the court is what happens in coups, not peaceful transfers of power. And once Democracy gets abandoned, everyone loses.

The Court is the ONE branch of our government that has actually been doing it's job. There's zero need to mess with them to correct some perceived partisan "imbalance" - especially because the Court is not a partisan organization, and we don't want to make it into one.

[malchior]

In the end this will be a real test if we have to prepare for *whatever* comes next. Either the system protects the legitimacy of the court by waiting until the election settles down or we go into he abyss.

Any other solutions like packing the court would be a point fix for a system that is dying. It might delay things but it won't heal the fracture. I'm hoping that this won't go that way but the risks are off the chart now.

[Smoove_B]

The Court is the ONE branch of our government that has actually been doing it's job. There's zero need to mess with them to correct some perceived partisan "imbalance" - especially because the Court is not a partisan organization, and we don't want to make it into one.

[Zaxxon]

If the GOP rushes through an appointment now, it will mean abandoning +definitely+ +declared+ principles for political advantage.

If the Dems win the Senate and pack the courts, it will mean sidestepping -vaguely- -presumed- principles for political advantage.

If the former costs the GOP nothing, Dems shouldn't expect the latter to cost them anything.

it's now what it costs the Democrats, it's what it costs the country in the long term. Another example of short term gain vs long term pain.

We are loooongg past worrying about that. The boat is sinking. We're drowning.

We're fucked.

[Enough]

Friendly reminder, now would be an ideal time to lock in the refi and renew those passports.

[Grifman]

What the Democrats should do is go to McConnell and tell him this:

"You've got your 5-4 majority, be happy with that. If you nominate/confirm another SCJ, and we win the presidency/senate, we will expand the court and you loose that. Don't do anything and even if we win, we won't expand the court, and you'll still have your 5-4 majority. So you have to ask yourself, how good do you feel about the upcoming election. How much is a temporary 6-3 majority worth to you, if there is a good chance it will become a 6-7 minority? Are you feeling lucky?"

[Holman]

If the GOP has (presuming they rush through a nominee two weeks before the election) *twice* disrupted the normal procedures for picking justices, would it be so radical for Dems to tilt the balance back to what it was before those disruptions?

I don't think "court packing" would mean a dozen new justices. The most politically palatable version would be two new justices to counterbalance the two stolen seats. This would actually leave the court at a 6-5 conservative advantage, with Roberts and sometimes Gorsuch as swing votes.

If McConnell rushes through a RBG replacement, "two new seats" would be a fair and attractive slogan for Dems to run on.

[Grifman]

If the GOP rushes through an appointment now, it will mean abandoning +definitely+ +declared+ principles for political advantage.

If the Dems win the Senate and pack the courts, it will mean sidestepping -vaguely- -presumed- principles for political advantage.

If the former costs the GOP nothing, Dems shouldn't expect the latter to cost them anything.

it's now what it costs the Democrats, it's what it costs the country in the long term. Another example of short term gain vs long term pain.

We are loooongg past worrying about that. The boat is sinking. We're drowning.

We're fucked.

Packing the court is the equivalent of pulling some more planks off of the sinking boat. Yeah, it screws the other guy, but it ends up screwing you too.

[Holman]

We are loooongg past worrying about that. The boat is sinking. We're drowning.

We're fucked.

I understand the feeling, but I don't want to hear this. We have an election in six weeks. We can still fight.

Do it. Fight like hell.

[Zaxxon]

We are loooongg past worrying about that. The boat is sinking. We're drowning.

We're fucked.

I understand the feeling, but I don't want to hear this. We have an election in six weeks. We can still fight.

Do it. Fight like hell.

The context was fighting back vs holding back.

[Grifman]

If the GOP has (presuming they rush through a nominee two weeks before the election) *twice* disrupted the normal procedures for picking justices, would it be so radical for Dems to tilt the balance back to what it was before those disruptions?

I don't think "court packing" would mean a dozen new justices. The most politically palatable version would be two new justices to counterbalance the two stolen seats. This would actually leave the court at a 6-5 conservative advantage, with Roberts and sometimes Gorsuch as swing votes.

If McConnell rushes through a RBG replacement, "two new seats" would be a fair and attractive slogan for Dems to run on.

That's the problem, if you are going to pack the court, why adopt such a half measure? No one is talking of adding a dozen justices but they are talking about enough to change the balance which would be a total of 13 or 4 new seats.

[Little Raven]

I will absolutely stand by that statement. Both parts.

While Congress has been stalled and the President has been running around the country setting every fire he can, the Court has been quietly, competently hearing cases and issuing judgments. That is EXACTLY what they are supposed to do according to the Constitution. And they haven't been particularly partisan while doing so. Kavanaugh, Gorsuch, and Thomas have all sided with the Liberals on several split decisions, while Kagan and Breyer have both crossed the party line as well. Which is only to be expected....Supreme Court positions are for life. There's no way to make a judge STAY bought even if you managed to buy one.

edit - I fixed words.

[Little Raven]

I don't think "court packing" would mean a dozen new justices.

The number is immaterial. Once you establish the precedent, you practically mandate that your opposition do the same as soon as they are able.

And this is America. We give control of the Federal Government to the Republicans on a very routine basis.

[Holman]

Friendly reminder, now would be an ideal time to lock in the refi and renew those passports.

Most of us can't. It's not an option.

Fight. Throw everything into GOTV.

My wife and some organized colleagues (including me) just sent out more than *seven thousand* hand-written postcards aimed at Democrats who'd skipped 2018 or this year's primary, informing them of procedures, websites, and dates for voting safely and easily by mail.

The lines are drawn. The approvals are barely moving. Everything this year is about turnout, and if you imagine that you can only influence one vote (your own), you're sure as hell not doing enough to save the country.

[$iljanus]

What the Democrats should do is go to McConnell and tell him this:

"You've got your 5-4 majority, be happy with that. If you nominate/confirm another SCJ, and we win the presidency/senate, we will expand the court and you loose that. Don't do anything and even if we win, we won't expand the court, and you'll still have your 5-4 majority. So you have to ask yourself, how good do you feel about the upcoming election. How much is a temporary 6-3 majority worth to you, if there is a good chance it will become a 6-7 minority? Are you feeling lucky?"

McConnell: The number of justices has been fixed at nine since The Judiciary Act of 1869. If Roosevelt couldn’t do it I think I’ll take my chances and get my 6-3 majority.

[Defiant]

Lindsey Graham from 2018:

“This may make you feel better, but I really don’t care,” Graham said. “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election.”

https://thehill.com/homenews/senate/409 ... vacancy-in

Being Graham, this means he'll vote to confirm. Sight unseen if necessary.

[RunningMn9]

McConnell is fighting a war in which his opponent is super concerned about the rules. That’s why he’s winning. I’m not clamoring for packing the court, but as long as your are concerned with norms and rules, you’ll keep losing.

[malchior]

There is also a chance that McConnell schedules the vote for a lame duck session. He maybe doesn't have the votes now. Collins can't vote for a conservative right now for instance. He will have to have a solid read on Senators' willingness to do a lame duck vote though. The calculus here is exceedingly complex right now.

At a facile level the least risk for him is to go for it but game it out and it becomes clear that there are no clear paths for McConnell. That is good tbh. If it was easy he'd definitely go for it damn the consequences.

[Defiant]

I understand the feeling, but I don't want to hear this. We have an election in six weeks. We can still fight.

Do it. Fight like hell

FTFY

[Alefroth]

Can't wait to see the groveling Cruz has probably already started.