The War for the Supreme Court (Ginsburg is dead)

[Grifman]

McConnell has sometimes been called the gravedigger of Democracy. I think that is way too generous but read this and decide for yourself. Bravo to the person who leaked this.

The Republicans misuse the so-called "Biden Rule". Biden said that the president should not send SC nomination to the Senate during the election - he did not want that to inflame partisan tensions - but that he would be perfectly willing to hold hearings and confirm a nominee AFTER the election:

https://www.politifact.com/article/2016 ... minations/

[Carpet_pissr]

re:Holman’s post above

Good for you, that’s legit inspiring. I need to figure out how to do my own ramping up, but it can’t be monetary.

And FWIW, it’s spelled “Jaime”.

[Holman]

[LawBeefaroni]

I think the right way to address this without harming the future of the country is via the non-partisan court packing scheme that Mayor Pete pushed during the primary. If it's feasible and works as intended.

Pete's plan was is credited to come from this paper from the Yale Law Journal. It had several proposals but the one Pete picked up was to expand from 9 to 15 judges. 5 Republicans/5 Democrats (10 permanent members) and 5 chosen by the permanent 10 unanimously to serve a 1 year term. It is called the 'Balanced Bench' in the linked text.

Codifying the 2 party system and enshrining the Democratic/Republican paradigm? No thanks.

[Defiant]

Maybe, if they're feeling REALLY gutsy, they go after Roe vs. Wade, but if history is any guide, that's a fantastic way to move Democrats to the polls.

Maybe, if it happens near enough to Election Day. And then they forget about it the next cycle. Because history has shown that Democrats and voters in general have short term... what was I talking about again?

[malchior]

I think the right way to address this without harming the future of the country is via the non-partisan court packing scheme that Mayor Pete pushed during the primary. If it's feasible and works as intended.

Pete's plan was is credited to come from this paper from the Yale Law Journal. It had several proposals but the one Pete picked up was to expand from 9 to 15 judges. 5 Republicans/5 Democrats (10 permanent members) and 5 chosen by the permanent 10 unanimously to serve a 1 year term. It is called the 'Balanced Bench' in the linked text.

Codifying the 2 party system and enshrining the Democratic/Republican paradigm? No thanks.

I don't like it as an idea either but the 2 party system is inevitable unless we change first past the post. And the chances of that are bupkis right now.

[noxiousdog]

FWIW,

Five Thirty Eight seems to think Gorsuch and Kavenaugh are less conservative than Kagen and Breyer are liberal.

Also, I tend to agree with LR that the Supreme Court votes more with philosophy than political ideology. The exception is one of the big issues like voting rights. They do tend to vote on these cases with whichever will help them get more of their party into office. See: Bush v. Gore (State's rights! er I mean, we'll tell you to stop counting right now!)

[malchior]

The Republicans misuse the so-called "Biden Rule". Biden said that the president should not send SC nomination to the Senate during the election - he did not want that to inflame partisan tensions - but that he would be perfectly willing to hold hearings and confirm a nominee AFTER the election:

https://www.politifact.com/article/2016 ... minations/

The Democrat's problem is no one pays enough attention to this level of detail. The GOP succeeds because they warp the system through sleight of hand tricks. These bullshit rationalizations by McConnell? I suspect most people never hear them. So when they ram through another justice, McConnell will have a set of talking points that they will repeat at rote to say this is "within the system". There will be a lot of noise but no manner of screaming and shouting is going to get through to a lot of people in this country. It'll be 'partisan politics' and bothsides bluster probably. There is always the chance that the major media does its job but I won't hold my breath.

So this runs into the elephant in the room problem the Democrats face. They need to propose structural reforms -- the ideas to pack the court or other proposals? Those will be major visible changes. The Republicans will immediately poison them as 'radical/socialist'. The Democrats will have a Devil's choice to decide to play hardball themselves and push them through -- if even possible since this presumes they get the Senate -- or work slower and have a partisan court chip away at their progressive reforms. This might end up just feeding the death spiral. In other words, the Democrats let themselves fall so far behind that we may need structural changes -- perhaps even desperately need it -- and just proposing and implementing them might worsen the political situation.

[malchior]

FWIW,

Five Thirty Eight seems to think Gorsuch and Kavenaugh are less conservative than Kagen and Breyer are liberal.

Also, I tend to agree with LR that the Supreme Court votes more with philosophy than political ideology. The exception is one of the big issues like voting rights. They do tend to vote on these cases with whichever will help them get more of their party into office. See: Bush v. Gore (State's rights! er I mean, we'll tell you to stop counting right now!)

That's fine and all but their legal philosophy is essentially tied to political ideology. They are intermixed. However, I think this perception is most of the time clouded by the fact that many times the issues are clear cut and we don't need to apply an ideological lenses. There are a lot of 9-0, 7-2 decisions written for instance. The trouble is lawmakers are building law in ways that force the Supreme Court to consider things that intersect intentionally with ideological points of view. That will only worsen if they think the referees are on their side. That is why this moment is so incredibly dangerous.

In particular, I think we've seen some evidence that Roberts in particular is very much aware of this dynamic and has voted against his preference because he knew the fallout was going to be extreme. Look at how much heat Roberts has taken this year from the right for taking fairly moderate common sense positions. The church pandemic case and the Mazars case in particular indicate this. He cast the deciding vote and he wrote the opinions. He was acting as peacemaker.

Moreso, I'd argue that the court is only not hard right because of Kennedy and then Roberts. If the GOP sits a Conservative justice, the balance will break quickly and sharply. We will see Conservative legislatures all over the land take runs at everything. It doesn't mean SCOTUS will take them all up but it will unlock a ground swell of regressive policy that doesn't have majority support and add more pressure into a fracturing system.

[Little Raven]

Codifying the 2 party system and enshrining the Democratic/Republican paradigm? No thanks.

Yeah that's an absolutely terrible idea. Especially the part about how they're constantly picking the rotating justices. The Supreme Court has an actual job to do - the last thing we want is them constantly distracted with administration.

Personally, before we go about "fixing" the Court, I'd like some fairly convincing evidence that it's broken.

It seems like you can make a pretty airtight case that Congress is busted. For most of my lifetime, each Congress has done less than the one before. They barely legislate, they never respond to any of the myriad challenges facing our country - they simply fight a never ending culture war that helps no one and accomplishes nothing. I think you can make a pretty strong case that the Executive branch is breaking - mostly in response to the fact that Congress is totally checked out. Because Congress won't do anything, and the people do want the government to do things, the President keeps issuing more and more Executive Orders on flimsier and flimsier ground. We're to the point where Trump is ordering eviction moratoriums...which is so radically outside of his powers that boggles the mind...but Congress doesn't want to challenge him on this, because it would just draw attention to the fact that they've completely abandoned their responsibility.

But the Supreme Court? In 2019, even as our Government was more paralyzed than ever before, the Court heard 63 cases. By my count, only 7 of those were 5-4 - most decisions were clearly NOT contentious. Kavanaugh has proven to be neither the lackey nor the psychopath he was painted as - he is simply getting on with the work he was put there to do.

There's a LOT wrong our government at the moment. But I'm not seeing much evidence that the problems are in the Court.

[Dogstar]

Yeah that's an absolutely terrible idea. Especially the part about how they're constantly picking the rotating justices. The Supreme Court has an actual job to do - the last thing we want is them constantly distracted with administration.

Personally, before we go about "fixing" the Court, I'd like some fairly convincing evidence that it's broken.

...

There's a LOT wrong our government at the moment. But I'm not seeing much evidence that the problems are in the Court.

I don't reject your idea that the Court isn't broken, but, by your own admission, Congress is, which means an Executive gets a hell of a lot of free reign. And in turn, that places a tremendous amount of pressure on the judiciary, which seems... inadvisable. Others have noted previously that the fate of the Republic shouldn't necessarily be charted for the next thirty years due to lifetime appointments, nor should it be that one person's death so dramatically potentially imperils rights and causes. A larger number of justices with term limits helps limit that. So from a pragmatic standpoint, it's not so much that the Court is broken, but the out-sized effect each individual on it currently has isn't ideal, and the nominating process itself certainly is... problematic. Reforms help address these concerns.

But from a political standpoint, RM9 had it right earlier -- as long as one side is concerned with keeping to the rules, it's going to keep losing. McConnell broke the rules first with Garland, and now likely again with a new nominee. Stating that the Democrats should keep to the rules, without fighting to the same level, allows them to be taken advantage of again... and again... and again. Moreover, unless the Democrats somehow get Puerto Rico and/or DC admitted as states, with the current alignment of states, they're at seemingly a perpetual disadvantage. So it's likely we'll see this used again. I agree that I don't know where the bottom is, but unless substantive change happens, sticking to the rules isn't helping either.

[Daehawk]

Past time for a law that states the SCotUS must have equal numbers of members with one leader or something.

[Little Raven]

Reforms help address these concerns.

Reforming the Court isn't going to do anything to fix Congress, and as long as Congress is broken, we're going to be in a bad way, because Congress is by far the most important branch of our government. Trying to "balance" the Court with reforms is like replacing the tires on the car when it's the suspension that's out of whack. It's not going to help. AT BEST it's going to make Democrats feel slightly better until the next time Republicans get control of the government, (and there will be a next time, probably not all that long from now) at which point they will "reform" the Court again. There's a reason even FDR backed down from this fight - it sets up conditions which make peaceful transitions of power impossible. If you KNOW the other guy is literally going to pack the Courts the second he gets into power - well, you're justified in doing ANYTHING to keep him out of power, right?

But from a political standpoint, RM9 had it right earlier -- as long as one side is concerned with keeping to the rules, it's going to keep losing.

But Democrats AREN'T losing, at least any more than the Republicans are. The country is DRAMATICALLY farther to the left than it was just a few decades ago. I was watching Law and Order last night, and there was an episode where a New York City councilman literally committed suicide rather than be outed as gay. Nowadays, being gay is practically a prerequisite for running in certain parts of the city. Gay marriage is the law of the land. Trans rights are being hugely expanded across the nation. Obamacare stands. Democrats hold the House. They're likely to take the Senate, and the Presidency. They've held all of these branches multiple times over the last 2 decades. Democrats (and leftists in general) are doing just fine. There's no need to blow up the country because we occasionally lose.

[Smoove_B]

Fully understand? Fully agree? Who can say?

I fully understand where President @realDonaldTrump is coming from.

As has been already pointed out by so many others, we're 6+ months into a public health emergency in the United States with 200K+ dead and an untold number suffering and the GOP is invisible. In the hours after RBG death, they're all magically available and the ghoul McConnell is already indicating they will take action. Can't pay rent? Can't feed yourself? Don't care. But there's an opening on the Supreme Court? No delay.

They're absolutely monsters and anyone that votes for a member of the GOP deserves scorn.

[Grifman]

There's a LOT wrong our government at the moment. But I'm not seeing much evidence that the problems are in the Court.

This proposal isn't about fixing the court, but fixing the selection process = that is clearly broken.

[Little Raven]

This proposal isn't about fixing the court, but fixing the selection process = that is clearly broken.

Which proposal are we talking about? The Mayor Pete one?

Under the plan, most justices would continue serving life terms. Five would be affiliated with the Republican Party and five with the Democratic Party. Those 10 would then join together to choose five additional justices from U.S. appeals courts, or possibly the district-level trial courts. They’d have to settle on the nonpolitical justices unanimously — or at least with a “strong supermajority.”

They final five would serve one-year, nonrenewable terms. They’d be chosen two years in advance, to prevent nominations based on anticipated court cases, and if the 10 partisan justices couldn’t agree on the final five, the Supreme Court would be deemed to lack a quorum and couldn’t hear cases that term.

That's...a little bit more than tweaking the selection process.

[Defiant]

Yes. He's coming from the pits of hell.

[Dogstar]

Stepping aside from court reforms for a second, how about this nightmare scenario? The new nominee is confirmed and seated... and then, after an uncertain election where votes are still being counted weeks later, casts the deciding vote in favor of President Trump, awarding him the election. Under what circumstance doesn't that bury the Court as an unbiased branch? And would it be remotely possible to avoid violence at that point?

[Holman]

Graham made his "hold me to it" promise not to approve a justice in an election year (a promise he is breaking today) after Reid had left the senate and after the Kavanaugh nomination.

[Little Raven]

The new nominee is confirmed and seated... and then, after an uncertain election where votes are still being counted weeks later, casts the deciding vote in favor of President Trump, awarding him the election.

How would that even happen, though? The Supreme Court is not generally involved in the election process. Bush vs. Gore was an AMAZINGLY narrow edge case the likes of which has occurred exactly once in almost 250 years of our history as a nation.

For your scenario to happen, we would once again need to have a superbly split electorate, where the partisan balance of the country rested on a knife edge. None of the polls suggest this is likely. And even if all the polls are wrong, getting the Supreme Court involved, while not having this new Justice recuse himself, would require quite a large number of supremely unlikely events to occur.

There are lots of reasons to be concerned about RBG's passing. This one seems....like a low probability scenario.

[Smoove_B]

The Supreme Court is not generally involved in the election process.

It's not always the frequency. Sometimes, it's the weight. "Not generally involved" in the electron process is a bit of a misnomer.

As he wrote in his 1978 Bakke opus, “In the words of C. Vann Woodward: ‘By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights.’” Not even close to a century has passed, but this iteration of the Court is very busy whittling.

[Kraken]

Stepping aside from court reforms for a second, how about this nightmare scenario? The new nominee is confirmed and seated... and then, after an uncertain election where votes are still being counted weeks later, casts the deciding vote in favor of President Trump, awarding him the election. Under what circumstance doesn't that bury the Court as an unbiased branch? And would it be remotely possible to avoid violence at that point?

I would regard that as a coup d'etat. I would not be alone in that opinion.

Today I'm feeling uncharacteristically optimistic about a Biden landslide. I think I'm becoming manic-depressive, which feels a little better than being just plain depressive.

[Little Raven]

It's not always the frequency. Sometimes, it's the weight. "Not generally involved" in the electron process is a bit of a misnomer.

I don't discount that, but that's not what Dogstar is talking about. He's talking about a scenario where this new Justice somehow hands the Presidency to Trump, presumably along the lines of Bush v. Gore. That's....really not easy to do. It requires a set of conditions that are frankly difficult to imagine happening.

But I will happily clarify my statement in light what you're saying - the Supreme Court does not generally directly affect the outcome of elections.

[Holman]

I'm trying to imagine a scenario where someone is *more* likely to vote Trump due to RBG's passing.

We can't call her death unexpected, and every Supreme-Court-motivated GOP voter was already assuming that a re-elected Trump would get to replace her soon enough.

What am I missing? How would getting a 6-3 majority right now (rather than, say, next year) move votes into the Trump column?

(We can assume that the pure stigginit voters are already accounted for.)

[Smoove_B]

It requires a set of conditions that are frankly difficult to imagine happening.

Have you been around for all of 2020?

[Dogstar]

It's not always the frequency. Sometimes, it's the weight. "Not generally involved" in the electron process is a bit of a misnomer.

I don't discount that, but that's not what Dogstar is talking about. He's talking about a scenario where this new Justice somehow hands the Presidency to Trump, presumably along the lines of Bush v. Gore. That's....really not easy to do. It requires a set of conditions that are frankly difficult to imagine happening.

But I will happily clarify my statement in light what you're saying - the Supreme Court does not generally directly affect the outcome of elections.

To be fair to Little Raven, I'm not sure how much of the scenario is possible vs. how much of it's doom-casting. I think at this point, both parties have assembled enormous legal teams to deal with potentially litigating aspects of the election. Whether that aspect might be extending voting hours (due to extremely long lines due to reduced polling places), signature verification, some ID aspect, the counting of mail-in ballots a week after the election, how long mail-in ballots are accepted, malware discovered, voter fraud, some nightmarish aspect with competing electors, etc. -- there's a lot that can be challenged. And given Team Trump's tendency to challenge everything and to try to run out the clock, it's not exactly inconceivable that a case would find its way to the Supreme Court on an expedited basis. Because of the existing tension as well as the way 2020 has gone, I almost expect it to be a shit-show. Believe me, I'd very much like that scenario, or any like it, not to take place.

[Holman]

[Smoove_B]

That's Susan Collins weasel language. She might believe that, but she's also not explicitly saying she wouldn't vote for a nomination made by the current President if he were to try to ram one through prior to Election Day.

[malchior]

That's Susan Collins weasel language. She might believe that, but she's also not explicitly saying she wouldn't vote for a nomination made by the current President if he were to try to ram one through prior to Election Day.

Exactly. "Should".

[gameoverman]

Codifying the 2 party system and enshrining the Democratic/Republican paradigm? No thanks.

Yeah that's an absolutely terrible idea. Especially the part about how they're constantly picking the rotating justices. The Supreme Court has an actual job to do - the last thing we want is them constantly distracted with administration.

Personally, before we go about "fixing" the Court, I'd like some fairly convincing evidence that it's broken

I think we, the people, are what's broken. We have fallen too easily into teams/sides and are looking to 'win' which means the other side must lose. This is the foundation of all that is wrong. Congress? It's easy to say they are failing to do anything but someone voted for each one of them. The Supreme Court gets partisan? Those justices don't appoint themselves, and the people who appoint and approve them were elected by the people. The President? Millions of people voted for him and millions will vote for him again!

I think any new arrangement, any new procedures, that are created to fix the supposed problems with the system will be failures unless we can change peoples' overall attitudes from competition to cooperation. Any new system will be gamed just like the old system, the only thing that will change is how it's gamed. Even now there are average people, not wealthy and not business owners, who are very happy at the prospect of a new conservative judge being placed on the court before liberals can steal the election and add their own liberal judge. They want to see it done regardless of ethics or what's better for the country or precedent. They want to win and getting their own judge in there is a big win to them. You can't fix that with new rules.

[Little Raven]

I'm trying to imagine a scenario where someone is *more* likely to vote Trump due to RBG's passing.

I don't see one. If anything, assuming Trump gets his pick, the right doesn't really have any use for him any more. I actually suspect a few of my more Republican friends would be a great deal less likely to vote for Trump if he put another Conservative on the Court, because honestly all they care about are gun rights, and once they feel those are secure....who needs an Orange Idiot?

[Grifman]

I'm trying to imagine a scenario where someone is *more* likely to vote Trump due to RBG's passing.

We can't call her death unexpected, and every Supreme-Court-motivated GOP voter was already assuming that a re-elected Trump would get to replace her soon enough.

What am I missing? How would getting a 6-3 majority right now (rather than, say, next year) move votes into the Trump column?

(We can assume that the pure stigginit voters are already accounted for.)

Trump isn't the issue, the Senate is. Tillis in NC for example. He's unpopular with a fair number of conservatives because he's not seen as "Trumpy" enough and he is trailing in a state the usually elects Republican Senators. He's already put out a statement saying he'll vote for Trumps' nominee even though there isn't one yet. He'll try to ride this to victory.

[Holman]

Codifying the 2 party system and enshrining the Democratic/Republican paradigm? No thanks.

Yeah that's an absolutely terrible idea. Especially the part about how they're constantly picking the rotating justices. The Supreme Court has an actual job to do - the last thing we want is them constantly distracted with administration.

Personally, before we go about "fixing" the Court, I'd like some fairly convincing evidence that it's broken

I think we, the people, are what's broken. We have fallen too easily into teams/sides and are looking to 'win' which means the other side must lose. This is the foundation of all that is wrong. Congress? It's easy to say they are failing to do anything but someone voted for each one of them. The Supreme Court gets partisan? Those justices don't appoint themselves, and the people who appoint and approve them were elected by the people. The President? Millions of people voted for him and millions will vote for him again!

I think any new arrangement, any new procedures, that are created to fix the supposed problems with the system will be failures unless we can change peoples' overall attitudes from competition to cooperation. Any new system will be gamed just like the old system, the only thing that will change is how it's gamed. Even now there are average people, not wealthy and not business owners, who are very happy at the prospect of a new conservative judge being placed on the court before liberals can steal the election and add their own liberal judge. They want to see it done regardless of ethics or what's better for the country or precedent. They want to win and getting their own judge in there is a big win to them. You can't fix that with new rules.

Disagree.

People aren't fighting for a win just to run up the score. They're fighting because a win fundamentally reshapes society in ways they approve.

Our system is actually decent at finding the mushy middle where one exists. But the hardest-edged issues that divide us are either/or, or at least ones where compromise feels like a wrong in itself.

"Compromise" won't make anti-choicers comfortable with abortion before a particular month. It won't make gay-rights proponents willing to accept 75% of civil rights protections. It won't make BLM accept a quota of police brutality beyond which they won't object.

[malchior]

Yeah that's an absolutely terrible idea. Especially the part about how they're constantly picking the rotating justices. The Supreme Court has an actual job to do - the last thing we want is them constantly distracted with administration.

Personally, before we go about "fixing" the Court, I'd like some fairly convincing evidence that it's broken.

...

There's a LOT wrong our government at the moment. But I'm not seeing much evidence that the problems are in the Court.

I don't reject your idea that the Court isn't broken, but, by your own admission, Congress is, which means an Executive gets a hell of a lot of free reign. And in turn, that places a tremendous amount of pressure on the judiciary, which seems... inadvisable.

Just to add on to this point, I don't understand why we have to wait until it is *past tense* broken when it is clear what direction it'll head. The 5-4 decisions have generally been the most contentious and big impact decisions largely because the political bodies are already broken as you correctly point out. The President and many legislative bodies are exploring the bounds of their ability to implement by fiat or legislate their regressive policies all across the nation.

The math isn't hard here. The court will break hard to the right almost immeditely. It doesn't matter if Kavanaugh and Gorsuch aren't as conservative as Kagan and Sotomayor are liberal since there is no real moderating power in place. It won't naturally be across the board but we'd get a quick view of it as every red state started slamming down anti-immigration and anti-abortion bills left and right.

What's illustrative around this point is what happened after Kavanaugh was seated. Southern legislatures ran up to the line on banning abortion. Some did it pretty much outright. They decided to immediately test those waters. Roberts was the deciding factor there. And even then he hinted how they could succeed next time. What happens when Roberts desire to moderate the court are overwhelmed by the court balance? It will almost certainly bend and then eventually break. Waiting for that moment is foolish.

[Tao]

I am firmly convinced at this point in time that Trump will get a third Supreme Court nomination. My understanding is it will take four Republican Senators to refuse to move forward on a nomination, even if Collins, Murkowski and Romney stand their ground it goes to a tie breaker and Pence decides, which is a forgone conclusion. Right now only Collins and Murkowski have given tacit comments about not voting, nothing that could be interpreted as iron clad. Romney has, I believe, been silent in regards to how he would vote. Once McEvil gets everyone in a room and Collins and Murkowski can see the lay of the land I suspect they will make a bunch of noise about not voting since at that point they will know there aren't enough nay's. Politico identified a total of six possible holdouts to include Gardner (CO), Alexander (TENN) and Roberts (KAN), none of whom I believe will buck the party. I would toss Grassley's name in as well as someone who will briefly consider voting no but ultimately they will all buckle. For all their ills, and there are many, McConnell does his job as Majority leader well and the GOP tends to operate united. We are good and truly fucked.

[Defiant]

One potential issue in a lame duck confirmation - if the Democrat wins the special election in Arizona, he would be confirmed in November

[Defiant]

Maine Republican Sen. Susan Collins says the nomination of a Supreme Court justice to fill the vacancy left by the death of Ruth Bader Ginsburg should be made by whichever candidate wins the presidential election.

Citing the proximity to Election Day — now just weeks away — she said in a statement Saturday: "In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd."

https://www.npr.org/sections/death-of-r ... us-vacancy

Sounds like there's a 5% chance that Collins won't vote to confirm.

[Holman]

This is the fourth or fifth similar tweet I've seen today from Dem PACs and fundraising groups.

[Holman]

The Lincoln Project continues to confuse me. I believe they sincerely hate Trump and Trumpism, but do their principles really go so far as to be willing to see another dedicated liberal on the Court?

Kudos if so. It just seems that few of these people would be making the same moves against, say, President Jeb Bush's third SC pick, and that makes me wonder.

[Paingod]

Sounds like there's a 5% chance that Collins won't vote to confirm.

She's waiting to see how her election pans out.

If she looses, there's no harm in tossing in one last finger to the American people - and Mainer's specifically.