Octopus Overlords

Zaxxon wrote: Mon Oct 26, 2020 9:52 am

Unagi wrote: Mon Oct 26, 2020 9:13 am Not really


They sat on nominations during Obama and handed them all to Trump.

Leaving aside the specific meaning of 'packing,' which was chosen specifically to apply negative context to potential Democratic fixes only. What the GOP has done is absolutely a different aspect of the same idea--resized the judiciary to make it more amenable to their desires rather than apply the rules equally. (In their case, by resizing the SC to 8 for the remainder of Obama's term, and withholding, then rushing through lower-court judges.)

Trying to differentiate the two is a fool's errand (other than pointing out that one side did it to un-democratically wield more power, while the other is considering the idea in order to restore democratic behavior).

noxiousdog wrote: Mon Oct 26, 2020 10:20 am If Democrats seriously attempt to add Supreme Court justices I'm done with them too.

noxiousdog wrote: Mon Oct 26, 2020 10:20 am If Democrats seriously attempt to add Supreme Court justices I'm done with them too.

On Thursday, Biden sought to make a nod to both camps by announcing that as president he would name a bipartisan commission to propose changes to the Supreme Court and federal judiciary, potentially placing a volatile issue on his agenda early in his prospective presidency.

The announcement gave Biden, who is wary of partisan court-expansion plans, a way to address the issue hours before his final debate with President Trump. But there were signs it would not fully resolve the matter, as Trump tweeted that Biden “wants to Pack the Court with Radical Left crazies” and a liberal group denounced the commission idea as insufficient.

malchior wrote: Mon Oct 26, 2020 10:21 am

noxiousdog wrote: Mon Oct 26, 2020 10:20 am If Democrats seriously attempt to add Supreme Court justices I'm done with them too.

How do you expect them to not address the forced imbalance? The instability this court will bring will be untenable long-term. They will eventually do something radical. What happens then? Shrugging?

Little Raven wrote: Mon Oct 26, 2020 10:26 am In my experience, politicians appoint a commission when they want to give lip service to an idea but have no real interest in touching it....so I'm taking this as a good sign.

noxiousdog wrote: Mon Oct 26, 2020 10:55 am There's not any evidence, yet, that the conservative court is going to be a disaster. You don't go changing your government on hunches.

noxiousdog wrote: Mon Oct 26, 2020 10:55 amThere's not any evidence, yet, that the conservative court is going to be a disaster. You don't go changing your government on hunches.

noxiousdog wrote: Mon Oct 26, 2020 10:55 am There's not any evidence, yet, that the conservative court is going to be a disaster. You don't go changing your government on hunches.

noxiousdog wrote: Mon Oct 26, 2020 11:06 am You guys sound like Fox News.

Let's break all the rules and norms because the other side is evil! (tm)

malchior wrote: Mon Oct 26, 2020 11:07 am

noxiousdog wrote: Mon Oct 26, 2020 10:55 am There's not any evidence, yet, that the conservative court is going to be a disaster. You don't go changing your government on hunches.

The *already* Conservative court has been a complete mess that has been compounding itself. They gutted the VRA, they gutted anti-gerrymandering efforts, they gutted campaign finance reform, etc. ACA was only saved because Roberts threw himself on the sword to protect the legitimacy of the court. There is a extremely high bordering on certainty that they'll do something that'll blow a hole through the constitutional order. That doesn't require a hunch. It requires only thinking 2 or 3 moves down the board.

noxiousdog wrote: Mon Oct 26, 2020 11:06 am You guys sound like Fox News.

Let's break all the rules and norms because the other side is evil! (tm)

Go talk to minorities or other disadvantages groups. They are terrified right now.

noxiousdog wrote: Mon Oct 26, 2020 11:15 amNothing stops congress from passing a new and improved voting rights act or ACA.

I'll grant you gerrymandering.

Campaign finance is overrated and a free speech issue. It also isn't the end of the world.

noxiousdog wrote: Mon Oct 26, 2020 11:06 amSure, delegitimizing government is a great way to make people feel secure.

edit: It's pretty simple, if Roe or Obergefell is overturned, Congress can make a law reinstating it. At that point, I'll listen about what to do with the courts.

noxiousdog wrote: Mon Oct 26, 2020 11:15 am

malchior wrote: Mon Oct 26, 2020 11:07 am

noxiousdog wrote: Mon Oct 26, 2020 10:55 am There's not any evidence, yet, that the conservative court is going to be a disaster. You don't go changing your government on hunches.

The *already* Conservative court has been a complete mess that has been compounding itself. They gutted the VRA, they gutted anti-gerrymandering efforts, they gutted campaign finance reform, etc. ACA was only saved because Roberts threw himself on the sword to protect the legitimacy of the court. There is a extremely high bordering on certainty that they'll do something that'll blow a hole through the constitutional order. That doesn't require a hunch. It requires only thinking 2 or 3 moves down the board.

Nothing stops congress from passing a new and improved voting rights act or ACA.

I'll grant you gerrymandering.

Campaign finance is overrated and a free speech issue. It also isn't the end of the world.

malchior wrote: Mon Oct 26, 2020 11:30 am The Republicans have been delegitimizing Democratic rule for decades right in front of us. They have been building out a plan to ensure a permanent counter-majoritarian system in plain sight. They've even said it out loud. Waiting until they get the job done is hardly smart.

noxiousdog wrote: Mon Oct 26, 2020 11:15 am Sure, delegitimizing government is a great way to make people feel secure.

noxiousdog wrote: Mon Oct 26, 2020 11:35 am Let's at least see how badly they get destroyed in this election before we start changing the government.

Zaxxon wrote: Mon Oct 26, 2020 11:39 am

noxiousdog wrote: Mon Oct 26, 2020 11:35 am Let's at least see how badly they get destroyed in this election before we start changing the government.

This is fair. But IMO it would have to be a historically significant destruction to bring any sense of relief (think Biden winning Texas and therefore every battleground state, cruising to a ~410 electoral vote victory with no legitimate challenges to the succession, followed quickly by the GOP undergoing a major overhaul). That might indicate that the electorate has changed significantly to withstand GOP gerrymandering, etc.

But since that is not at all likely to happen, it's also fair to have these discussions about how to react back in reality.

noxiousdog wrote: Mon Oct 26, 2020 11:55 am

Zaxxon wrote: Mon Oct 26, 2020 11:39 am

noxiousdog wrote: Mon Oct 26, 2020 11:35 am Let's at least see how badly they get destroyed in this election before we start changing the government.

This is fair. But IMO it would have to be a historically significant destruction to bring any sense of relief (think Biden winning Texas and therefore every battleground state, cruising to a ~410 electoral vote victory with no legitimate challenges to the succession, followed quickly by the GOP undergoing a major overhaul). That might indicate that the electorate has changed significantly to withstand GOP gerrymandering, etc.

But since that is not at all likely to happen, it's also fair to have these discussions about how to react back in reality.

It's more likely than you think. According to 538 Georgia, Ohio, are Iowa 50/50.

Texas is now 1:3 and the polling has been mixed.

If I recall correctly the 2022 Senate is even more awful for Republicans.

El Guapo wrote: Mon Oct 26, 2020 11:30 amOn top of that, if they wait they may well lose their ability to do something about it for a very long time. Assuming that they win control in 2020, they will only be guaranteed full control through 2022. The Senate is structured against them, the House to some degree as well due to gerrymandering. On top of that the SCOTUS has already declined to address gerrymandering (and one can imagine how a 6-3 conservative court is going to treat legislative gerrymandering solutions), and the other week we saw 4 justices willing to overturn a state court interpretation of state law to make it harder to vote. If the Democrats do nothing about the courts, we could easily wind up in a situation where Democrats narrowly lose the Senate in 2022, gerrymandering gives the GOP almost permanent majorities in key swing states (WI, NC, FL, etc.,), those states restrict voting to create GOP friendly electorates in those states, which is then blessed by the SCOTUS (and efforts to expand voting in Democratic states are struck down), and those restrictions plus the GOP friendly bias in the Senate mean that the Democrats are powerless to do anything in response as the court guts any remotely progressive legislation, even as Democrats regularly get more overall votes for the House, Senate, and presidency.

noxiousdog wrote: Mon Oct 26, 2020 11:55 amIf I recall correctly the 2022 Senate is even more awful for Republicans.

malchior wrote: Mon Oct 26, 2020 11:07 amAnd it is hilarious you are pointing at norms when they've been smashed almost unilaterally by one group and then you call out the other when they contemplate reacting.

malchior wrote: Mon Oct 26, 2020 12:01 pm

El Guapo wrote: Mon Oct 26, 2020 11:30 amOn top of that, if they wait they may well lose their ability to do something about it for a very long time. Assuming that they win control in 2020, they will only be guaranteed full control through 2022. The Senate is structured against them, the House to some degree as well due to gerrymandering. On top of that the SCOTUS has already declined to address gerrymandering (and one can imagine how a 6-3 conservative court is going to treat legislative gerrymandering solutions), and the other week we saw 4 justices willing to overturn a state court interpretation of state law to make it harder to vote. If the Democrats do nothing about the courts, we could easily wind up in a situation where Democrats narrowly lose the Senate in 2022, gerrymandering gives the GOP almost permanent majorities in key swing states (WI, NC, FL, etc.,), those states restrict voting to create GOP friendly electorates in those states, which is then blessed by the SCOTUS (and efforts to expand voting in Democratic states are struck down), and those restrictions plus the GOP friendly bias in the Senate mean that the Democrats are powerless to do anything in response as the court guts any remotely progressive legislation, even as Democrats regularly get more overall votes for the House, Senate, and presidency.

I'm not too sure people are really understanding the political math here. To have a path out of this mess, we have to start with the Democrats taking the Senate this year and then somehow getting major reform done in 2 years. That's an extremely tall order.

We'll know in about a week if avoiding maximal obstruction is certain at all. Though they might get devious smart and trend back to legislating in more toward the middle to let the courts do the dirty work. It is hard to know yet what the strategy will be. In any case, I don't see this election as anything but preventing the near immediate collapse of the system (<4 years) if Trump prevails. If Biden wins and they get the Senate, there is a chance to stabilize. If Biden wins and they don't get the Senate, the 2024 election has a good chance to be an exercise in complete bedlam as everyone is just incredibly frustrated with a broken system.

noxiousdog wrote: Mon Oct 26, 2020 11:55 amIf I recall correctly the 2022 Senate is even more awful for Republicans.

No it's the opposite. We're close to no year being a good year for the Democrats in the Senate. It is why the call to add DC and Puerto Rico have been so loud. Power keeps concentrating into fewer hands year after year.

Little Raven wrote: Mon Oct 26, 2020 12:03 pm

malchior wrote: Mon Oct 26, 2020 11:07 amAnd it is hilarious you are pointing at norms when they've been smashed almost unilaterally by one group and then you call out the other when they contemplate reacting.

But here's the thing....Republican power games have decimated their party. We used to have a fair number of conservatives around here....no more. They all jumped ship over the last decade. You have senior party officials...people who have given their lives to the Republican Party...calling for it to be burned to the ground and restarted. Smashing all of these norms has left them in danger of losing Texas.

Why on Earth would anyone look at these guys and think..."Yeah....we should start doing what's THEY'VE been doing." Biden is absolutely crushing it on the promise of restoring norms and civility. There's no need to let our own bull loose in the china shop.

malchior wrote: Mon Oct 26, 2020 12:09 pmThey haven't been decimated. They've been replaced by even more radical people.

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.

Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.

“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”

The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”).

Compare the shadow docket with the court’s regular docket, the one with real briefs, arguments and elaborate signed opinions. On that docket — the “merits docket” — the court ordinarily agrees to hear about 1 percent of the petitions asking it to intercede. In its last term, it decided just 53 merits cases.

If the court is going to treat emergency applications with something like equal care, it might consider explaining what it is doing. Explaining, Judge Frank H. Easterbrook wrote in 2000, is what distinguishes judges from politicians.

“The political branches of government claim legitimacy by election, judges by reason,” he wrote. “Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Terse rulings on emergency applications are not new. But “the shadow docket has truly exploded in the last few years,” Stephen I. Vladeck, a law professor at the University of Texas, wrote on Scotusblog last week.

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges.

Is it possible to trace some themes in the court’s election orders? Sure.

One is that Republicans tend to win. Another, as Justice Brett M. Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “federal courts ordinarily should not alter state election rules in the period close to an election.”

He cited the 2006 ruling that has come to stand for that proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, as Purcell itself was an unsigned, cryptic, tentative and equivocal product of the court’s shadow docket. It has given rise to a “shadow doctrine,” Professor Stephanopoulos wrote last month in an essay on Take Care, a legal blog.

Little Raven wrote: Mon Oct 26, 2020 12:13 pm

malchior wrote: Mon Oct 26, 2020 12:09 pmThey haven't been decimated. They've been replaced by even more radical people.

I mean, I guess we'll see. But this was supposed to be an easy year for the GOP in the Senate...now they're expected to lose. They've lost the House, and their losses look like they're going to deepen. Trump appears on track for a historic beating. The Republican Party is smaller than it has been at any point in my lifetime.

They're getting crushed out there.

malchior wrote: Mon Oct 26, 2020 12:09 pm

Little Raven wrote: Mon Oct 26, 2020 12:03 pm

malchior wrote: Mon Oct 26, 2020 11:07 amAnd it is hilarious you are pointing at norms when they've been smashed almost unilaterally by one group and then you call out the other when they contemplate reacting.

But here's the thing....Republican power games have decimated their party. We used to have a fair number of conservatives around here....no more. They all jumped ship over the last decade. You have senior party officials...people who have given their lives to the Republican Party...calling for it to be burned to the ground and restarted. Smashing all of these norms has left them in danger of losing Texas.

They haven't been decimated. They've been replaced by even more radical people.

Zaxxon wrote: Mon Oct 26, 2020 12:21 pm But we aren't generally the ones getting screwed infected and killed by Coronavirus by the present system.

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

Little Raven wrote: Mon Oct 26, 2020 12:24 pm As your article points out, this is mostly a response to the Administration behaving differently.

The Trump administration has been a major contributor to the trend, Professor Vladeck wrote, having filed 36 emergency applications in its first three and a half years. By contrast, the administrations of Presidents George W. Bush and Barack Obama filed just eight such applications over 16 years.

The Court is just doing what it is supposed to do. It issues rulings. If it gets an emergency application, then it issues an unsigned order. A Liberal court would be doing exactly the same thing.

The system is broken, but the Court is not. Congress is doing nothing - each Congress does less than the last. Presidents are doing too much - partly because Congress is doing nothing, partly because we elected an idiot into office. I'm all for fixing the system, but understand where the problem lies.

Little Raven wrote: Mon Oct 26, 2020 12:13 pm

malchior wrote: Mon Oct 26, 2020 12:09 pmThey haven't been decimated. They've been replaced by even more radical people.

I mean, I guess we'll see. But this was supposed to be an easy year for the GOP in the Senate...now they're expected to lose. They've lost the House, and their losses look like they're going to deepen. Trump appears on track for a historic beating. The Republican Party is smaller than it has been at any point in my lifetime.

They're getting crushed out there.

Little Raven wrote: Mon Oct 26, 2020 10:07 am

Unagi wrote: Mon Oct 26, 2020 8:34 amI'm pretty sure this would take an amendment/ratification, so it will not happen:

No. The size of the court is set by Congress. If the Democrats control both houses, then there's nothing stopping them from making the Court whatever size they want.

Unagi wrote: Mon Oct 26, 2020 12:49 pmNot sure you read what I was proposing.
I was saying that the House should have a say (vote) on nominations

noxiousdog wrote:You guys sound like Fox News.

Let's break all the rules and norms because the other side is evil! (tm)

RunningMn9 wrote: Mon Oct 26, 2020 1:00 pmIf you constantly let your opponent wield power ruthlessly, while you wield yours timidly, what is the point?