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June 27, 2018

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I'd like to think Sally Ride was a Wilson Pickett fan:

https://www.youtube.com/watch?v=MfX2mh2zg6k

That there are, at a minimum, 49 GOP senate votes for any crap bill McConnell wants to burp up seems to be problematic.

Yes he probably checks beforehand, but still, WTF is wrong with these people?

"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."

But court packing doesn't help re-establish the integrity of the court, it destroys it. At the very least, proponents of a proposal like court packing need to very clearly explain how they think court packing gets to re-establishing the integrity of the court. The negatives are obvious, while the game plan after that is completely ignored. This world has had plenty of "break it first, then we will figure it out" plans and I don't ever remember that working.

"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."

Every major upheaval political move spends political capital. Real politics is about priorities, and that is precisely why the Democrats lost the Rust Belt states--they had a 20 year history of making it crystal clear that between "globalism" and "putting further globalism on hold until we can take substantive steps about the problems caused by globalism", they always chose globalism as the priority. They could say that they were going to do something about it, but when push came to shove, deeper globalism always won.

"There's no particular reason to think it would need to totally displace the pursuit of other policy objectives either."

This seems objectively wrong. There is every reason to think it would need to largely displace the pursuit of other policy objectives.

If you disagree, in addition to Obamacare, why didn't we get much firmer bank regulation AND much better job retraining for the rust belt AND a much bigger stimulus package AND lock down abortion rules on a federal level AND get a strong new voting rights act passed AND get something done about colleges? None of those things would be as serious as court packing.

If you disagree, in addition to Obamacare, why didn't we get much firmer bank regulation AND much better job retraining for the rust belt AND a much bigger stimulus package AND lock down abortion rules on a federal level AND get a strong new voting rights act passed AND get something done about colleges?

because the republicans made it very clear that they were not going to work with Obama and the democrats on anything whatsoever. A lot of the court packing talk pictures a day when the Republicans are a spent force and the Dems would have to deal with the problems of Trump having had two picks. For that reason, I don't think it is worthwhile to talk about it.

put me down for NO, on the court packing proposition.

increasing the number of judges in order to put more liberals on the court is totally short sighted. the GOP will just increase the limit the next chance they get. soon we'll have more judges than representatives.

"because the republicans made it very clear that they were not going to work with Obama and the democrats on anything whatsoever."

Yes, but my point is that major initiatives take political capital. It wasn't that Democrats couldn't do *anything*. They did health care, and that was great. It was that they couldn't do *everything*, because major initiatives take political capital.

We can imagine a world where Democrats have so much political capital that they can do essentially everything they want to do, but it is hard to imagine THAT world being a world where they need to bother with court packing. In THAT world if Trump appointed judges were really obstructing everything (which would be shocking in THAT world) Democrats could just impeach them and replace them. Even that would be better than court packing, because in that world Republicans couldn't replicate the feat without taking all three branches at super majority levels.

put me down for NO, on the court packing proposition.

increasing the number of judges in order to put more liberals on the court is totally short sighted. the GOP will just increase the limit the next chance they get. soon we'll have more judges than representatives.

Exactly. We have already seen, with the removal of the filibuster for (Federal district) judicial nominations, just how this sort of thing can come back to bite you. In short, don't ever assume that you will never be the guy on the short end of whatever short-term solution you are advocating for.

The SCOTUS is a necessary component of American governance. It is a political institution. It always has been. Any pretense otherwise is neither liberal nor conservative. It is merely stupid. If I'm wrong, please explain why both liberals and conservatives make a big deal about who gets to "call balls and strikes".

So let's dispense with piety: The Law is not some Platonic Ideal Form, Justice is not blind, and even if you think the Constitution defines "the" strike zone, it is 5 Justices who define its actual corners. Personnel is policy. The rabid anti-abortionists know this very well, as do the gun nuts and of course the authoritarian corporatists. It's long past time for pro-choice, gun-sanity, union-friendly Americans to stop apologizing and play the game on the same goddam field.

"Packing the Court", if it ever becomes an option for sane Americans, will be an attempt to preserve the SCOTUS as a relevant branch of government. The Supreme Court's power lies entirely and only in the deference its rulings get from We The People. A court composed of revanchist Republicans, packed on to the bench by accidental presidents, "interpreting" the strike zone for the next half century, is not likely to preserve its authority in an America that manages to survive its current bout of insanity.

"One man, one vote, one time" is often how tinpot dictators rise to power. Here in America, the closests analog (so far) has been the lifetime appointment of judges by temporarily-victorious factions. There may have been a time when the victorious understood the temporary nature of their victory, but we passed a tipping point in 2010 if not in 2000. Once the temporarily-victorious start using their temporary power to entrench themselves, the equilibrium becomes unstable.

Those who wish to see the SCOTUS held in contempt by the next generation or two can do no better than let He, Trump staff it today.

--TP

Certainly some judges interpret the law on a partisan/ideological basis. But it is worth noting that many actually do their job focused on the law rather than partisan/ideological advantage. Don't believe it? Just look at how many of the court rulings (both in the District Courts and in the Appeals Courts) against Trump have been by judges appointed by Republican Presidents.

Just sayin': the fact that some are highly visibly abusing their office doesn't mean that many, let alone most, are doing so. We shouldn't lose sight of that reality.

But court packing doesn't help re-establish the integrity of the court, it destroys it.

I don't think this is true. It doesn't really even make sense.

I think we all agree that the integrity of the court is, as it stands, compromised.

And assuming we want to fix that, the question of what to do about it has two parts,

1) What conditions would constitute a restoration of that integrity, and

2) How can those conditions be brought about.

I think the answer to 1) is that restoration would necessarily involve not only curing the underlying disease, but also correcting and repairing as best we can any symptoms and damage caused by the original infection.

That is, fix the deeper institutional conditions which allowed the court's integrity to be subverted in the first place, but also correct the damaged conditions which were in turn created by those failures. The skewed makeup of the court is therefore one of the many things that, at least in the long term, need to be corrected before we can call job done on our restoring integrity project.

And moving on to 2), there are a couple broad approaches possible (not necessarily mutually exclusive):

One is to leave it alone and hope that it will be able to heal on its own. If a long term Democratic majority takes power, than perhaps the makeup of the court will once again begin to reflect the country after 15 or 20 years. The ease with which it was previously broken can then be comfortably forgotten, and, voila, 'integrity' restored.

The other approach would be some kind of deliberate reform.

That could obviously take a great many different shapes. Everything from term limits, to hard constitutional requirements for supermajority consensus on confirmation, to scaling back judicial review (via constitutional amendment, presumably), or even just randomly selecting justices by lottery from other federal benches.

But if any of those more radical reforms are on the menu, then why preemptively take changing the size of the court off the menu? It's not even a number that's Constitutionally enshrined -- it's been changed several times before, sometimes for more or less trivial administrative reasons. There's plenty of reason to want it there. Beyond the immediate boost to representational integrity from the new appointments, a larger court might have other advantages, like a broader pool of specialized expertise.

The only reason for voluntarily taking it off the board seems to be that Rs would use the excuse to redouble their efforts to break or subvert the court down the road.

But if the fear is that the Rs are going to start wrecking the court again the instant they get a chance, maybe the problem is that your reforms didn't go far enough. Because a lack of quasi-legitimate excuses isn't going to stop them. It never has before.

Certainly some judges interpret the law on a partisan/ideological basis.

Yes. And He, Trump has a list of them. It's not a blacklist.

--TP

I apologise for posting this in a non-open thread, but I thought you all might want to know that Carole Cadwalladr won the 2018 Orwell Prize.

The Observer’s Carole Cadwalladr has won the Orwell Prize for Journalism 2018 for her reports on Cambridge Analytica and the impact of big data on the EU referendum and 2016 US presidential election

http://www.pressgazette.co.uk/observers-carole-cadwalladr-wins-orwell-prize-for-journalism-for-cambridge-analytica-data-investigation/

She's been very brave and persistent in the face of threats and obstruction, and she's still going on e.g. the role of Nigel Farage in various nefarious related activities. I recommend her twitter feed, for those who are interested.

Back to the vital question of the SCOTUS - sorry for the interruption!

I'd support expanding the court so long as doing so increases regional diversity. Perhaps the only thing in the universe that Justice Thomas and I agree on is that something is likely missing when all nine justices come from law schools within a couple hundred miles of each other, and their prior work was almost exclusively done in the NE urban corridor. Note, for example, how the term before this last one every single East Coast pundit got Arizona v. Arizona wrong because they didn't account for Kennedy being a California and 10th Circuit boy, well aware of the giant can of worms that would be opened if the Court were to start at this very late date constraining which subjects could be addressed by ballot initiative, and which not.

I was seriously awaiting the Florida-Georgia water case to see how the justices might be thinking, because Texas-New Mexico-Colorado is going to get back to them one of these first days. The TX/NM/CO case is likely to be ground-breaking -- it's the first case I'm aware of where the decision is going to hinge on whether pumping from aquifers that are (maybe) hydrologically linked to surface water counts against limits on surface-water diversions. Here's a subject area where the Court has original jurisdiction, it's (regionally very) important, and the Court seems to me to be woefully ignorant.

But I'm peculiar that way.

perhaps justice Thomas would like to help address this regional imbalance by stepping down from his seat!

:)

perhaps justice Thomas would like to help address this regional imbalance by stepping down from his seat!

Russell, you really, really do NOT want that. Consider, you would be giving Trump (actually the Federalist Society) a chance to replace an 84 year old arch conservative with a 40 year old one.

you are correct. i withdraw my suggestion.

This term, Gorsuch, a Federalist Society pick, voted on the liberal side of a couple of cases. Kennedy, with a swing voting propensity to disappoint liberals, conservatives, and libertarians, voted on the conservative side of all of this term's cases. Kennedy probably has closer to a libertarian viewpoint than any of the other justices, but that's not saying much.

...a California and 10th Circuit boy...

Fingers disconnected from brain, I guess -- Kennedy was from the 9th.

We knew what you meant, Michael. After all, there are only 9 Circuits.

Thomas is 70 years old.

It's bad news all the way round, dead or alive.

We knew what you meant, Michael. After all, there are only 9 Circuits.

It was a particularly embarrassing error, as I can (if I'm ambitious) bicycle down to the building where the 10th Circuit meets.

What can be done?

I hear that some guy named Lenin asked that very question. But then I guess I'm a bomb thrower.*

So, what next? Given the GOP control of all 3 branches of government, there is not much that can be done. Nonetheless political struggle must continue. What else ya' going to do?

Speculating forward?

1. Win more elections. It all starts here.
2. Once elections are won, consolidate power. The GOP has used gerrymander and voter suppression. They play the power game the way it should be played. Dems also do this, but not as effectively. In addition, there are institutional requirements that favor the GOP (2 Senators/state which see).
3. Therefore, any scenario that begins to circumvent a 6-3 or worse wingnut Court starts here with an assumption of Dems having a good deal of "political capital" (no shit, Sherlock).
3. and here goes.
4. Admit DC and Puerto Rico as states.
5. Pass legislation that overturns repugnant SC decisions to the greatest extent possible. Not all of these decisions are "constitutional" in nature....i.e., remanded back to a lower court.
6. Adopt Constitutional Amendments. (assumes a LOT of capital).
7. Expand the lower courts (Roberts has called for this repeatedly...humor him). Appoint a lot of young liberals to the bench.
8. Eliminate the Senate filibuster in toto. It was always a tool of reactionaries. Throw it in the dustbin of history where it belongs.

Roosevelt's court packing play foundered on the shoals of the racist and reactionary southern block that was an essential part of the Democratic coalition supporting New Deal Legislation.

Given the ongoing ideological sorting we see, this will most likely not be a consideration if a one side or the other tries to do that in the future. If they think they absolutely have to do so to ensure their political viability. I have no doubt that, if the shoe was on the other foot, the GOP would do so if they felt it was an existential necessity.

Therefore, the Democratic Party cannot help but do likewise.

This is the world we are moving into.

Whose side are you on?

*It's been decades, but it's like riding a bicycle.



1. Win more elections. It all starts here.

Specifically, win state elections, especially in 2020. Because those are the folks, in most states, who will draw the legislative districts for the next decade.** You don't need total control. But you have to have at least one house of the legislature if you don't want to get gerrymandered. Again.

Failing to (successfully) elect supporters in 2010 was probably Obama's greatest failure.

** After that, demographics (on current trends) will mean that a party like today's GOP becomes a lost cause. Even with brilliant gerrymandering.

Sebastian, you said that
In the parts of the blogosphere and social media world I inhabit,

so I'm wondering if you could link to some of those places. I'm assuming that this one
http://crookedtimber.org/2018/06/26/breakdown-values/#comments

is one of the places, but what surprises me is that only a few people seem to be up for it and it's not a thought out plan, it's more a cri de coeur, as most of the people here aren't really for it, certainly as a first step. jack lecou is the only one whose 'for' it, in the sense that it could be part of a larger strategy, but from your descriptions, it sounds like people are proposing this as a panacea. I'm always looking at these sorts of things from the outside, so any pointers would be appreciated.

This also seems significant
http://thehill.com/homenews/senate/394933-manchin-warns-trump-against-picking-court-nominee-who-will-overturn-roe-v

Failing to (successfully) elect supporters in 2010 was probably Obama's greatest failure.

Yes. Only Democrats have agency (insert Al Gore sigh here). Just what, specifically, should Obama, all by himself mind you, have done?

As leader of his party, he could provide focus. In particular, focus on winning races for state legislatures.

He's obviously not the only one with agency; other Democrats could have figured it out, too. But he did have that agency -- allocation of national party resources was within his purview.

1. Win more elections. It all starts here.

Specifically, win state elections,

win anything you can win. dogcatcher, head of the water and sewer department, county clerk, selectman or woman, mayor, state rep or senator, governor.

that said, yes, strategically state office will control redistricting after the 2020 census in most places. so win those.

Specifically, win state elections...

More specifically, win control of state legislatures. Not just for redistricting; the trigger laws and such that everyone's talking about are state laws. I regularly recommend people read The Blueprint: How the Democrats Won Colorado (and Why Republicans Everywhere Should Care). Local funding. Local issues. Targeting districts, both those with a strong person on your side or a weak opponent. To paraphrase one of the funders, who was gay, "Electing an environmentalist Democrat who can win a district on those issues is more important than whether she's pro-gay or anti-gay. She's a Democrat. A vote for Democratic leadership in the chamber. And she can be negotiated with -- a pro-gay vote in exchange for a pro-environment vote."

Full disclosure: I was a member of the non-partisan permanent legislative budget staff in Colorado when this was happening and met, at least superficially, most of the players in the book. I worked with Rob Witwer's dad quite a bit -- he was trying to get a large state software system back on track after the mess his predecessor had made of the purchase, and I was the staffer stuck with getting the budget committee accurate information and a set of not-impossible options to choose from.

Regarding the fascism discussion....
https://slate.com/news-and-politics/2018/06/james-mattis-must-reject-donald-trumps-unlawful-order-for-the-military-to-intern-civilians.html

At my local Keeping Families Together rally. Best sign: the one lady's back reading

YES, Melania, I REALLY DO CARE

Just a note to memorialize the fact that one of two things has to be true:

1) Susan Collins (R-ME) is stupid; or
2) Susan Collins thinks YOU are stupid.

From this:

Tapper pressed: “There are plenty of justices that the Federalist Society and other experts likely think will vote to overturn Roe vs. Wade but don’t have a record of hostility towards Roe vs. Wade.”

“For instance, don’t you think, just as an academic matter, Neil Gorsuch, for whom you voted, don’t you think he’s probably going to vote to overturn Roe vs. Wade if given the chance?”

“I actually don’t,” Collins said.

“I had a very long discussion with Justice Gorsuch in my office and he pointed out to me that he is a co-author of a whole book on precedent,” she said. “So someone who devotes that much time to writing a book on precedent, I think understands how important a principle that is in our judicial system.”

My own opinion is that 2) is true. When Collins says she would not support a Supreme Court nominee who had “demonstrated hostility” toward Roe v. Wade, she means that a SCOTUS nominee is OK by her if said nominee never marched in a "pro-life" rally carrying a blown-up photograph of a fetus. (Or at least, was never caught doing so on camera.) And remember: Susan Collins is a "moderate" Republican.

--TP

Tony, perhaps it would be worthwhile to spend less energy on denouncing Senator Collins, and concentrate instead on how to convince her (and others) to do the right thing. Plenty of time to hurl insults after the battle is over.

Surrender first, fight later?

OK, sure. Just tell me how to "convince her (and others) to do the right thing". Also, what's "the right thing"?

In any case, please note that I said my personal opinion is 2), not 1). I think Collins is smart enough to count on a supine media and a poorly-informed electorate to interpret "demonstrated" in her favor.

--TP

“I actually don’t,” Collins said.

She is not stupid. That leaves delusional or lying.

How?

Well obviously if she's going to vote on principle there's no need. So the thing to focus on is expedience. Especially since voting on principle is ever so much easier if it's expedience as well.

So, you make the case that doing what you consider the right thing will be a vote winner and/or that failing to do so would be a vote loser.

Note that this doesn't just apply to Collins. It's probably worthwhile applied to Murkowski, Heitkamp, etc.

It's not "surrender first". It's don't gratuitously make enemies out of people you need to convince to be allies. Failure to remember that has the GOP on the fast track to permanent minority status. Why duplicate their mistake?

wj,

What I consider the right thing is to vote against any nominee other than Merrick Garland, either before or after the mid-terms. I will eat a MAGA hat if you think Collins has that much principle.

To be fair, I don't think Heitcamp, Manchin, or Donnelly have that much principle either. But they're not in He, Trump's majority party yet. (If they worry that standing on principle will cost them their seats, I wonder why they don't switch parties right now and run as incumbent Republicans.) Let us Democrats work on those Republican wannabes, and we'll leave you to persuade the Republican "moderates". Let's see which of us has the harder job.

--TP

TP: What I consider the right thing is to vote against any nominee other than Merrick Garland, either before or after the mid-terms. I will eat a MAGA hat if you think Collins has that much principle.

Why on earth would she apply that principle now if she didn't apply it in relation to Gorsuch?

Here is what she said: “I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law,” Collins said in an interview with Jake Tapper on CNN’s State of the Union on Sunday.

She is playing her usual slippery, carefully calculated word games. "Who demonstrated hostility" is another variety of "don't ask, don't tell."

She has also said this (via her spokesperson): "'Senator Collins does not apply ideological litmus tests to nominees,' Clark said."

So ya know, "no litmus test" means no litmus test in either direction. Don't ask, don't tell. If she doesn't apply the litmus test by asking what the nominee would do with Roe v. Wade, then later on she can say she didn't know.

Her faith in Roberts and Gorsuch (see the first link) gives her another way to weasel out of anything firm later on.

She. Does. This. Every. Time.

Well if what you want is Garland and nobody else, then you're right, you might as well surrender now. 'Cause we both know that won't happen. It doesn't even matter if 3/4 of the Senators would vote to approve him, because Trump wouldn't nominate him and McConnell wouldn't let it come to a vote if he did.

Now if you are willing to take someone who is a moderate (really moderate) Republican, then there are constructive things you could do. But if not, feel free to fill the Mcmanus Memorial Futile Venting position.

Janie, sure she'll weasel, that's what politicians do. (Some are better at doing so subtly, but anyone who manages to get elected does it.) The trick is to convince her that, whether she applies litmus tests or not, she has a significant number of constituents, whose votes she will need, who do on this one.

The question of "whose votes she will need" is not so bloody simple. If she votes one way, she'll almost surely be primaried. If she votes the other, she may actually, finally, lose enough of her statewide popularity to lose the general.

Or maybe she'll retire, who knows.

Well if what you want is Garland and nobody else, then you're right, you might as well surrender now.

Well, I go in with the presumption that Trump's shortlist is going to be 10 pounds in a 5 pound bag. So pushing Collins to be more clear with what she will accept seems to be less pushing away a possible ally and more like acknowledging her previous habits.

This wikipedia article has some interesting information
https://en.wikipedia.org/wiki/Donald_Trump_Supreme_Court_candidates

perhaps it would be worthwhile to spend less energy on denouncing Senator Collins, and concentrate instead on how to convince her (and others) to do the right thing.

I second TP's query...what, exactly, is the "right thing? And didn't we go down this road before with respect to the battle over the ACA? How, exactly could she be convinced? What, could we say to her?

No nominee for the SC will volunteer to say they want to overturn Roe, but a conservative court will undoubtedly do so.

Given this, overturning Roe is obviously not a "dealbreaker" for Collins.

If "doing the right thing" is of any importance, then a couple GOP Senators threatening to caucus with the Dems would get "the right thing" (I'm looking at you, Jeff Flake).

But this will never, never, happen. I don't care how much sugar is ladled on trying to woo them. They won't go over to the Dems.

Similarly, Joe Lieberman took a lot of heat from the Democratic Left. Nonetheless, his vote was absolutely required to pass the ACA. So where were all the Wall Street Journal editorials imploring the GOP to be nice and sing sweet lullabies to Joe?

Tell me that, wj?

Thanks.

what, exactly, is the "right thing?

Sorry, I thought that was obvious. It's whatever you think is the right thing, the thing you want to happen. What else?

As for the GOP failing to woo Lieberman, see what the result of that was for them. Sportsmanship doesn't require you to be inept just because the other side is massively incompetent. IMHO anyway.

I don’t expect a Trump court to overturn Roe anytime soon anyway - rather I think they will salami slice it to death with decisions which don’t explicitly overturn it. In the same way the court has started to gut voting rights, union rights etc....

Equally concerning is that senators (step forward Lindsay Graham) are already indicating that they won’t reject Trump nominees who would not recuse themselves over a case which involves Trump.
And right on cue, a case which involves the constitutionality of Mueller’s appointment:
https://www.politico.com/story/2018/06/28/roger-stone-aide-robert-mueller-subpoena-682318

Apologies, Lindsey.
The jerk.
https://www.politico.com/story/2018/07/01/graham-trump-justice-russia-689579

Full personhood for foetuses will come later.
And don’t expect any questions about that to be answered by a nominee.

if you are willing to take someone who is a moderate (really moderate) Republican

that will not be on offer

if you are willing to take someone who is a moderate (really moderate) Republican

that will not be on offer...

I'm curious about just what those 'constructive things you could do' might be, too.

Unless wj is talking about a Democrat controlled Senate after the midterms...

The fundamental problem with any opposition to court packing is that if we ever reached the position where the court was a meaningful obstacle to Republican interests, they will pack the court. So either the court is a fundamentally conservative tool, or it will be destroyed - that's the status quo, just like with the filabuster.

So lets just destroy it.

I'm not sure how to articulate it, but this article got me thinking about the discussion on this thread, mostly among liberals/Democrats, and how differently it seems to go than what I imagine as the "just do it" approach conservatives/Republicans might take.

https://fivethirtyeight.com/features/psychologists-looked-in-the-mirror-and-saw-a-bunch-of-liberals/

Maybe it's about self-doubt or perceiving ambiguity. I'm not sure. (That's funny, maybe. Or is it?)

Writing from phone so I can’t be as long winded. ;)

One way of looking at it is: the first opportunity for Court packing is now. Republicans are in the position to do it now if it were a good idea for a narrow majority in charge of Congress and the Presidency to do so. Would it be politically a good idea to do it now?

Given that the likely next departees from the court are 'liberals', the GOP has no need to do that now. They just need to keep senate OR presidency to prevent the court from regaining balance in the forseeable future.
And I would not put it beyond McConnell to 'advice and consent' with a mere relative majority abusing the temporary absence of some Dem senators, if he can't get the Kennedy replacement through with 50+Pence before the midterms.
Remember btw that McConnell promised that he would, if need be, not allow Hillary Clinton any filling of SOTUS positions, even if she held the presidency for 8 years.
He will go as far as needed at any given moment, and at the moment his side does not yet need court packing.

if you are willing to take someone who is a moderate (really moderate) Republican

that will not be on offer

A more complete reply - Trump's short list:

Brett Kavanaugh, Federalist Society contributor.
Thomas Hardiman, Federalist Society contributor.
Raymond Kethledge, Federalist Society contributor.
Amul Thapar, Federalist Society contributor.
Amy Coney Barrett, Federalist Society contributor.

Long march through the institutions, y'all. Our modern conservatives have read their Gramsci.

Social psychology’s left tilt has been widely discussed

One of the pre-eminent exponents of conservative governance in the 20th C offered her opinion that there is no such thing as society.

Perhaps that helps to explain it.

I'm curious about just what those 'constructive things you could do' might be, too.

To start with, you do the things you do any time you are trying to lobby a Senator about anything. ("You" being a bunch of constituents rather than some deep-pockets lobbyist, of course.) You write letters. You send floods of e-mails. You make phone calls.

Then you show up at whatever Town Halls or campaign events are held around the state. Make your point civilly but emphatically.

Will those things work? I don't know. But they seem a lot likely to work, more "constructive" if you will, than straight denunciations. And if you are sure that they won't work, well then basically you are giving up before the battle starts -- right?

if you are willing to take someone who is a moderate (really moderate) Republican

that will not be on offer...

Russell, you are almost certainly correct. At least for the first couple of nominees. But if those are rejected, Trump has some history of caving in the face of determined opposition. And besides, by that point the elections will be past -- with luck the Senate will be tilted the other way then.**

** My personal happy fantasy is that the Democrats not only take Nevada, Arizona, and Tennessee. But Cruz manages to lose Texas as well. Which seems wildly unlikely. But I try to remember that nobody here would have predicted, a year ago, that we would have a Democratic Senator from Alabama!

Trump has some history of caving in the face of determined opposition

Trump's style is to demand everything, and then work back from that. It is, I think, less a matter of "caving in the face of opposition" and more a matter of seeing what he can get away with.

So far, he's gotten away with quite a lot.

The (D)'s may, possibly, flip the House. They will probably not flip the Senate. The Senate owns the advise and consent privilege.

If enough people make enough noise, maybe he'll moderate his choice of nominee. Procedurally, I don't really see a lever to enforce that.

So, make a lot of noise and hope for the best. I don't expect to be pleased by whoever replaces Kennedy.

I don't expect to be pleased by whoever replaces Kennedy.

But how pleased were you, overall, with Kennedy himself? Yes, he swung the way you preferred on a handful of cases -- mostly, IIRC, when it was a matter of a libertarian perspective overlapping a liberal one. But he was someone I would classify as definitely more conservative than liberal.

But how pleased were you, overall, with Kennedy himself?

my feeling about Kennedy is "meh", but that's not really my point.

Kennedy's leaving.

Yes, but suppose you get "meh" again. You wouldn't be pleased, of course. But you wouldn't have lost anything either. And it's probably the best you can get. Leaving aside the (faint) possibility of another Earl Warren type surprise....

As mentioned upthread, I doubt that "meh" will be on offer.

More on Coney Barrett.

Everyone is entitled to hold and practice whatever religious beliefs they wish. That said, I'm not sure how you square what appears to be evangelical fundamentalism of this stripe with a seat on the SCOTUS.

You show me "meh" and I'll offer my thoughts about it. I'm not seeing it.

I'm not seeing it either. Yet. "Yet" being the operative term. And I don't think we will see it, until Trump's first couple of nominees bounce. Recall that that's how we ended up with Kennedy -- Bork (who would have been awful) had to bounce first.

So, focus on how we might have a chance to bounce those first couple of nominees. One day at a time....

He, Trump can make maximal demands and it's just the Art of the Deal.

I, Tony P, can make maximal demands and it's just futile denunciation.

Starting negotiations with the likes of Susan Collins by ceding half the ground is apparently what Democrats are expected to do. Sure, elections have consequences, but this attitude (which, to be fair, some Democrats do subscribe to) also has consequences.

The Democrats' initial offer to Collins should be: vote down He, Trump's nominees or we will drive you out of politics altogether in 2020. She may dismiss the threat, of course, but if "moderate Republicans" need to worry ONLY about primaries, then "moderate" is just a brand name, not a useful description.

--TP

"Given that the likely next departees from the court are 'liberals', the GOP has no need to do that now."


Kind of, but that wasn't the case one week ago, and they could have been Court packing then. And that doesn't really speak to the problem anyway. With court packing they could RIGHT NOW have in place a majority of Alito/Gorsuch conservatives and not have had to deal with the Kennedy/Roberts types and it wouldn't have been reversible until Democrats could get control of both halves of Congress and the Presidency--so at least 4 years from 2016. Did they not want a clear majority of Alito/Gorsuch conservatives on the court? Are Republicans not ruthless enough?


Starting negotiations with the likes of Susan Collins by ceding half the ground is apparently what Democrats are expected to do.

No, not expected. It's what Democrats would be smart to do. You catch more flies with honey. If that doesn't work, there will be plenty of time to drive her out when she's up next.

As for
He, Trump can make maximal demands and it's just the Art of the Deal.
No. it's just stupid. We look at what he "accomplished" with threats to Kim: North Korea got a bunch of its fondest desires, and Trump (and the US) got . . . nada. Trump can claim it's "the art of the deal", but it's pretty obvious, to everybody but his brainless fans, that that's total bull.

I don’t think it’s that they are not ruthless enough rather than that they realise court packing might be too much for the handful of their ‘moderates’ in the Senate.
Attempting to pack the court with so slim a majority and failing is likely too big of a risk to be contemplated. Moreover, you can’t credibly blame the Democrats for partisan obstruction against so blatantly political a move; even your most credulous supporters will likely see through that.

In contrast, the most extreme of the potential nominees will be able to put up a set of bland answers in any nomination hearings, and it’s a tossup as to whether Collins and Murkowski will fold to the pressure which will be put on them.
There’s no downside in that approach; an attempt at court packing might lose an extra seat or two in November.

I guess I'm unclear on how court packing would actually work, as a practical matter.

If I understand correctly, it will require legislation. Which means a (D) majority in both the House and Senate. And if there isn't a (D) in the White House, it requires veto-proof majorities.

When do we expect all of that to happen? And if you have all of that, isn't it more practical to just work around the SCOTUS?

Will those things work? What makes you think they are not being tried? She has constituents, many of whom do not agree with her. I would reasonably assume some of them write letters of varying degrees of opposition to her and mail them to her office. Some, no doubt, even show up at her town halls, if she holds them. I do not see the national punditry calling for her head, either.

It must be nice to be a Susan Collins who votes consistently for hard line right wing policies while successfully selling herself as a moderate.

But if those are rejected... I'd like to have some of what you are smoking.


And I don't think we will see it, until Trump's first couple of nominees bounce. Trump has been filling the federal bench with ideologues. A couple self-destructed under confirmation questioning, but the rest are sailing through a rubber stamp Senate.

It's what Democrats would be smart to do. Like Obama's "grand bargain"? Look, plenty of honey, enough for several lifetimes, was larded on Collins during the ACA battle.

You know what they say about negotiations, the first one to put forward a number loses. You are plumping for a strategy that has no relevance in today's hothouse political atmosphere.

I don’t think it’s that they are not ruthless enough rather than that they realise court packing might be too much for the handful of their ‘moderates’ in the Senate.

Yup. Given the nearly unanimous (current) condemnation of FDR's court packing plan...which was essentially killed by southern Democrats and "traditionalists", this might be a line too far.

Are Republicans not ruthless enough? They are getting pretty much everything they want right now. Why rock the boat with a dubious court packing scheme? If they hold the Senate, they most likely could get 1 or 2 more Supremes.

Now you could speculate they should give it a try anyway, just to show how politically suicidal it is, so Democrats would NEVER consider such a move if given the opportunity.

My only hope right now (other than winning elections) is for GOP overreach. That tends to be the way things go from a historical perspective.


and it’s a tossup as to whether Collins and Murkowski will fold to the pressure which will be put on them.

I would say "not likely" for Murkowski. But she did after all take on the right with her write-in campaign in 2010. On the other hand, she returned to the fold in 2016.

Collins? Not a chance in hell.

And if you have all of that, isn't it more practical to just work around the SCOTUS?

You can only work around them so much, short of passing amendments to the constitution. If conservatives have their court in place, they're taking everything to court.

for wj:

http://thehill.com/homenews/campaign/394906-left-mounts-heavy-pressure-campaign-on-swing-senators-over-supreme-court

You are plumping for a strategy that has no relevance in today's hothouse political atmosphere.

OK, I'm open to listening to alternatives. What strategy do you think will achieve a positive outcome this year? Not just make you feel righteous, but actually keep Trump's pick from getting confirmed. And why do you think it will work?

Maybe the point is that nothing will work.

What bobby said, 4:04.

(Particularly as he agreed with me...:)

Trump dies of congestive heart failure.
Pence goes into a coma with the goofy "here I am master" look on his face upon realizing he finally "made it".
Ryan is tapped, but before he can take the Oath, he is taken out of the Speakership by the Freedom Caucus in a protracted GOP political civil war.
In all this turmoil, the elections come and go, and give the House and Senate to the Democrats.

That's about all I got.

If conservatives have their court in place, they're taking everything to court.

But, but, but... they've been telling us for a generation that the only legitimate path to policy is through the legislature, not the anti-democratic, un-elected courts.

Are you telling me they weren't telling us the truth?

Ha ha ha!

Win elections. You can't pack the court until you win elections. A lot of them.

If packing the court still looks like a plan after you win a lot of elections, re-visit.

Ha ha ha!

We're having an "if you don't laugh, you'll cry" moment.

Now you could speculate... That the GOP is perfectly happy to NEVER overturn Roe because its existence serves to motivate the base to vote for the GOP so they can dismantle the regulatory New Deal state....but that may be getting a bit too much into the weeds.

Bobby, that's what I'm talking about. May not work, of course. But it seems like the best shot. And even if it's 5:1 against, that's still better than just giving up.

Now you could speculate... That the GOP is perfectly happy to NEVER overturn Roe because its existence serves to motivate the base to vote for the GOP so they can dismantle the regulatory New Deal state.

Yup, probably a better approach to remove it de facto while keeping it on the books as motivation.

hsh: We're having an "if you don't laugh, you'll cry" moment.

We're also having an "If you're not with us, you're against us" moment.

That's not a "moderate" sentiment, of course. It's a Barry-Goldwater-1964 sentiment. Moderation in defense of liberty is no virtue, and so forth. A sentiment that only RWNJs are entitled to in today's America.

I have suggested before now that "right to die" is likely to become a hotter issue than "right to life" as we boomers amble closer to the grave. Sex is fun to argue about, but death affects more people. The RWNJ SCOTUS that He, Trump and Mitch McConnell and the Federalist Society have lusted after all these years is not likely to confine itself to forcing women to bear children. It will also try to force you, gentle reader, to bear as much pain at the end of your life as Holy Scripture requires. Because Life, you know.

I could be wrong, of course. But since I would be past menopause even if I were a woman, that's what I worry about when I contemplate a RWNJ majority on the SCOTUS for the rest of my life.

--TP

bobbyp: Some, no doubt, even show up at her town halls, if she holds them.

She does not deign to hold town halls.

wj: What strategy do you think will achieve a positive outcome this year? Not just make you feel righteous, but actually keep Trump's pick from getting confirmed. And why do you think it will work? ... that's still better than just giving up

I could do a series of "what bobbyp" said here, including his 4:04 on FDR's court-packing, and his 4:30. The "Not just make you feel righteous" would be insulting coming from almost anyone but wj; since I know wj to be as unsnarky and untroll-ey as they come, I can only assume he's trying to be a friendly cheerleader for not giving up.

Part of my strategy for not giving up is to continue badgering wj to face reality and stop hoping for the revival of a sane Republican party.

I can only assume he's trying to be a friendly cheerleader for not giving up.

Part of my strategy for not giving up is to continue badgering wj to face reality and stop hoping for the revival of a sane Republican party.

"...not giving up" is exactly what I'm trying to say. If you only need 1 vote, and you have 3 Senators who are 80% likely to oppose you, between the 3 of them you're above a 50% chance of success. Another who is 9 to 1 likely to oppose you actually improves your odds further. Ain't probability and statistics fun?!?

In a similar vein, I'm still hoping my party will return to sanity. It looks increasingly unlikely. But until another alternative appears, it still looks worth pursuing. And, after all, trying doesn't prevent me from voting for a Democrat facing a nutcase Republican -- and I do.

Just because it might brighten someone's day, consider this expression of concern from someone that I, personally, would classify as a
RWNJ:
"President Trump could make a big mistake and nominate another David Souter. . . . As soon as he crossed the Washington beltway after departing New Hampshire, he became a reliably liberal member of the court."
Further
"Even worse, the president could nominate someone who midway into their nomination suffers from a surprise revelation that could be disqualifying."

Things are rough all over. ;-)

President Trump could make a big mistake and nominate another David Souter.

Did you read the Federalist Society candidate curriculum vitae links posted by russell above?

These are people who want us to go back to the legal framework we had in 1896, including Plessy.

My guess is that, in the end, the Federalist Society gets their guy who will overturn Roe. Then the far right discovers that, with no judicial cover on the subject, we pick up where we left off in 1973: with state legislatures across the country legalizing abortion.

Including, faster than you might expect, legislatures in deeply red states. If only because legislators who won't find that lots of the women among what they thought was their base insist. Or else.

Is it bad for women needing an abortion? Yes, probably for a decade in some places. And it's pretty terrible for all those committed reactionaries, who discover that they've trashed their political position -- even worse than shutting out non-whites has.

The price is too high. But sometimes a silver lining is all you've got.

No, not expected. It's what Democrats would be smart to do. You catch more flies with honey. If that doesn't work, there will be plenty of time to drive her out when she's up next.

I don't know Collins that well, but I would point out that this sort of advice in general is part of why we're in this mess.

"Civility" has been on some lips of late, but I'd say it's pretty obvious that what we actually suffer from is a surfeit, not a deficit.

The thing is, humans are social creatures. We go along with the crowd. If everyone seems to be saying that something is so, we generally default to going along with that. We have to, most of the time. Even the 'mavericks' and 'outside the box thinkers' are lot less mavericky than they'd probably like to believe.

This is, at root, why all those 'humans failing the constitution' things I mentioned earlier happen. Greed and thirst for power have their roles to play, sure. But a lot of it just comes down to intellectual inertia.

For example, I reckon that even most of us right here -- and I'd take you lot as a good deal more thoughtful and introspective than some -- still probably have a gut reaction that the electors switching their votes to Clinton, or writing in Mitt Romney or something, would have been, if not beyond the pale, than at least really, really weird. It's fine to talk about, but it would never have actually happened. That's just not how things work.

And yet, why not? Presidential electors making an independent choice in accord with their individual judgment and conscience is literally what they are there for. That intention is a good deal more supported in originalism, for what that's worth, than the idea that the Supreme Court has 9 judges, or even that they should be able to review and overturn a health care law.

This is why there's important power in just bringing this stuff out in the open and talking about it.

Power in saying what you actually mean, and what you are actually thinking, as loudly as possible. It comes from the fact that lots of other people might also be thinking it, but thinking that they were alone,l so the idea must be silly. Or they might not have thought of it, but will start thinking about it when they hear you say it.

But it also takes a long time to overcome inertia and start building momentum the other way. You can't just wait until the last minute, and then when your clever butter-ups and manipulations don't work out the way you hoped, switch strategies.

If Collins has a pattern of this kind of crap, it needs to be called out yesterday. If she doesn't like it, she has a very easy way to stand up and prove you wrong.

The alternative is to let the message that she's an independent maverick remain firmly fixed in voters heads. Or, in fact, reinforce it.

Nor can you just wait for later to start countering. For one thing, there's always another key vote. And if you're never calling out that behavior at the points when her decisions actually matter -- and consequently are getting press coverage -- how are you ever going to get anybody to hear what you're saying at all?

"Win elections. You can't pack the court until you win elections. A lot of them.

If packing the court still looks like a plan after you win a lot of elections, re-visit."

I think this is right. If they really are obstructing practically everything after you have demonstrated that you maintain a large electoral lead, then you can talk about doing more than just going around them.

I think a lot of liberals are so used to using the Court to get around Congress, that they forget that the much more democratic technique is using Congress to get around the Court. And in a huge number of cases, a good Congressional majority can get around all sorts of rulings. For example Congress could easily change the Arbitration Act to restore it to the idea that it isn't meant for consumers or employees. It could change the Voter's rights act.

Presidential electors making an independent choice in accord with their individual judgment and conscience is literally what they are there for.

Actually, there's some question about that. Indeed, a number of states have laws requiring Presidential Electors to vote for the candidates to whom they were pledged.

And there is something to be said for having them do so, absent exceptional events after election day. Otherwise what were all those voters voting on? It's not like anybody voting even knows their names, let alone anything about them. So you can't really argue that they are being selected to exercise their judgement. Nobody knows whether they even have any.

If you only need 1 vote, and you have 3 Senators who are 80% likely to oppose you, between the 3 of them you're above a 50% chance of success.

That is to assume that the probability for each senator is independent of the others, which in this case seems highly unlikely.

I think a lot of liberals are so used to using the Court to get around Congress, that they forget that the much more democratic technique is using Congress to get around the Court.

Ever since the Warren Court, this has been a common conservative trope. Liberals have passed a great deal of federal legislation...maybe you are too young to remember Lyndon Johnson or the Congresses of the 1970's. Surely you are aware that the ACA was enacted by the Congress and not libruls running to the courts.

In fact, a lot of the more controversial hot button judicial decisions are taken up as a dispute originating at the state level-interracial marriage, gay rights, etc., and are issues that Congress refuses to or is unable to take up.

When given the opportunity, conservatives do the very same thing...cf the relentless conservative judicial attack on affirmative action and yes, the ACA.

See also this.

PS: It could change the Voter's rights act. I'm curious. Tell me how this could be done in light of Shelby. The Court basically took a clear and concisely written Congressional mandate in the Constitution and declared it no longer operative.

So answer me this... why didn't conservatives just pass Congressional Legislation revoking that section of the Voting Right Act? Why the reliance on "judicial activism"? I would assert that to ask such a question is to answer it.

I think a lot of liberals are so used to using the Court to get around Congress, that they forget that the much more democratic technique is using Congress to get around the Court.

...and Roosevelt's court packing plan was essentially just that. But the Congress turned him down.

Why the reliance on "judicial activism"?

Because if you can get something declared unconstitutional, it's a lot harder (and takes longer) to get that reversed than a mere act of Congress.

It can take a decade or two of winning elections to reshape the Supreme Court -- how long has it taken conservatives to get a Court which might reverse Roe? And amending the Constitution seems to be a non-starter.

It seems to me that reversing Roe would be wholly against Trump's interests, and, except in so far as they genuinely care about the issue, against the interests of the Republican Party generally. Without Roe, Trump couldn't have been elected.

Therefore, reversing Roe would be wholly in the interests of the Democratic Party, and hence of the American people generally. Except, and it's a big except, for the human suffering caused because of it.

I think Trump is capable of working this out for himself, and if not he'll have advisers to point it out to him. His aim will be to appoint a Justice who will chip at Roe rather than reverse it.

On the constitutional issue itself, it's pretty hard to see in the Due Process clause the bit where is says that there's a right to abortion up to the point of fetal viability.

I look at Ireland, which has recently voted in a referendum to end a constitutional ban on abortions. For now they remain illegal, but each year a few thousand Irishwomen travel to the UK for the procedure.

I suggest it's time for the Democratic Party to offer a deal. It will support the appointment of a Justice who will vote to reverse Roe, so long as he promises to oppose any restrictions on access to contraception or interstate travel for the purpose of procuring an abortion (not that such a promise means much, but it makes the point).

If Roe is reversed, Republican states will start banning abortions. The Democratic Party should have a fund in place to offer advice and travel costs to women in those states. (The amounts involved would be significant but not infeasible, compared for example with election spending.)

These bans will be worth a few percent of the vote to the Democratic Party, which will soon control both the Senate and the House. Republican candidates will find it advantageous to develop more nuanced positions on the issue, and many states will soften their laws - if Ireland can legalise abortion, so can Republican states.

The Democratic Party's overall strategy should be to position itself as the party of Democracy. Let the people decide.

It could change the Voter's rights act. I'm curious. Tell me how this could be done in light of Shelby.

On the face of it, that's pretty clear. Rewrite section 4b incorporating current abuse statistics, and incorporate a process to update these every electoral cycle.

https://en.wikipedia.org/wiki/Shelby_County_v._Holder
The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula…

Roberts wrote that the Act was immensely successful "at redressing racial discrimination and integrating the voting process” and noted that the U.S. has made great progress thanks to the Act.[21] But he added: “If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.”[21] According to the Court, "Regardless of how to look at the record no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.”…

The Court did not subject Section 4(b) to the "congruence and proportionality" standard of review or address whether that standard is the appropriate measure to use when determining the constitutionality of legislation passed pursuant to Section 2 of the Fifteenth Amendment.[28] The Court also noted the federalism concerns raised by the Section 5 preclearance requirement, but it did not reach the issue of whether Section 5 remains constitutional. However, because the Section 5 preclearance requirement applies only to jurisdictions covered by the Section 4(b) coverage formula, the decision rendered Section 5 inoperable unless Congress enacts a new coverage formula.

Justice Thomas wrote a concurring opinion expressing his view that Section 5 is also unconstitutional for the same reasons the Court held Section 4(b) unconstitutional…

However, such an effort to re-enact a 'new coverage formula' would likely be as time consuming and difficult as passing a whole new bill, and as we saw with Obamacare, there are only so many things an administration can get done.

And of course with one (or two...) more Trump picks, the court would slide towards the Thomas view of things.

Win elections. You can't pack the court until you win elections. A lot of them...

You can't redistrict, either.
And that I believe is a ten year cycle ?

However, such an effort to re-enact a 'new coverage formula' would likely be as time consuming and difficult as passing a whole new bill, and as we saw with Obamacare, there are only so many things an administration can get done.

Congress's standard solution to that problem for the last 100 years is to toss creating the actual formulas over to the executive branch in the form of independent agencies. This would presumably be an add-on to the FEC, with more staff and money.

Win elections. You can't pack the court until you win elections. A lot of them...

You can't redistrict, either.

I live in the American West, where almost every state has some sort of initiative process built into its constitution. Arizona and California use independent commissions put in place by initiative. Washington's legislature put some sort of commission in place to avoid an initiative. Colorado does everything except US House districts by commission, and adding the House districts is on the ballot this year. Utah has an independent commission initiative on its ballot this year, which most recently polled 63-30 in favor. We only have to win one election per state out here to do away with the gerrymander problem.

As a region, more than half of ballots cast are now cast by mail. Colorado, Oregon, and Washington send ballots to every registered voter (Colorado also has vote centers for in-person voting and election day registration). From memory, Arizona's permanent no-excuse absentee ballot list accounts for >70% of votes cast in that state, California's for >60%, and Montana's for about 50%. No voter id hassles when you vote at your kitchen table.

This particular pair of reforms are popular in both red states and blue ones.

Speaking of voting, there's been a meeting going on with Republican lawmakers in Russia. I wonder what arrangements they're making to ensure that their states forever remain red.

Also, I wonder who Marcy Wheeler is talking about here.

the conservative's dilemna regarding Roe is:

(a) they've been promising the end of Roe since Roe was passed, and now they're in a position to deliver

(b) if Roe is overturned, economic and political conservatives lose the connection to social and religious conservatives

(b) if Roe is overturned, economic and political conservatives lose the connection to social and religious conservatives.

Also, both groups discover that their female members are nowhere near as enthusiastic on the subject as they have been assuming. In short, it becomes an electoral disaster for them in several ways.

Also, what Pro Bono said (3:24 AM)

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