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September 18, 2020


How big a step is it from that to sending federal troops(ICE?) in again - but this time with explicit federal authority to "ensure order"?

If it does happen I really hope he sends in the military. I have some faith that the troops will actually try to follow the law. Thugs from ICE? Not so much.

A lovely bit of sarcasm from Alexandra Petri

I've restrained myself on these threads today.

cleek has stepped away and we've had the 'don't throw me in the briar patch' comments, but this point from the lgm post that I quoted makes me think there is no choice.

Assuming that’s correct, [Biden popular vote win in Nov] it would mean Democrats will have won the popular vote in seven out of the last eight presidential elections. Yet, if a Trump replacement for Ginsburg is confirmed, Republicans’ would have nominated a 6-3 majority on the Supreme Court, a split that would be essentially impossible for Democrats to displace through ordinary means, irrespective of the results of future elections.

Just out of curiousity, here's a list of things that have been mooted (if I missed any, please add them)
-add SC justices to balance the court
-end filibuster
-set up a national election framework
-statehood for DC
-statehood for PR

Of course, one might lead to another, and perhaps some are requisite for others to occur, but I'm curious what order people would put them in and where they would draw the line to say that was too far.

And Yglesias adds another (via lgm)

Expand the lower courts, at a minimum, as a way of improving the operation of the federal judicial system and putting the Supreme Court on notice to behave itself.

lj, I'm guessing that, when you say "set up a national election framework", that has some relation to Yglesias' "Adopt tough legislative curbs on partisan gerrymandering." If not, probably should add that as well. And clarify what a "national election framework" might look like.

The Founders would have executed Leo.

- end the filibuster. This comes first partly because it's quickest and easiest -- nobody beyond the Senate involved. And partly because, absent an unimaginable electoral blowout, it's a prerequisite for doing the others.

- statehood for Puerto Rico. Not a philospohical issue, just a political one. It will take time to work thru the process, but no reason not to kick it off immediately.

- statehood for DC. Maybe, maybe, a tiny philosophical issue about whether the national capital should be a state or not. And, if not, how citizens living thete ought to get some say in national politics. Otherwise, basically the same as Puerto Rico

- balance out the Supreme Court, one way or another. The previous items don't present constitutional issues, so the Court doesn't come into them. But the rest might. At least with the Court makeup currently in prospect.

- curbs on partisan gerrymandering. It's hard to come up with a plausible objection to this . . . unless you are determined to avoid ever trying to win a majority of the electorate. And who wants to admit to that? (Although Trump, being how he is, might blurt it out.) Not that it wouldn't get a Supreme Court challenge ("states rights" maybe?). And the current partisan Court might somehow rationalize overturning it.

- national election framework. This comes last for a variety of reasons. Not least, that it would first require thrashing out just what it means and how to get there. A Federal law? A Constitutional amendment? Something else?

...curbs on partisan gerrymandering. It's hard to come up with a plausible objection to this...

For US House districts, possibly, Article I Section 4 until the Supreme Court decides how far it stretches. It's harder to come up with legal justification to interfere in state legislative districting beyond Reynolds v. Sims and explicit racial discrimination. Contemporary software makes that part easy. The software can probably even get around state constitutional requirements like contiguous, compact, or minimize city and county splitting.

It's kind of fascinating living in a region where both red and blue states are implementing nonpartisan/bipartisan district drawing commissions.

People have been taking Puerto Rico's name in vain about this for a while now, as if all we have to do is snap our fingers and PR will help solve our problems. But Puerto Ricans have own ideas about statehood, and they're complicated and changeable. There's a referendum (their sixth, acc' to the Wiki) on November 3.

There's a referendum (their sixth, acc' to the Wiki) on November 3.

No one ever holds a gun to their head when they do these: choose statehood or independence, commonwealth status ends on date X. Myself, if Congress were to do that, I would like them to specify in the case of statehood which language the binding version of the state constitution that Congress must approve would be written. I don't think Congress would allow Spanish, and I don't think Puerto Ricans would vote for English. Possibly relevant background, the Federal Court for the District of Puerto Rico conducts all business in English.

I'm fairly sure cleek would be all in for HR 1 passed by the House. If we take both the Presidency and the Senate, pass it immediately.

Then ratchet it up with the other reforms and see how it plays out, esp. reform of the federal district courts. It is a reform that many saner folks on both sides would agree is overdue.

Set the stage relentlessly and ceaselessly for "packing".

Save the SC numbers game for the last "nuclear option" (thank you fucking fascist Bill Frist!), like, for example, when the Court simply overturns Roe v. Wade or a similar outrage of overreach.

But simply taking that last option off the table right now is truly not so great bargaining strategy and, simply put, is political suicide under current conditions.

Puerto Rico.

Yes. JanieM is correct on this. It's not so simple.

For national election framework, I was thinking just the running of the election: moving it to a weekend, a set of national rules for ballots, standards etc. That's separate from anything about gerrymandering.

About PR statehood, that is true, but given the way PR has been treated during the Trump admin, it would seem like a point to push.

I would like them to specify in the case of statehood which language the binding version of the state constitution that Congress must approve would be written. I don't think Congress would allow Spanish, and I don't think Puerto Ricans would vote for English.

Simple solution: send both. Lots of stuff is equally official in translation. (Not to mention that the could send Congress an English version to be the "binding version". And as soon as statehood is confirmed, amend by total replacement with a Spanish version.)

I can't see Congress objecting, so long as English is one of the official languages -- that is one of the languages the state government will publish documents in, accept documents in, etc. After all, Hawaiian is an official language in Hawai'i, Souix is an official language in South Dakota, and Alaska has a slew of native American languages that are official languages. Nobody elsewhere pays any attention. Note also that a lot of states, both blue (New York) and red (Louisiana), don't have an offocial language specified at all.

Note, re Puerto Rico, that the last referendum asked what people would like, if the commonwealth option was not available. Statehood won overwhelmingly.

what order people would put them in

for me, #1 is removing impediments to voting and all other forms of screwing with the electoral process.

fix that, most of the other stuff will take care of itself in a generation.

along those lines, HR 1 is fine with me.

taking that last option off the table right now is truly not so great bargaining strategy

basically, yes.

but the thing is, the (D)'s are *extremely* unlikely expand the SCOTUS, and pretty much everybody understands that. that kind of hardball is not really their style.

other kinds of hardball might be. that kind is not.

so as a threat, I'm not sure it has much weight. and threats that carry no weight are actually worse than no threat at all. and it's totally moot in any case unless they get a solid majority in both houses of Congress.

a lot depends on who Trump nominates, whether that person passes the Senate, and what the situation in Congress looks like come January.

I'd love to be wrong, but my guess is that Trump's nominee is going to be somebody ridiculous. in my perfect world, it will be somebody so absurd that even McConnell can't muster 50 votes.

like, Harriet Miers absurd.

but more likely, it will be Amy Coney Barrett. red meat for the theocratic base, makes the liberals cry, but someone with an actual resume as a jurist.

we'll see what things look like in January.

It will be someone like Barrett, if only as they’ve already been vetted.

This article makes a forceful case for cleek’s position, and advances a partial alternative to expanding the court - jurisdiction stripping:

It is of course true that any of this only works if Democrats keep winning elections.

Here’s the link to the paper:
Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.

In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters....

There's also term limits.

The two techniques are, appropriately enough, conservative solutions (which tended to be RBG's approach, too).
Win elections, and you can much reduce the reach and relevance of the conservative court.

Kill all theocracy:

Wipe the Republican Party off the face of the Earth.

Elect fucking hypocrites, not conservative republican traitorous vermin:

Did someone already note this?

Chutzpah in its purest form.

FWIW, bobbyp's 10.03 seems like a pretty sensible approach/strategy.

but more likely, it will be Amy Coney Barrett. red meat for the theocratic base, makes the liberals cry, but someone with an actual resume as a jurist.

Her resume as a jurist began with Trump, just to be clear. Before that, she was a professor, someone who made good grades in school. That's a plus, considering many of Trump's other picks, but not exactly much of a resume as a jurist.

Nigel, that's an excellent article. It's true that court-packing is a last resort. It should be "on the table", but the author of the article is right - it probably wouldn't get Democratic support. Curtailing jurisdiction might be a good fix, although there are certainly many occasions when courts need to weigh in on statutory ambiguities and flaws. But, yes, definitely a first strike against Supreme Court abuse. Thanks!

I was going to note that the other day.

I didn't know the individual mentioned in the original article was streiff, but anyone who spent time there among the subhumans quickly caught on that he was a vile hateful piece of government-hating republican conservative dogshit.

Here he is bragging about his interactions (izzat what they call it?) with OBWI personalities years ago.

Elsewhere, he attacked Gary Farber with utter poison.

There is some evidence that he threatened Fauci with violence in his blogging musings, while of course being employed as a high level public affairs specialist with Fauci's agency.

He threatened his fucking boss. That's what I call running the government like a private business!

I wonder if he ever threatened fake Christian Erik Erickson's wife, who was the boss of that household with her rifle in the backroom that Erickson wanted to shoot Census workers with.

Let's not insult the Yiddish language with the use of the word "chutzpah" for this piece of anti-American redstate dirt.

Fauci, A New York City kid, probably still has some connections with certain characters who would be happy to hunt streiff down and fuck him up with the semi-automatic weaponry the red state goon humps in his spare time.

TO review, he's a career federal government bureaucrat, a six-figure, full bennie fuck with a glorious pension. A mouthpiece for an institution he despises and wants abolished.

In short, he is Marty's Deep fucking vermin fascist State, all of whom will be executed.

It's too bad his offices were not in the Murrah Building in Oklahoma City so that at least we could have has a head start on killing the right wing filth who invest my government, instead of the decent fed employees and children streiff's accomplice Timothy McVeigh murdered.

Strip him of his pension and his retirement health benefits.

And then tax all his other income and assets at a 100% rate for the rest of his widow's life.

Harass him to his grave.

I'll say this for him .. like Hitler, and Pol Pot, he wasn't a hypocrite, or rather, since hypocrisy seems to be the highest sin imaginable, he was an olympic free-style hypocrite of the sort only the subhuman, murderous conservative movement could birth.

If streiff was running for President against Biden, I'd vote for him on that sterling accomplishment alone, because we certainly can't allow the small-time nickel and dime, one pant leg at a time dresser hypocrites, your small town just about average lawyers, which number ALL Americans among them, to govern us.

No, let's get streiff or even Donald Trump (that could never happen) to fucking kill us with outright hatred.

I wanna be just like him.

I also want to meet him personally and fight him, the cuck.

I pity strieff's subhuman children, if in fact his sperm was at any time operable during his barren pig life.

I am completely in agreement that nothing should be off the table, but smart tactics are essential.
Interestingly Biden seems to recognise this when refusing to answer questions about what he might do in retaliation, saying, quite rightly, that to do so would be letting Trump off the hook for the decision he's about to make.

As far as that goes, the judge from Florida has other, more transactional attractions than Barrett:

Which might well float Trump's boat.

Also note in the streiff article his absolutely vile hatred of Edward, an esteemed OBWI poster back in the day, a gentle man, and a gentleman.

Also, regarding potential conservative murderers being considered for the Supreme Court, the sort of nice, harmless ladies who waved to the Jews on the trains passing East.


Not quite on the scale of Genghis Khan, which will make the killings acceptable to the superspreader, Covid-loving, death-addled, conservative movement, the latter the only pre-existing condition exempted from charges of hypocrisy.

Fuck Mitt Romney, hypocrisy's maestro.

Her resume as a jurist began with Trump, just to be clear.

I was not aware of that, thank you for bringing it to my attention.

There are worse people than Coney Barrett, and I'm not here to try to assassinate her character. She has religious affiliations that raise reasonable questions about her impartiality, full stop.

I'm not that interested in trying to read Trump's mind, but the fact that all of that touches on some of the most divisive issues in the country today seems like it would appeal to him.

The man seems to love chaos.

Did someone already note this?


I know Bill Crews very slightly. And yes, Bill Crews is streiff. When I hung out on RedState - before the Great Liberal Purge - I made a comment to the effect that people who work for a living ought to be able to live on it. I think it was in the context of a discussion about Walmart. The RedStaters loved them some Walmart, not least because at least one of them (Mike Krempasky) was on the payroll as an online "influencer".

Crews followed up with by email to say he basically agreed with me. It wasn't something he wanted to say on the board, because it wasn't a conservative enough thought to have, I guess. We had a couple of email conversations, he invited me to get together if I was ever in DC. At the time I was in the DC area occasionally for work, but it never came together.

Crews is basically an Army guy - he really does love the Army as an institution and an organization - who apparently continued on into a career in the public sector. And, he is a hard-core committed conservative partisan. He's also a guy who (at least at the time) was willing to reach out to somebody "on the other side".

Or who knows, maybe it was a plot to capture me and throw me from a helicopter.

People have a lot of sides to them.

No question they should throw his ass out of the NIH, though. He'll be fine, as JDT notes he's got a federal pension and he likely has some income stream from RedState. Those guys always had their antennae out for the monetization possibilities of their blogging side hustle.

I have no great animus towards Crews, the opposite in fact, although I find a lot of the things he believes and says abhorrent. That said, you can't bite the hand the feeds you.

No more tax dollars for Bill Crews, which is as it should be.

The dead are virtual nobodies.

The CCP?

No, subhuman conservative vermin:

Here's one:

Too bad she didn't live so she could help to kill the Republican Party.

Here's another nobody:

As with Herman Cain, another bullet saved for the truly deserving.

I don't believe we have an active open thread at the moment, so I hope you will forgive me if I link some (semi) light relief.

It's the marvellous Marina Hyde at the Guardian again, exercising her superlative skill for insult (e.g. about BoJo his emotional support psycho, Dominic Cummings). BoJo, incidentally, becoming more Trumpian by the hour - when questioned in the House about why our test and trace system (it was going to be "world-beating") is buckling under the strain, unlike those of Germany and Italy, he mentioned that we are "a freedom-loving people". Hmmm.

. That said, you can't bite the hand the feeds you.

awaiting cries of "cancel culture!"

Romney says he's voting for RBG's replacement.

Romney: FFS, but I guess not really a surprise.

For your delectation, a further note on my reference to Marina Hyde's talent at insults, a few days ago she referred to Dido Harding, the current head of the NHS Test and Trace Program, as "Dido Queen of Carnage". I do love invective coupled with wit.

BoJo, incidentally, becoming more Trumpian by the hour - when questioned in the House about why our test and trace system (it was going to be "world-beating") is buckling under the strain, unlike those of Germany and Italy, he mentioned that we are "a freedom-loving people".

The US has now edged the UK out of 10th place in COVID deaths per million.

It appears we love freedom more than you all do.

Romney says he's voting for RBG's replacement.

Probably gonna be a 6-3 court, then.

TBH I don't much care what response the (D)'s make to all of this. They just need to make a response, and a response that consists of more than Strongly Worded Statements.

Trump is a criminal. He may be a traitor, wittingly or not. He may even be insane. Check out his latest campaign blatherings about "good genes" and using the courts to make sure the "rigged election" isn't "stolen" from him. The man is a menace.

The (R)'s are governing as if they had an overwhelming popular mandate. They have no such mandate.

It's time to stop letting these assholes steal everybody else's lunch.

I want (D)'s who know how to kick ass. Biden's great, and it's probably not a good idea for a candidate for POTUS to take a hard line.

Schumer, Pelosi, and the rank and file need to level up their game. Kick ass and take names. Tell the truth about WTF is going on. Stop being polite, stop trying to act like "civility" is even an option at this point.

Harris seems like she has the gumption. Give her a platform and let her run with it.

Use every available lever to obstruct these jerks.

That's what I'm looking for.

"That said, you can't bite the hand the feeds you."

Yes, you can. Biting the hand that feeds you is as pettifogging American as apple pie baked using hands as an ingredient rather than apples.

Every hand in America that feeds republican and conservative cannibals has been bitten by these filth with impunity.

Use every available lever to obstruct these jerks.

That's what I'm looking for.

Quite right.

Chaos and violence will replace the bog standard hypocrisy some mewl about:

If we're betting now, I'll take Lagoa. Confirmed recently enough to give Graham and McConnell nominal cover for not having hearings for her again. Cuban-American and from Florida, which even Trump must realize he has to win in November.

And a history of effing with the qualification to vote - while dancing around judicial ethics.
Definitely a contender.

The more I look at it, the more I like term limits (assuming a Democratic president and Senate next year).

It completely sidesteps the whole tit for tat retaliation thing.
A twenty year maximum term would see Thomas and Breyer retire. It would leave a 5-4 Republican court, which would restore the status quo had the Garland cheat not happened. And leave Roberts as the swing vote.

And everything up for grabs in 2024.

The only problem with term limits is that it requires either (a) some sort of unprecedented trickery to remove judges by some means other than retirement, death, or impeachment; or (b) getting 38 state legislatures to approve an amendment.

I don't believe there will be any amendments proposed in my lifetime that 38 state legislatures will pass.

Why would term limits for the SC require any amendment or trickery? Judgeships are lifetime appointments, but IIRC nothing says that once you get to the supreme court you stay there for the rest of your career. Just thank them for their service and send them back down a level as a federal judge.

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

That's what the Constitution says. I think the Supreme Court would probably interpret "hold their Offices" as being to hold the particular office for which they were confirmed. Even if it could be interpreted differently, they're the ones who would decide.

the Constitution doesn't actually say "for life" anywhere (it's only implied). but it does say you can't diminish their compensation. and since there are different salary levels for Supreme vs Appeals justices, there would need to be some adjustments around that too.

I don't believe there will be any amendments proposed in my lifetime that 38 state legislatures will pass.

Not even for free beer? I am disdraught.

it might be too early to start laying out the Dems' agenda, however.

What cleek said. The "lifetime tenure" is not explicit. It just says that they shall not be removed during their continuance. If Congress passed a law delineating what that continuance consists of, then we'd have to see where that landed.

What the Constitution actually says is "good behavior." For the SC, everyone assumes that Congress uses its impeachment power to decide whether the behavior is good or bad on a case by case basis. To date, only one justice has been impeached and he was acquitted on all charges.

Agreed, Michael Cain, if you are looking at grounds for removal. We are just noting that "Continuance in Office" is not explicitly delineated, which would seem to open the possibility of legislating what that "Continuance of Office" consists of and limiting it in a way that does not threaten impartiality. A longer, staggered term might ensure that. Some discussion of the limits side.

I've dealt with enough contract disputes in union grievances to spot the ambiguity in the phrase "Continuance of Office." May as well test that and see what happens.

Several Justices, including Roberts, have spoken in favour of term limits before.
And they might in any event see them as eminently preferable to court expansion - which they are powerless to prevent.

the problem with all of this is that judges are appointed by politicians, so partisan concerns will always be part of the process.

maybe we should just have direct election of SCOTUS justices, the way many states do it.

Christians who are willing to goddamned fight the Evil:

Direct election doesn't seem like an improvement to me, especially when we have a system where the courts are allowing gerrymandering and other election manipulation to go forward. Seems that would just put more pressure on to rig the vote in your favor.

Term limits would at least reduce the power and influence of the appointment and introduce a corrective feedback loop into the judicial process.

i was thinking an actual national vote, not some EC-esque crapfest.

seat comes open, parties nominate their judges, all voters vote.

maybe we should just have direct election of SCOTUS justices, the way many states do it.

The GOP, knowing it is at a disadvantage being able to run up a national popular vote majority, most likely would never go for it.

Wouldn't this require a Constitutional Amendment?

Would the Green Party be allowed to run a slate of judges also?

Every 4 years the national party ticket includes somebody nominated by them to be Chief Justice. If the ticket wins, he/she gets the job. The balance of the Court is made up of alternating nominees chosen by the political parties on a 4 year alternating basis. No more nasty hearings! If they do a good job, they keep getting renominated. No term limits.

I was reading an article about SC possible nominees at nbc news and this paragraph was in it. Which I thought was interesting because they counted Roberts, I guess, as a liberal.

"The court, currently split at 4-4 between conservatives and liberals after Ginsburg's death, will weigh in on such a case in the fall. In Fulton v. the City of Philadelphia, the court will decide whether faith-based child welfare organizations can reject same-sex couples and others whom they consider to be in violation of their religious beliefs."

maybe Roberts get counted as a liberal because he's expressed occasional concern about the Court's future legitimacy.

Roberts frequently acts as a swing vote.

In the case you mention, he is less likely to do so, I think.

Bouie weighs in. Good read.

Fine article.

Romney has always been a rather devous character

Think I finally managed to put my current state of political mind into words:

"We are in a time where the choices seem to be winning enough to achieve a little bit, but not as much as the times demand of us to meet our challenges, or to try to respond as the times demand, and lose

Both feel like a defeat."

This is quite the bracing analysis of our moment:

Not an enjoyable read.

try this one, nous....

This is my analysis of the American status quo:

The country is full of frightened angry white people who think everybody else is picking on them. And they're FUBARing everything they can get control over.

IMO the solution here is for the (D)'s to get their asses out into every damned corner of the country and make their case. They have about a million solid selling points, for pretty much every demographic other than seven-figure types and Nazis.

They need to get their asses in gear and sell it. Everywhere. Run candidates for everything - mayor, selectmen, county offices, state offices.

That was Howard Dean's pitch when he was chair of the DNC, and it was the right play. It appears to have be de-emphasized, I don't know why.

It will take 10-20 years. But then we'll have a country worth living in again.

I like this conversation:

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