Gaming Out Court Packing

--By Sebastian

Justice Kennedy resigning is a horrible blow.  As a gay man I wouldn't say that he always had our back, but he was an ally (in the sense of having very different priorities, yet still working together with us) nonetheless.  If we are going to get through all this we probably need to accept even reluctant sort-of allies.  

In the parts of the blogosphere and social media world I inhabit, there seems to be quite a bit of talk about "court packing" as soon as we get a chance.  Court packing in this context means adding additional members to the Supreme Court until we think we would have a majority.  No one seems to defend it as an objectively good idea for the health of the Supreme Court, it seems to be a tit-for-tat escalation for the (ridiculous) ploy that McConnell used to keep Merrick Garland off the bench.  I understand the tactical interest in tit-for-tat, but lets talk strategy.  

Scenario 1: Democrats control both houses and the Presidency for a few terms. You don’t need to pack the courts, you pass a bunch of laws. You pass a voters rights law, you pass a new civil rights law, you pass a strong health care bill.

Scenario 1a: the Supreme Court does annoying things on the edges, but for the most part let’s Congress do it’s thing. You got your way AND didn’t break the system even more.

Scenario 1b: the conservative Court obstructs even things clearly in Congressional power. Now you can Court pack because you are being forced into it. People will see that you aren’t just breaking things worse.

Scenario 2: Democrats don’t control both Houses and the Presidency. Well they can’t pack anyway. So now we are just talking about breaking things without being able to do it.  

Scenario 3: Democrats control both Houses and the Senate and the Presidency by such thin margins that they don’t think they will have it long.

Scenario 3a: Democrats spend their political energy getting 3 or 4 major bills passed (voting rights etc).

Scenario 3b: Democrats spend much of their political energy deliberately breaking the Supreme Court while knowing they are on a knife edge of just handing the tactic over to Republicans after an escalation.  

If you’re in scenario 1 you don’t need to break things even more than the Republicans did until you know that you’re in 1b, and you have time to see which one you’re in.
If you’re in scenario 3 you’d be a fool to spend the short time you have power introducing new brokenness into the system (just to show that you're 'serious') rather than passing some good policy advances.

Please note that while I think an argument about the proper place of norms or comity in politics might theoretically be useful, this post does not rely on such notions.  

 

Comments

[joel hanes]

the conservative Court obstructs even things clearly in Congressional power.

As it has been doing, regularly, since Bush v Gore. e.g. gutting the Voting Rights Act.

You're expecting, or even hoping for, principled jurisprudence from Alito, Thomas, Gorsuch, and whatever Federalist nightmare Trump nominates ?

May as well wish on a star.

[russell]

i'm not in favor of court packing, period.

if the (D)'s cab take the senate, they can, quite fairly IMO, simply decline to entertain any trump nominee.

what goes around, etc.

if they don't, or if they do and can't agree to that strategy, trump will most likely nominate somebody out there on the federalist / roe delendo est spectrum. and SCOTUS decisions for more or less a generation are going to suck, from my point of view anyway.

so people who are interested in things like, frex, gay rights are going to have to find other means to advance their interests.

it is what it is.

[Sebastian H]

I realize that I left things a little negative. What should we do now? Well first, Democrats need to hang together to oppose any but the most centrist ever heard of nominee. (Maybe nobody but Garland?) That leaves Republicans needing every single vote with McCain out of commission. Then we put pressure on all of the purple state senators to try to get a non-crazy.

[sapient]

i'm not in favor of court packing, period.

I think we need to rethink the Supreme Court, and lifetime appointments. I'm not sure that I'm against court packing.

Our Constitution, which I have for most of my life held up like the Torah, is not up to what's happening now. Russia and the Republican Party conspired to do something to our 2016 elections. Obviously, "we" (some of us) helped. Even if we get hold of all of the FEC violations, the crazy bots, the voting rolls hacking, etc., no one (apparently) is interested in saying this stuff made anything illegitimate.

We need to figure out a way to redress this wrong to the majority of our population. It wasn't just the electoral college, which is our peculiar problem. The Russia connection, and the money laundering and Mandarin Candidate stuff - we need a fix. We'll not have trust in the system until then.

[russell]

i have no problem with revisiting lifetime appointments. i just think packing is a short term fix that will come back to bite us.

i have no disagreement with anything else you've said here.

people who are in a position to change things in a substantive way need to step up and do so. there hasn't been much of that happening, i don't know if it will.

if it doesn't, you are correct, there will not be trust in the system.

absent that, the wheels come off. i have no idea what that looks like, ultimately. it probably will not look like any one thing, it'll be disorder, and other orders good and bad will emerge.

it's not like the rest of the world is just going to sit around and see how it all works out.

these are probably the weirdest times of my life, just in terms of having no idea where it's all going. maybe the nixon thing was comparable, but the distinctively abhorrent personality and blatant venality of trump kind of kicks it up a few notches.

your guess is as good as mine.

we need capable, responsible leadership. absent that, people will take things into their own hands, at that point it's katy bar the door.

things could actually happen quite quickly, sometimes they do.

bon chance america.

[liberal japonicus]

Why shouldn't the Dems not let Trump nominate someone, just as the Republicans did? That moves the fight to the present. Of course, the Dems don't have the same tools, but I'm assuming that they must have some and there should be pressure on Flake and others like him. I'm not ranging over a lot of networks, so my take is that it seems like court packing is something proposed because it is assumed that stopping the next nominee will break the system? Sebastian, is there some reason why court packing is turned to and the fight over the nominee is taken as a 'well, let's make the best of this?'

[liberal japonicus]

Sorry, typing too quickly, obviously Trump can nominate, but using every tool to do exactly the same thing that was done to Obama is what I meant.

[jack lecou]

I think we need to rethink the Supreme Court, and lifetime appointments. I'm not sure that I'm against court packing.

This. The system is really broken. So this:

No one seems to defend it as an objectively good idea for the health of the Supreme Court

... I would quibble with.

It does seem like this ultra-high-stakes 9 lifetime appointments system we're locking into right now is maybe not the objectively ideal approach.

Now, simply packing another 10 or 50 or 100 seats in there wouldn't necessarily fix everything, but I'm not sure it would hurt. It would lower the partisan appointment stakes, increase capacity, allow specialization, etc. Who knows.

After all, I'm not actually sure it makes sense that the size of the court hasn't changed for 15 decades or so. The number of cases filed with it has (and with the federal system generally). But the supreme court's capacity has remained the same.

And I know that's partly because the circuit courts have taken on the workload that the high court might have been involved with more directly in, say 1820. But is that the *ideal* system?

For example, if the kind of decisions the supreme court would originally have made are made at the circuit level now anyway, with the supreme court more or less just mediating high level conflicts, maybe it would make more sense to have a rotating jury of circuit court judges come up to do it, and call them the supreme court.

Or something else. Because, again, what we got now seems busted.

[Sebastian H]

liberal_japonicus: "Why shouldn't the Dems not let Trump nominate someone, just as the Republicans did?... is there some reason why court packing is turned to and the fight over the nominee is taken as a 'well, let's make the best of this?'"

Because the Republicans had a majority in the Senate then and have a majority in the Senate now. If the Democrats had a majority in the Senate they could play McConnell's game, but they don't.

[Sebastian H]

Jack "... I would quibble with.

It does seem like this ultra-high-stakes 9 lifetime appointments system we're locking into right now is maybe not the objectively ideal approach."

In my view a lot of the problem is "ultra-high-stakes". We've essentially given up on the amendment system, and decided that amending the Constitution (even on big changes) through judicial 'interpretation' is the way to go. That looks like the root of the problem to me. Systemically, Congress is supposed to do its thing until super-majorities amend the Constitution to remove it from Congressional purview. By essentially letting the Supreme Court amend the Constitution, and relying on them to do so in more and more cases you end up with super-majority like authority being wielded by 5 individuals to regularly overrule democratic majorities. There is also the question of what judges are supposed to do. If they are just another wholly political branch, it isn't clear why we should give them any power to overrule Congress at all. I tend to think we should have an ethos of trying to really cleave to the Constitution with the idea that changes to it come through the amendment process, but that is pretty pie in the sky at this point.

But at this point I don't know how we rein it in. Having a regular rotation of replacements (18 year terms?) would take some of the pressure off by making it less of a lottery whether or not Presidents got appointments. But ultimately we need to decide that Congress needs to take more charge of changing things, and that amending the Constitution on important issues is important.

[sapient]

Of course, the Dems don't have the same tools, but I'm assuming that they must have some and there should be pressure on Flake and others like him.

No, Democrats don't have the same tools. McConnell had the Senate. We can't do what McConnell did, until further notice. Sad, I know. I wish too.

I think we will be hugely fortunate if we win the Senate. We should work really hard for that. And then we should be as hard ass as possible, because short of that is war. And that is the segue to:

absent that, the wheels come off. i have no idea what that looks like, ultimately. it probably will not look like any one thing, it'll be disorder, and other orders good and bad will emerge.

It will look like Syria, if we fight. If we don't fight, it will look like perpetual Nazi Germany.

Do you see now why I [in Obama times] favore helping countries who were fighting against incredible odds? Because without help, they were f'd. I hope that doesn't happen to us, but I fear it. Syria used to be a nice place. I talked to my refugee Bosnian friend who used to vacation there.

[bobbyp]

If we are going to get through all this we probably need to accept even reluctant sort-of allies.

Who is "we" kimosabe? You, Sebastian, have consistently supported "those who brung you", and here you are. I am surprised you are surprised.

But let's play the game you lay out:

Scenario 1: Sure. AND you aggressively fill lower courts with liberal firebrands no older than 40. You also expand the federal courts and add more judges (I believe this is an institutional priority due to workloads).

Scenario 1b: Well sure. OK

Scenario 2: Don't quite understand how you are blocked but can still "break" things. So depends on what combination of "don't control" you assume.

Scenario 3a, 3b: Either is OK by me. The GOP has shown that 3b is an effective political strategy. So don't see your point here.

[jack lecou]

Our Constitution, which I have for most of my life held up like the Torah, is not up to what's happening now.

I don't think the Constitution is a holy document even on its best days (I'm not sure Jefferson's idea for throwing it out and rewriting it every generation was half bad), but what's actually kind of infuriating to me is that it *was* up to handling this.

What hasn't been up to it are the people. The actual human beings who are supposed to be responsible for its care.

For example, this was exactly the sort of thing the electoral college is supposed to prevent. Yet on the Monday after the second Wednesday in December the electors -- actual thinking human beings every one of them, by design -- and rubber stamped the thing like automatons.

Failing that, there's like, an emoluments clause. Or there used to be. I'm not sure how it's enforced -- I suppose nobody is -- but I'd think at minimum that all the humans in Congress and the Court that took their own oaths seriously should never have allowed this President to mouth the empty words that formed his.

And then there's impeachment. High crimes and misdemeanors isn't actually that exclusive. It's an old term of art that pretty much means any kind of shenanigans whatsoever. There's been shenanigans aplenty. Enough to have a trial for the good of the republic and at least see if anything sticks. But the humans who could do that -- even a lot of Democrats -- don't think it's worth fussing about.

It's like a bunch of peaceful medieval villagers finally getting raided by vikings and then refusing to pick up or use any of the weapons from the village's well-stocked armory. The swords and spears their ancestors carefully packed away in that armory for *exactly* this kind of eventuality.

Nope. Everyone is so used to trudging along mindlessly tending their parochial little plots and having everything more or less work out, that they just say, "Why would we do that? We *never* use those swords for anything..."

[sapient]

You are absolutely right, jack lecou. Thanks for that.

[sapient]

People, under the electoral college rules (with possible interference), elected treason.

[Sebastian H]

"The GOP has shown that 3b is an effective political strategy. So don't see your point here."

They've shown its a pretty effective political strategy at breaking the country.

[wj]

As I recall, the intent of lifetime appointments was to insulate the courts from politics. And in that it was somewhat successful. See, for example, the number of decisions that have gone against Trump by judges appointed by Bush, Reagan, etc.

Unfortunately, the Supreme Court has lately chosen to embrace politics rather than stay insulated from it. To my mind, the question is how we get the Court to step back again.

If we're unlucky, that will require a complete personnel turnover. But maybe we'll only need to replace a couple. Here's hoping.

[wonkie]

We are fucked. I will keep donating and voting of course but I ahve no hope for the future.

[Sebastian H]

"Who is "we" kimosabe? You, Sebastian, have consistently supported "those who brung you", and here you are. I am surprised you are surprised."

You've consistently supported the heighten the contradictions strategies and maximal divisiveness strategies, and here you are...

But we are probably in dire enough straits that we have to put up with people who aren't perfect. So I'm still happy to work with you.

[liberal japonicus]

https://www.yahoo.com/entertainment/democrats-risky-longshot-blocking-trumps-next-supreme-court-pick-214353853.html

but this is unlikely as the article points out

For one thing, 10 Democratic senators are running for reelection in states that Trump won in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their reelection chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.

[sapient]

wonkie, you have to hope. We have to hope.

You saw my prediction, either perpetual Nazi or Syria. But stuff might happen. And we can work to be on that side.

[wj]

...at minimum that all the humans in Congress and the Court that took their own oaths seriously... [emphasis added]

And there we have the core problem. There have always been those who valued power above honor. But now they seem to constitute a majority in the Congress. And that's something that a system which bothers to have officials take an oath of office is ill equipped to deal with.

[jack lecou]

They've shown its a pretty effective political strategy at breaking the country.

Indeed, the Republicans have consistently proven *highly* effective at breaking the country - and any semblance of decency or responsible government - over at least the last 4 decades or so.

I'm not sure that unilateral disarmament on the other side is the way to fight that. I think it's been tried. The Ds sticking to the rules of restraint and fair play in the face of the Viking raids has basically just let the Rs wreck things that much faster.

I mean, scenario 3 is basically where the Rs have been living for some time. And what with demographic changes, are probably doomed to live out the rest of their current metamorphosis.

And what they have shown us is that being on a knife edge is *exactly* the time to deploy all the dirty tricks you can. In fact, with enough supreme court seats, you can apparently gerrymander and vote suppress your way into power from the wrong side of the majority altogether.

[wj]

For those of you who say we have little or no hope, consider this. The worst crisis in our nation's history was brought on by those who were willing to break the country if they couldn't control it. They failed -- the cost was enormous, but they failed.

A century and a half later, their spiritual and philosophical (and in many cases, I suspect, genetic) descendants are having another go. But the rest of us beat them once, and we can do it again. It won't be easy, or cheap, but it can be done.

[Sebastian H]

Talking breezily about 'unilateral disarmament' isn't particularly helpful. I'm pretty sure a concerted effort to kidnap, rape, torture to death the children of prominent Republicans could have a strong effect, but at that point why bother winning? There is worrying about 'restraint' and there is acting in ways which fundamentally attack the ability to keep having a functioning government. Saying "they aren't trying to have a functioning government" is a reason to defeat them, not a reason to attack the ability of having a functioning government.

It would probably be better to totally remove the ability of the Court to overrule Congress than it would be to leave the Court the ability to overrule Congress and act to fully legitimize politicizing it.

"And what they have shown us is that being on a knife edge is *exactly* the time to deploy all the dirty tricks you can."

I'm not sure we can survive ONE party that thinks this is true.

I'm completely certain we can't survive BOTH parties that think this true.

[jack lecou]

We've essentially given up on the amendment system, and decided that amending the Constitution (even on big changes) through judicial 'interpretation' is the way to go.

I'm with you on re-normalizing amendments. I think it's really weird that we've somehow just decided these can't happen anymore (or don't need to, or...? Like I said. It's weird.)

But I disagree that that's the problem with the courts. Like, Abood/Janus is a good example.

Sure. We *could* decide to have a constitutional amendment to enshrine labor rights. That'd be great. And that would presumably have settled the Janus issue.

But it's actually kind of crazy to do that for every slightly tricky question that comes up. The US Constitution is a little on the terse side, sure, but incorporation of all the clarifications and caveats embodied in all the umpteen billion pages of interpretational case law would push it a bit over to the other side.

In some cases, and Abood is a pretty good example, it's perfectly sensible for the courts to make those kind of little annotations in the margins without changing the body text. It was a perfectly sensible decision that had worked fine for years.

Janus, OTOH, was a frankly ludicrous case, whose issues had been considered and dismissed 40 years ago. It was quickly and rightfully dismissed by the lower courts as 'nothing new to see here'. And it should have stayed that way. The court entertaining it at all -- and they've been signaling they'd like to do something like it for awhile -- was purely because public sector unions are politically and ideologically inconvenient for the party now in control of the court.

That partisan control of the court isn't some kind of accident, or some kind of spillover effect because otherwise sober jurists have been poisoned by all our overly harsh partisan discourse our here or something. It was the *plan*. A cadre of loyal, litmus-tested partisans on the bench is one of the key cavalry formations in the Rs little army.

[jack lecou]

It would probably be better to totally remove the ability of the Court to overrule Congress than it would be to leave the Court the ability to overrule Congress and act to fully legitimize politicizing it.

This is the thing though.

Rolling over and letting the McConnell Maneuver stand already fully legitimizes it.

Proceeding along, business as usual, while Rs appoint a sequence of naked partisans via dirty tricks -- and Ds optimistically nominate moderate jurists with experience that subsequently get blocked -- isn't going to make people think oh, gee, I guess appointing nakedly partisan justices isn't legitimate anymore.

It's just going to result in a court in 2059 that has like 9 Ross Douthat clones on it or something, and everyone thinking that's totally normal.

The problem is that it's already legitimized. It's too late. The way to delegitimize it would have been to *fight* it, by, I dunno, giving Merrick Garland a hammer, a nail, and a brass nameplate and telling him to walk in to 1 First St NE and tack it to an office that looked nice to him.

That wouldn't break the country *more*. It would break the country less than the alternative (which is where we live now).

[jack lecou]

Or to put this another way:

Let's imagine this country is like a big tensegrity sculpture held together by structural members, like the constitution, but also little bits of string and cable we call "norms".

The Red Team has been busy sawing through those norms for about 40 years. At this point, it looks like some really important bits might be falling off.

The Blue Team response has largely been either "Oh, it's no big deal." or "Oh dear, this is bad, but nothing can be done."

That's the unilateral disarmament.

The alternative I'm proposing is not that Blue pick up a knife and help Red saw. I'm suggesting they get some duct tape, wrap Red up in a ball of it while taking his damn knife away, and then try to tape some of the sawn off bits back together.

Using duct tape is a dirty, unseemly, extraordinary measure. And in the end, our sculpture is not going to look exactly as sleek as before, what with all the tape patches. But it'll be standing.

And that's better than just pretending things are normal while things collapse as more and more bits get sawn off.

(And who knows - once we have Red safely taped up, maybe we can get out the crimps and cable and make some proper repairs. Even improvements.)

[bobbyp]

You've consistently supported the heighten the contradictions strategies and maximal divisiveness strategies, and here you are..

This is a slur. Fuck you.

[bobbyp]

My apologies. That was written in anger and haste. I have consistently derided the so-called "heighten the contradictions" strategy. This is not to say that I am much further to the left than most of the population. I am acutely aware of this.

But I will not stand for deliberate and dishonest mischaracterization of my "political strategy" analysis, mistaken as it may be.

I have consistently pushed for the "left" to push the Democratic Party "further left".

'Nuff said.

But: Fuses are getting short. Of this there does not appear to be any doubt.

Thank you.

[bobbyp]

The alternative I'm proposing is not that Blue pick up a knife and help Red saw. I'm suggesting they get some duct tape, wrap Red up in a ball of it while taking his damn knife away, and then try to tape some of the sawn off bits back together.

Jack, I love your stuff, and support you 100%, but I am at a loss as to what this means regarding a political strategy going forward for Dem Congresscritters and Senators. In the House, they can do nothing absent holding the Speakership. And in the Senate, the GOP is bent on turning it into a institution where untrammeled majoritarian rule is the norm (not that I object in principle).

Seems to me the only way they can gum things up is to win more elections.

[jack lecou]

Trying not to fill up the whole thread, but one last one:

Sebastian, I think what's been bugging me about scenario 3 -- and I think I was trying to put my finger on this with the thing about knife edges and timing -- is that it's sort of leaning heavily on the fallacy that control of the courts is just a capture-the-flag token with no real consequences. In particular, with no electoral consequences.

Bush v. Gore should certainly have taught us that's not true. And if not, it's looking depressingly like a series of voter suppression, union suppression, and gerrymandering cases might drive the lesson home.

But if you replace the assumption that the court is just some kind of trophy that sits there making orthogonal decisions until it changes hands with the fact that it makes electorally relevant decisions, then scenario 3b isn't quite the "pointlessly take control of the court only to lose it in the next narrow election and set a new precedent for Rs to abuse" you made it out to be.

Scenario 3b is just as likely to be "take control of the court in order to undo a bunch of unjust decisions and restore voting rights, fix gerrymandered districts, maybe get some more money out of politics, and then win the next election in a landslide because the goddamn election results actually comport with the popular vote for a change".

And yeah, I'll concede that wouldn't be the prettiest way to do that. But the point you were making wasn't about the aesthetics, it was about effectiveness. You didn't say 3b was bad because it would work but it wasn't nice, I think you were saying 3b was bad because it would pointlessly backfire.

Not nice but effective puts a rather different complexion on it.

[Sebastian H]

"Seems to me the only way they can gum things up is to win more elections."

That would be the best idea, yes.

[jack lecou]

Seems to me the only way they can gum things up is to win more elections.

Well, yes. That's what happens when one side has power and isn't afraid to use it.

And the most practical and helpful thing to do is, as ever, to go out and grassroots organize and recruit exciting new candidates and so forth and try to win an election. Which is happening to an inspiring degree.

But what I'm getting at here is that when and if we do win and get another turn, everyone needs to remember that the other side isn't playing a genteel little game of checkers or whatever. They've not only flipped the board over, they pulled a knife and started cutting people. It's not a game at all anymore (if it ever was).

We don't necessarily have to draw a knife and do any murders in response, but we do have to stop pretending that everything is normal and we're all still just playing checkers. And then take actions proportional to the threat.

Hopefully it's not too late. Obviously a lot of this crap from the Red team is specifically designed to tilt the field so far over that they can maintain power even as their electoral minority shrinks ever smaller.

Intellectually, I suspect that's still a losing strategy. In the long term. Emotionally, I'm a little less sanguine at the moment. And worried about how far they'll actually go if the gentle power grab techniques they've been using so far start losing their potency. When there's enough insecure totalitarian a-holes in the halls of power, mere knife fights can escalate to firing squads and battle tanks in the streets remarkably quickly.

And ether way, the long term is a long way away. In the recent past, 4000 Americans died in the aftermath of a hurricane and nobody blinked. In the short term, they've been locking kids in cages and Trump apparently has a 45% approval rating. In just the medium term even more people are going to suffer and die...

Sorry. It's been a long day.

[Hartmut]

My first reaction to the news (after: 1.fake news and 2.oh digestive final product) was 'he is showing his true colors by retiring NOW'.
He knows very well that, the way things are, the GOP will get a replacement through before there is chance of losing the senate in November. Either he does not give a vulgar term for intercourse or he actively wants a RWNJ as successor. In either case [insert incivil expression here]!

[Dave W.]

The problem I foresee with scenario 3a is: Democrats put their efforts into 3-4 major policy bills, only to see them gutted by the Supreme Court after the next election, by which time Republicans are in control of at least one house and able to block both fixing the laws and fixing the court. What value then was 3a? See: 2010 election, ACA.

[Girl from the North Country]

This is just to say that I think jack lecou's @12.14 metaphor of the intensegrity sculpture and its ongoing dismemberment is pretty much perfect.

[Girl from the North Country]

"tensegrity"! Probably a Freudian slip (it was a new word to me, I had to look it up).

[Pro Bono]

Democracy in the USA is broken.

The Republican party holds the presidency despite its candidate getting 3 million fewer votes than his opponent. It has held the presidency in three out of five terms this century despite winning the popular vote only once.

The Republican part controls the Senate despite its candidates winning 19 million fewer votes in the three elections which have determine its current membership.

The US constitution provides that Supreme Court justices should be appointed by the President with the advice and consent of the Senate. The intention of the drafters was surely that the constitution of the Supreme Court should broadly reflect the will of the people.

It would be contrary to the will of the people for another right-wing justice to be appointed. It's time for the Democratic Party to make a stand for democracy. It should refuse all co-operation with the appointment process unless Trump nominates a moderate candidate - Merrick Garland would be a suitable choice.

If it has to close down the Senate to prevent an appointment, so be it. With McCain absent, the Republican Party will be unable to muster a quorum.

It's time to make a stand for what is right.

[cleek]

let's hope RBG is immortal

[byomtov]

The trouble with Scenario 1a is that Congress doesn't control everything. Lots of the GOP nastiness happens at the state level, and the conservative court will endorse it no matter what Congress does.

The trouble with Scenario 1b is that you won't know if the court is obstructing things for several years, at which time it may well be too late.

As for amending the Constitution, there is a reason it's not used to make substantive changes. The reason is that it doesn't work. It never worked very well for that purpose. We have twenty-seven amendments, of which ten are really part of the original Constitution and three required a war to pass. At least five of the rest are anodyne procedural changes and clarifications.

Besides, in today's environment getting 3/4 of the state legislatures to ratify anything other than the simplest most innocuous measure seems impossible.

[cleek]

on the other hand, the NC GOP is giddily putting amendments to the NC constitution on the Nov ballot in order to entice its dipshit voters to come to the polls.

we're going to have an amendment that preserves the right to hunt and fish using "traditional methods" ! something absolutely nobody was clamoring for.

[byomtov]

On the matter of the court, I do like the idea of the 18-year term, though there are details to be attended to, mostly what happens with deaths and resignations. They would introduce some randomness into the process.

Another possibly worthwhile change would be to require a super-majority, 3/5 or even 2/3 to confirm a justice. That might reduce the number of pure partisans on the court.

A third would be to set a time limit - 120 days from nomination? - such that after that time any Senator can demand a vote and no business can be conducted until it is held. The objective here is transparency. The whole business of holds and whatever is obnoxious, as it lets Senators take action without being clearly accountable for it. Their job is to vote, so make them vote.

[wonkie]

We are watching a coup/ Republican voters are voting against representative government and voting in authoritarianism and they are doing it out of disrespect for everyone but themselves. I try to be reasonably polite when I discuss politics and I have Republican friends that I would like to stay friends wiht--but that is what they are doing. They watch Faux because they like the ego stroking of being told over and over that they are the good people and everyone else is bad. And for that ego stroking they are taking representative government away from everyone bu themselves and they are happily supporting policies that screw everyone but themselves. Nature is dying all over the planet and the are killing our natural areas. They are destroying everything hat is beautiful and good and doing it so they can congratulate themselves on being better Americans than everyone else. I think taht of all the vices a person can have, intellectual dishonesty is the one I find hardest to forgive and that is an essential component of the Republican perspective. They support politicians who lie because they are never honest with themselves about their own participation in public affairs. Trump appeals to their inner Nazi, but the Republican party has been making the same appeal more subtly for many years. I heard a British citizen discussing this on TV a couple days ago. She said she had not realized who many bad people there were in the US, that she had thought of us as a generous and optimistic nation and was surprised and the selfhishness and meanness. I guess I am not surprised, not when I think about it. Sinclair Lewis saw this coming a long time ago.

[Michael Cain]

If it has to close down the Senate to prevent an appointment, so be it. With McCain absent, the Republican Party will be unable to muster a quorum.

Under the Senate Rules, there is a presumption that a quorum is present unless a Senator in the chamber raises the question. If 50 Senators choose to sail along by voice votes, and avoid the very small number of situations where a roll call is required, how are you going to stop them? Cloture to end a filibuster is one of the things that requires a roll call; Supreme Court nominations can no longer be filibustered.

[cleek]

really, the only hope for moment is that McCain is too sick or too grumpy to vote Yes and some other Republican feels guilty about the hypocrisy.

in other words: there is no hope.

and, again... RBG.

it'll be 6/3 before 2020.

[sapient]

I think we have to live with the new reality, which is what Republicans have wanted, that if we have any collective desire for compassion and equality, we'll have to find a way to do it privately. Obviously, private efforts to help the poor, or to provide dignified old age to most people, or to have a middle class in our society have never worked.

America as the beacon of hope for people who are facing oppression and violence in their own countries is no longer. The attempt to move towards a more tolerant future, with an improved standard of living for all, a cleaner environment, we no longer have a government that supports those things. We have a Russian-style oligarchy.

The rich have theirs, fuck everyone else. They can now indulge their petty cruelties at will.

[Ugh]

I've not read all the comments so apologies if this point has been made, but the consequence of Mitch McConnell's Garland gambit is that the Senate will never again confirm a SCOTUS nominee of a POTUS of the opposing party, no matter how long the vacancy may last.

That is, absent major structural changes to how U.S. democracy works, which I'd not rule out.

[cleek]

the Senate will never again confirm a SCOTUS nominee of a POTUS of the opposing party

yup.

McConnell will go down in history for this - no matter how they try to sell this as "The Biden Rule" (and they're trying, hard).

[wj]

Well, yes. That's what happens when one side has power and isn't afraid to use it.

Jack, there are reasons other than fear to refrain from using (or abusing) power when one has it. Like the ability to look into the future and see that what you do today may come back to haunt you next time. Not to mention minor factors like honor and morals.

[cleek]

There may be some debate over how punctual the Senate needs to be in presidential advice and consent. There may be furious debate over the newly-invented rule that presidents may not make certain appointments during election years because reasons. But it should be a fairly standard-issue bit of bipartisan common sense that, say, presidents who are under active investigation for acts of potential treason should not be granted unilateral power to make lifetime federal appointments—not until they are cleared of wrongdoing.

i mean, as long as we're making a wishlist of how things should be.

[Pro Bono]

If 50 Senators choose to sail along by voice votes, and avoid the very small number of situations where a roll call is required, how are you going to stop them?

A roll call is required if a Senator calls for one. So you need one Democratic Senator present to make a quorum call, and to prevent unanimous consent to a motion to abandon the quorum call. I see no requirement in the rules for that Senator to answer the roll call.

[russell]

possible paths to a solution, or at least an improvement:

historically, mid-term voter turnout is about 40%.
get people to the polls.

2020 census is coming up. that will determine, or at least contribute to, re-drawing of electoral districts. get involved with organizations like common cause and league of women voters, who are working on rolling back gerrymandering through better rules for re-districting.

spend money on organizations with good lawyers.

if there's an opportunity to be really visible with your point of view - non-violent demonstration, call or write or visit your senator or rep's office, etc - do it. show up.

lastly, find the people and pursuits that build you up and spend time with them. be kind to everyone.

the court is, in general, not going to be friendly toward the interests of non-powerful people for, probably, another generation. work around it.

[cleek]

and before we can talk about packing, we have to talk about The Judiciary Act of 1869

[wj]

wonkie: they are taking representative government away from everyone bu themselves and they are happily supporting policies that screw everyone but themselves.

If only it were so, it would at least be understandable. Reprehensible, but understandable.

But in fact they are supporting policies which will massively screw themselves. Even more than everybody else. See the restrictions of Food Stamps and other welfare that is actually more heavily used by them than by the people Faux News has taught them to despise. A wonderful 2nd Amendment metaphor about shooting oneself in the foot is irresistible....

[jack lecou]

Jack, there are reasons other than fear to refrain from using (or abusing) power when one has it.

I mean, it's just an expression. Obviously the point is just that they simultaneously hold the critical positions in the halls of power, and are not respecting inconvenient trivia like honor, norms, or other soft constraints (possibly even some hard constraints). The stuff that we might have previously relied upon to moderate the exercise of that power.

(If we're quibbling, though, I might point out that an apparent lack of concern about future bad consequences, or for the censure that comes from violating honor and morals, could be fairly characterized as being 'unafraid' of those things...)

[Michael Cain]

So you need one Democratic Senator present to make a quorum call, and to prevent unanimous consent to a motion to abandon the quorum call. I see no requirement in the rules for that Senator to answer the roll call.

There is a history of members raising the quorum question, then declining to respond to the roll call ("quorum busting"). This was a particular problem in the 1890s. I do not know the details, but various sources say that precedents to defeat the practice were adopted. There are something over 10,000 precedents -- exceptions and extensions of the actual written rules -- that are still in effect.

[Nigel]

While all this is interesting, I suspect the only thing that really matters is winning in November. And in 2020.

[russell]

As noted above, I see the SCOTUS appointment issue this way.

No appointment until the Mueller investigation is complete and resolved. It's insane to allow someone whose campaign, administration, and possibly person are under active investigation to appoint a justice who is likely to have to weigh on on precedent-setting rulings concerning those investigations.

Screw the McConnell rule. I want the Mueller rule.

If you're being investigated and the SCOTUS is likely to have to rule on important issues involved in that investigation - can the POTUS be indicted, can the POTUS pardon himself, and on and on - you do not get to appoint a justice.

The Trump presidency is turning out to be an utter bollocks. It makes a mockery of our form of governance. The people who voted for him need to take a look in the mirror and consider what they've unleashed on the country.

And yeah, I know, some folks like the policies. Bugger that.

[Nigel]

The Trump presidency is turning out to be an utter bollocks. It makes a mockery of our form of governance...

Trump is the closest thing I've seen to a fascist in power in the US in my lifetime. The Denver rally talk of ICE agents "liberating"twins from "thousands" of MS13 illegal immigrants - and its rapturous reception by the crowd - was downright scary.

Rules and norms have gone out of the window. The only thing which counts is a majority in Congress; nothing else will slow him down much.

[Nigel]

Towns, not twins !
Damn you, autocorrect...

[cleek]

MS13, ISIS, ebola, Iraq, Iran, NK, Welfare Queens...

the GOP has an endless supply of ludicrously-inflated threats with which to rouse the rabble.

[wj]

cleek, it is noteworthy that your list doesn't include Russia.

[Pro Bono]

Michael Cain is right: the presiding officer in the Senate can count a member as present during a roll call if he's there but fails to respond.

However, Democratic Senators could make the procedure very difficult in this unusual circumstance that the majority party has only 50 members at most able to be present. I want to see it do exactly that.

[hairshirthedonist]

Funny headline:

Trey Gowdy, who headed the Benghazi investigation for more than 2 years, claims Mueller is taking too long

http://theweek.com/speedreads/782008/trey-gowdy-who-headed-benghazi-investigation-more-than-2-years-claims-mueller-taking-long

[cleek]

“I hate it: I meet these people, they call it the elite,” Trump said during a rally in Fargo, N.D., on Wednesday night. “We got more money, we got more brains, we got better houses and apartments, we got nicer boats, we’re smarter than they are, and they say they’re the elite. You’re the elite, we’re the elite.”

it's beginning to sound a lot like fascism. every time he speaks.

[hairshirthedonist]

I just want to know who "they," "we," and "you" are, very specifically. I'm just guessing that it would make even less sense than it does with vague pronouns if he had to attempt to identify the people he was referring to.

[hairshirthedonist]

I'm also trying to picture the super-nice apartments in Fargo.

[Hartmut]

Nigel, personally I think Trump acts like a fascist would do but imo he (personally) does not qualify for the title (while some of those around him do). Not that there is much of a practical difference but I think one has to have something of a 'political philosophy' to 'earn' the '-ist'. Trump has no consistent beliefs beyond 'I have to be the center of attention and should be allowed to treat anyone like bodily excretions of a semisolid nature'. His interest in politics is essentially zero.
If he could behave the way he does under a different system, he'd change his rhetorics in an instant. It's just easier under a RW banner to get into position.

The GOP leadership is a different kettle of fish. Some genuine fascists and a lot of DNVP types that believe they can control the fascist beast and use it as an attack dog (worked so well in 1933, didn't it?).

I think we should begin to refer to the GOP as the Gottwald Party and ditch 'Mitch' in favor of 'Klement' when referring to McConnell.
( https://en.wikipedia.org/wiki/Klement_Gottwald ).
The guy was a commie but used classic fascist rhetorics and tactics in combination with parliamentary shenanigans to achieve his goals.

[russell]

it's beginning to sound a lot like fascism.

It's populist demagoguery.

He's stoking up the base by telling them how everyone is looking down on them, and how much better they are than the folks they think are looking down on them.

I'm sure a lot of Trump's base does have more money than me, and given the housing market I'm in lots of them probably have a nicer house than me, and I don't have a boat so they've got me beat there. Maybe they're smarter than me, but I'd want to see proof on that one.

Those folks are never going to vote for anyone other than Trump.

The folks who actually are a paycheck away from sleeping in their cars are the ones that IMO need to think twice before they give that man their money, their vote, or their support. He's playing them.

He tells them I'm their enemy, but I have nothing against them at all. On the contrary.

Maybe some of them will figure it out. A lot won't, is my guess. Some will, and they'll probably end up voting something like democratic socialist, if that option is available to them.

I rant away here on ObWi, but when I talk to people I know who actually are Trumpies, I mostly don't get into it at all. If they want to talk politics, I am happy to do so, and I do my best to keep the conversation on points of fact. I'm completely sure that my dislike of, and complete lack of respect for, the POTUS comes through, but in general I neither dislike nor disrespect the people I talk to.

My Trumpie niece and her husband are selling their house. His job's in some jeopardy, the mortgage is stressing them out. She's having panic attacks.

I'm not going to get into politics with her or her husband, who is both a great guy and a huge Milo fan. It gives me some cognitive dissonance to fit "great guy" and "huge Milo fan" into the same sentence, but I have to recognize that both are true.

Trump isn't going to do a fucking thing for them. They'll either figure it out, or they won't. My job relative to my niece is uncle, not political mentor.

If I bump into Huckabee-Sanders, I'll be happy to give her are more complete view of my opinions. She's doing this shit for a living.

[russell]

Here's a winning strategy for (D)'s, maybe:

The water in Flint is still poisonous. Your town is next.

Fracking is causing earthquakes in OK. Your town is next.

Trump's trade war is putting companies out of business and people out of their jobs. Farmers are going to lose their farms. Your job is next.

The (R) budget wants big cuts in Medicaid and SS. You know, the benefits you earned over a lifetime of work. Say goodbye to it. Your health and your groceries are next.

Do you benefit from food stamps, Medicaid, housing subsidies? Kiss it goodbye. Your health, your roof, and your groceries are next.

If you're not rich, Trump and his pals are coming after you. They're coming after your job, your savings, your house, your retirement, your breakfast lunch and dinner. They want your stuff.

Make America Great Again. Or at least, Not Shitty. Vote for anybody but a (R).

[russell]

Feel free to add your own comments to my list. I bet we can get this thread up over 500 comments, just enumerating the ways in which the (R)'s are fucking over every damned working person in this country.

They're coming after your stuff. They have billions, and they want yours, too. They want it all.

Don't vote for (R)s.

[Countme-a-Demon]

http://www.lawyersgunsmoneyblog.com/2018/06/fascist-rhetoric-consequences

[liberal japonicus]

I'm again late to this, but not because of lack of trying. At the risk of focussing on tone rather than content, I want to note about this

But we are probably in dire enough straits that we have to put up with people who aren't perfect. So I'm still happy to work with you.

By'we', do you mean conservative gay men or do you mean the left side of the political spectrum? Or, everyone, a sentiment which Myles na Gopallen used to satirize when he would harangue 'the Plain People of Ireland'. It may seem very clear who the 'we' is for you, but reading the OP, you start off with the first and you seem to move to the last.

One reason I think I flagged this is that the rhetorical move of ascribing the feeling of the majority to one's own opinions and beliefs is so common that we often don't notice it. It really obscures more than it clarifies. The knife is turned with 'putting up' with 'people who aren't perfect'. This leads to a devaluing of the experiences and opinions of others. It takes a discussion of strategy and makes it into a litmus test. This from TPM shows that one can talk about strategy without making claims about who is 'perfect'
https://talkingpointsmemo.com/edblog/the-critical-question-facing-democrats-and-the-court

of course, Josh Marshall can quote his readers to provide a balanced piece, which is a big difference, but my thinking is that if one can't do that by acknowledging the other issues that people are bringing, you are going to get frayed tempers, so you have to use other means, which often means perhaps soft-pedaling your own feelings about what is the 'right' way.

I write this not because I want to pick a fight with you. I'd like to move your name out of alumni and into authors and I think with Kennedy's retirement, there are going to be a lot of things that you will want to talk about. Fortunate for us, but maybe not so fortunate for the country. But it did bother me and I wanted to say something, but, as usual, it takes me too long to figure out what I want to say...

Anyway, let me know or drop a line off list if the name change is agreeable.

[Sebastian H]

Liberal japonicus, I was responding to "Who is "we" kimosabe? You, Sebastian, have consistently supported "those who brung you", and here you are. I am surprised you are surprised."

So the 'we' you quote is in response to bobbyp calling me a Trump supporter. I haven't even been a liberal Republican in more than a decade. I haven't even voted for a Republican in more than 15 years. Yes I was raised in very conservative family, and I'm temperamentally conservative, but I'm rather noticeably not a Trump supporter.

Which is the kind of hyperbolic falsity that you would expect from Trump, but it came from bobbyp.

So in my response to bobbyp I noted how I saw his rhetorical past and present, and then said, as you quote. "But we are probably in dire enough straits that we have to put up with people who aren't perfect. So I'm still happy to work with you."

That 'we' is something like "those of us who would prefer not to see the US slip into dictatorship/or facism/or whatever the hell sick iteration Trump is trying to stumble toward". The people who aren't perfect would be myself (personally as someone who bobbyp falsely labels a Trump supporter) and bobbyp (someone who I think of as willing to throw firebombs first and look to see what building was in the way second).

But what I note immediately after is that this is precisely the time where a pretty conservative person and a fairly firebrand-oriented person are going to need to work together.

That is why I called this post "gaming out court packing". I'm conservative by nature, but I also see the need to fight Trump and the forces that led us here. It is going to be a long fight, so we need to get well beyond the tactics of "just do something". We need to do something with the view of having something left if we win. So if court packing makes strategic sense, as opposed to "you were mean and I'm going to burn things until you stop sense" then we should do it.

But so far the discussion hasn't led me to believe that might be true.

The reason I wanted to game it out is to talk about the assumptions that get us there. If we are really in the position to pack the Court, that means we have already done a large bit of winning. It means we have won the House, the Senate, and the Presidency. Given THAT fact, I am arguing that it would be foolish to break the Court further than McConnell has already done because we would be breaking an institution that we still need. We shouldn't do that unless absolutely necessary, and we won't know if it is absolutely necessary until we see how the members of the Supreme Court react to the fact of Democrats beating back Trumpism on that level.

[hairshirthedonist]

It gives me some cognitive dissonance to fit "great guy" and "huge Milo fan" into the same sentence, but I have to recognize that both are true.

I feel you. I’ve probably mentioned more than once that a good portion, perhaps a majority, of my good friends are Trumpers. I only once in a while really get into it with them, when something is just too stupid to let go by, but I mostly avoid the conversation.

What I cannot do is write them off. I know they’re good people. But they’re looking at the same thing I am and seeing it completely differently. I think I’m right, and I think they’re wrong, but it’s not the entirety of who or what they are, even if I’m right about being right.

I can’t explain how this is so. I can only recognize that it is.

[russell]

my niece's husband was a very good wrestler in high school. he loved it.

on one occasion, he hurt one of his opponents. so, he quit. because he didn't want to hurt anyone.

and, he'd probably take a bullet for milo.

damned if i can make sense of it.

so, i remember that he's my niece's husband and that he's a really good guy. and mostly leave it at that.

[russell]

pretty much this.

sucks to be people like 'us', i.e., like most folks commenting on this thread.

don't give an inch. assume more than a few inches will be taken from you, but don't give any.

do your best. find ways to enjoy your life. be patient. be kind.

it's been worse. it'll be better again.

[Donald]

Haven’t read most of the thread and I have nothing much to say, but here is an option Max Sawicky suggests

https://mobile.twitter.com/maxbsawicky/status/1012112212650012672

Impeach some Justices. Obviously you need some more Democrats to do this. I leave to others whether there are grounds for doing this.

[Pro Bono]

The Democratic Party should be campaigning with everything it's got for a less unbalanced Supreme Court. It's made its point about the Republicans' obvious insincerity about procedure, now it needs to start talking about what's right. And it is simply wrong to have a partisan Supreme Court with a 6-3 majority for the minority party.

A highly partisan Supreme Court might do any of the following:

- restrict women's reproductive freedom
- increase the power of big business to control politicians and elections
- restrict the ability of the federal government to protect the environment from destruction by corporate interests
- allow extreme partisan gerrymandering
- allow state governments to stop people voting
- allow hostile foreign powers to influence elections in their interests and against the interests of the American people

arguments against fighting for what is right on the Supreme Court amount to saying that if those things become the issue, the electorate will vote in favour of them.

I say tell the electorate the truth, and let it decide.

[Michael Cain]

They're coming after... your retirement...

Of course they are. In hindsight, my entire adult life has been aimed at my retirement: able to ask my own research questions, write software that suits my own interests, etc. And the whole way it's been a struggle to accumulate enough. Paid the taxes to give my grandparents and parents a retirement. Managed to give the kids enough of an inheritance up front to help get them established. Now I've got a chance to make the maps and write the books. If we get 20 years in before they bankrupt me and the spouse, I figure that's a good run. And we'll sneer at them every minute of that time.

[liberal japonicus]

Hi Sebastian,
True, but I was trying to suggest that the seeds of that reaction were planted in the OP.

I've often wondered why the left is much more susceptible that the right to infighting, and I think it is because of the paradox of 'we'. On the left, there is a simultaneous 'this is what most people think' and 'well, maybe they don't think that, but they should' which then gets pulled back and forth. But conservatism avoids that by simply refusing to accept change.

Recently Andrew Sullivan tweeted
Preventing illegal immigration is not racist, not white supremacist, not bigotry; it’s integral to any democracy functioning; it’s a core function of government.

Slowing massive demographic change is not fascist; it's conservative.
https://twitter.com/sullydish/status/1010244380211449859

Adam Serwer replied
It’s not racist to design public policy for the explicit purpose of maintaining a white majority is quite an argument.

There is some back and forth there, but Sullivan appeals to a conservative impulse 'stop things from changing'. While that is good for creating unanimity of purpose, I think it is going to put whoever sticks to that on the wrong side of history.

[Nigel]

It's populist demagoguery.

I think the violent rhetoric against groups coupled with the reflexive lies goes beyond that. Trump is not a Nazi, but his rhetoric partakes of that thrill at violence.
There are numerous examples, but the one which struck me recently was the (undoubtedly made up) detail of ICE agents ‘grabbing them by the neck’ and throwing them in paddy wagons.

And “enemies of the people”...
https://www.theguardian.com/us-news/live/2018/jun/28/capital-gazette-shooting-annapolis-latest-live-news-updates-today-maryland

[liberal japonicus]

Wow

https://talkingpointsmemo.com/edblog/say-hello-to-your-boy-a-special-guy

The Times has a fascinating article tonight on the Trump White House’s courtship of Justice Anthony Kennedy, building a relationship and rapport to make Kennedy comfortable retiring on Trump’s watch and ahead of the 2018 midterm election. One particular detail grabbed my attention: Justice Kennedy’s son Justin was the global head of real estate capital markets at Deutsche Bank and a key lifeline of capital to President Donald Trump.

and

As many of you will remember, Deutsche Bank isn’t just any bank. As I noted in the first post I wrote about Trump’s ties to Russia and Vladimir Putin back on July 23rd, 2016, by the mid-90s, every major US bank had blackballed Donald Trump. as the Times put it in 2016, “Several bankers on Wall Street say they are simply not willing to take on what they almost uniformly referred to as ‘Donald risk.'” None would do business with him. With one big exception: Deutsche Bank.

Initially, I thought the same way as Hartmut, that Kennedy is revealing his true colors, but now, I'm feeling like Kennedy didn't stay on to be able to rule on any SupCt appeals about the Mueller probe cause this probably would have bit him on the ass.

[jack lecou]

So if court packing makes strategic sense, as opposed to "you were mean and I'm going to burn things until you stop sense" then we should do it.

I appreciate the spirit of your OP up there, and I think we're very much on the same general side here, at least compared to the alternative.

But this characterization gives me pause.

I really don't think *anyone* -- anyone on this side, anyway -- is proposing to just burn things down with no better plan than hoping the other side eventually cries uncle.

People are certainly *angry*. Some of those angry people certainly might be *mistaken* in their judgement of the best course of action to take. But being angry and mistaken isn't the same thing as the sort of thoughtless, nihilistic vengeance seeking you're imputing there.

Because even in their great and justified anger, people plainly want to do something that will work to make things better. Up to and including the people that really do want to burn shit down --- they want to burn shit because they have some notion that it's the best available course of action, not simply for its own sake. You're not the only one capable of *trying* to game things out, you know.

Indeed, as far as that goes, I'm not sure you've really gamed it out as convincingly as you think you have.

As I pointed out above, those floating "court packing" aren't proposing it just for the sake of scoring points or petty revenge. They're doing it because they sincerely view control of the court as the only way to retake some extremely important and concrete civic ground. Including, not incidentally, reestablishing and reinforcing the integrity of the fundamental institutions of democracy -- which the Republicans are currently so very busy trying to break and/or steal.

You don't really engage with this at all in your scenarios. But you need to.

There are some other unproven assumptions and unanswered questions in there too, for example:

- Assuming that packing the court will involve an expenditure of political capital. That such a move would automatically *harm* liberal politicians at the polls -- where it actually counts -- seems undemonstrated. Republicans certainly don't seem to be suffering too greatly yet from the McConnell Maneuver. It seems equally possible that it would be an investment that pays dividends, not only in concrete legal victories, but also in renewed -- or at least not reduced -- political enthusiasm among the liberal base. There's no particular reason to think it would need to totally displace the pursuit of other policy objectives either.

- Assuming that the long term majority in Scenario 1 wouldn't want to take steps to fix an obviously broken institution for its own sake. Even if the conservative justices mostly wagged their tails and played nice with their legislative agenda for the duration, it'd be pretty shortsighted not to worry about the same partisan problems flaring up again down the road. Any wise government would start to think about implementing institutional fixes, some of which might include expanding the size of the court. (This is rather like what actually happened with the Act of 1866 -- reorganizing the basis of the court to reduce the undue influence of slave states on its composition.)

- Assuming that tit-for-tat escalation is a given. That's not actually as obvious as it seems, particularly if there really are substantial political costs. The public appetite for these sorts of games could subside very quickly, and it's entirely possible that a subsequent Republican government, probably with its own fragile, knife-edge majority, and perhaps a new ideological configuration, might be unable, unwilling, or even uninterested in following through on any substantive escalation.

[russell]

I think the violent rhetoric against groups coupled with the reflexive lies goes beyond that

actually, i agree. thank you for the correction.

now, I'm feeling like Kennedy didn't stay on to be able to rule on any SupCt appeals about the Mueller probe cause this probably would have bit him on the ass.

i'm thinking he woke up with a horse's head in his bed.

lots of interesting ideas in this thread, but realistically the path forward is called 'win elections'. the (R)'s are doing what they can to make that harder, so other folks are going to have to make that much more of an effort.

it's also useful to show up if stuff is going on in your area. lots of events *tomorrow* on the immigration tip, chances are there's one in your area. show up. become an inescapable annoying pest to your senators and rep's offices. phone calls are best, then letters, chain emails are least useful but if that's what you have time for do that.

make yourself heard. get in the way. be a PITA.

[russell]

also, andrew sullivan, *immigrant*, espouses a conservatism of the traditional british 'some people are born to rule' form, which is not consistent with our history and values.

he is all for extending rights and privileges to everyone, as long as they are rights and privileges he wants to have.

people seem to think he's an interesting voice, i don't see it.

[cleek]

i'm thinking he woke up with a horse's head in his bed.

we were watching Colbert last night and he mentioned Kennedy. my wife said "I wonder how they got to him."

i thought the notion was silly.

but now... and remembering who we're dealing with.

no not silly.

[Nigel]

British conservatism is a bit more complicated than that, and Sullivan was always attached to the right of the party. The other half of the party would almost certainly be far happier with voting Democrat than Republican.

Meantime, we used to take the piss out of totalitarian Russia for this sort of thing:
https://www.washingtonpost.com/news/fact-checker/wp/2018/06/28/president-trump-announces-a-major-u-s-steel-expansion-that-isnt-happening/

[Nigel]

Big money buts judicial appointments as well as politicians:
https://slate.com/news-and-politics/2018/06/the-dark-money-campaign-to-replace-anthony-kennedy-has-already-begun.html?

[Nigel]

Buys.
Though buts might also be appropriate.

[russell]

British conservatism is a bit more complicated than that

I'm sure it is. I'm also pretty sure Sullivan is not.

Brown Spanish-speaking people have been living in the southwest, pacific coast, and mountain west of what is now the US since before Henry VIII. If you leave out the "Spanish-speaking" part, you can dial that back to before there was an England.

10% of American citizens claim Mexican heritage. Add in all of the other varieties of Hispanic heritage and it's more than that. Add in all Latin peoples and it's more than that. And they've been here since before there was a "here".

Sullivan sounds like an Irish name to me. Chances are that, absent the US accommodating "massive demographic change", no small number of Sullivan's people would have died, miserably, of starvation.

I don't need Andrew freaking Sullivan, **immigrant**, telling me what the demographic mix of the country I was born in needs to be.

Immigration has worked out pretty well for him. He just wants to shut the door on people from "cultural backgrounds" that he deems less worthy.

He can kiss my behind.

[hairshirthedonist]

Damned Hispanic interlopers!

https://en.wikipedia.org/wiki/St._Augustine,_Florida

[hairshirthedonist]

On a side note that somewhat parallels an immigrant complaining about immigrants, a not-too-distant cousin of mine informed me the other day that her great grandfather, my grandfather's brother, was a member of the KKK. His grandson recently found membership documentation in a box of his papers that had been saved over the years, but were never really looked into.

What does that have to do with anything? It's a pretty incontrovertible fact that he was of mixed race, as was his second wife. There was plenty of evidence for this that I had found, but their son, my mom's first cousin, recently took a DNA test, which estimated him as having 14% sub-Saharan African ancestry - just to put a cherry on top.

As far as the KKK is concerned, my great uncle was a black man, or at least would have been had they known. Did he know? I don't know. But he was a member!

[JanieM]

Andrew Sullivan also likes to whine about how taxing higher incomes at higher rates is "punishing the successful."

When Sally Ride died, he sh!t on her for never coming out while she was alive, writing, in his oh-so-clever debater's way, that her message to young gay people had been "duck and cover" (or something like that).

He did publish reader comments critical of him for that, and when I emailed him to say he was being a jerk, he asked me why (in his Oxford Union way, sort of like "prove it"). I wrote him four dense pages making the basic point that I have found it much easier to figure out how to "belong" in the world as a gay person than as a female math nerd, and that I (and he) couldn't possibly imagine what Sally Ride must have gone through to get where she got. He didn't use my letter, though in fairness, I was late to the party, and by that time the topic had passed its sell-by date. But nor did he acknowledge the point I had made.

He's a self-aggrandizing git, who thinks he's smart because he's clever in a debate society sort of way. Too bad being successful at debate doesn't require learning a bit of compassion and humility as well.

[wj]

lots of interesting ideas in this thread, but realistically the path forward is called 'win elections'. the (R)'s are doing what they can to make that harder, so other folks are going to have to make that much more of an effort.

What Russel said. Make the effort around the election. Do other stuff if you wish, but make sure you budget that first.

[cleek]

a few years back i found out that ignoring Sullivan did not reduce my quality of life in any appreciable way.

[wj]

Sullivan has gotten a lot less thoughtful, and a lot less interesting, than he was a decade or two ago. And the deterioration appears to be accelerating, if his last couple of columns are any indication.

[JanieM]

@cleek -- ditto. I first started reading him during the Terry Schiavo controversy. As someone who had been raised Catholic, I was pulled in by his writing about the case, which included some church history (he said that there was a several-hundred-year history of church teaching saying that it is not required to take extraordinary measures to keep alive someone who is dying). That he was a gay conservative was intriguing too. Plus, he posted about a lot of stuff that wasn't politics -- art, literature, etc. -- that I wouldn't have run into elsewhere.

I reached my limit when Sally Ride died. I just stopped reading him one day, with, as you say, no loss in quality of life, and in fact some noticeable improvement; his perpetual superior sneer was poisonous. I gather he hasn't improved.

I can't believe it's been six years since Sally Ride died.........

[Girl from the North Country]

I didn't recognise the name (although I'm sure I must have read about her at the time). What an impressive-sounding woman - I'm glad I looked her up and now know more about her.