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October 23, 2020

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The Supreme Court 5 will figure out some way to rule to swing the election for Rs

Seems like that's the plan.

If it goes that way, we'll see if people are up for good trouble, or if they'd rather watch a ball game.

Could go either way.

It's gonna be a weird week, and then a weird couple of months until January 20. And then, perhaps an extremely weird four years after that, depending.

I wake up, there's food in the fridge, I still have a job, for now at least. My wife and I are basically healthy.

I offer the universe my thanks, and carry on.

Beyond that, it's kind of a jump ball. I have no idea where this all ends up.

Stay safe everyone, and try not to let it get too far inside your head.

I’ve been pretty adamant about how I think packing the court is a game theory loser. But Kavanaugh has just about convinced me there’s no choice.

the next few days will be my test.

If they make it clear that the court will be nothing but a GOP sniper nest, then I say PACK THE FUCKER TO THE BRIM. If they can manage to resemble an actual Court, then we’ll see

the next few days will be my test.

could play out longer than a few days, but yes.

I'd support adding two to the court. The "conservatives" get to keep their majority, but it puts Roberts back in the hot seat as sensible swing vote. So, not a total "F*** you", more of a shot across the bow. A rebalancing.

Biden, should there be a POTUS Biden, should stay the hell out of it. It's Congress' prerogative and Congress' play.

When Angus King is talking about adding members to SCOTUS, you know they've pushed it too far:

King, a moderate independent who often votes with Democrats, said he had heard a “great deal of pearl-clutching” about potential court packing, but noted that the Constitution does not require a specific number of justices on the Supreme Court, which repeatedly changed during the 1800s.

“I don’t want to pack the court,” King said. “I don’t want to have to change the number. I don’t want to have to do that. But if all of this rule-breaking is taking place, what does the majority expect? What do they expect? They expect that they’re gonna be able to break the rules with impunity and when the shoe, maybe, is on the other foot, nothing is going to happen?”

He's using the word "rules" loosely, of course, but his final point is the big one. I don't think bygones are going to be bygones this time, if we get a "this time."

Stay safe everyone, in every way that you can over the next days and weeks.

An interesting - if not exactly uplifting, sorry - take here:

The danger now seems less that Biden loses, and more that a far-Right leader who’s much more competent than Trump emerges within the next four to eight years. A leader who will capitalise on the long-lasting damage caused by the pandemic, and who’s smarter about leveraging myths of American ‘freedom’ to oppress and exploit others. Someone who more successfully pigeonholes the Democrats as the party of the rich elite, which is what they’re increasingly becoming. As Biden infamously told wealthy New York donors at a fundraiser in June, “nothing will fundamentally change” if he’s elected.

https://www.opendemocracy.net/en/trump-will-lose-problem-what-comes-next/

cleek, I'm impressed. A change of mind when facts on the ground change is a mark of (as the I Ching used to say) "the superior man". And in return I will say that perhaps this kind of attitude will have the justices themselves thinking more carefully.

Other than that, the only thing to say to you all is "be careful out there". The thoughts and prayers of the world are with you.

But there's hope as well:

https://twitter.com/mattyglesias/status/1323240859878461440

"The Acceptance and Expression of Prejudice during the Trump Era” which is available today for free. The key argument of the book is that Trump does not just *reflect* but actually *causes* ugliness in American public debate.

the main reason why people are so likely to take cues about norms from politicians – namely, that they can reasonably infer that the fact that those politicians have been successful means that support for their expressions of prejudice is widespread among their fellow citizens.

If people take Trump’s success as a signal about the acceptance of prejudiced rhetoric, then they would likely take his defeat – and the defeat of other prejudice- peddling politicians – as an equally strong counter-signal. Furthermore, such a defeat should also dissuade other politicians from following in Trump’s footsteps.

Democrats as the party of the rich elite

so there must be, what, 70M rich elites in the US?

what a country!

But Kavanaugh has just about convinced me there’s no choice.

"Game theory", bah, but welcome (perhaps) aboard. The Dems should have packed the Court in 1976 in retaliation for the illegal Court packing by Nixon, and they should have packed it HARD.

We've lived with a conservative court ever since, and its hideous rulings have had a terrible adverse impact on economic, political, and racial equality and justice.

See Adam Cohen's book, "Supreme Inequality". A good read.

....but it puts Roberts back in the hot seat as sensible swing vote.

Roberts is not "sensible". He is an ideologue who knows better than to overreach. The Long Game is his play. Don't get played.

He is an ideologue who knows better than to overreach.

To me, knowing better than to overreach is a form of being sensible.

I'm not that interested in his motivation. In the context of SCOTUS rulings, I'm interested in outcomes.

And the two new seats could go to Garland and Obama. One for payback, one just to watch MAGA heads explode.

I try to be a nice person, but I'm finding myself provoked by current events.

And the two new seats could go to Garland and Obama. One for payback, one just to watch MAGA heads explode.

Well, if you are willing to go that far, why leave the thugs with a majority? Add 3 seats to make it 6-6: Garland, Obama, Hillary Clinton.

Sit back and watch the fur fly.

Shelby County is an outrage. Citizens United overturned precedent in order to kiss the ass of corporate power. Sebelius was a constitutional joke.

All the handiwork of "sensible" John Roberts.

He is not sensible. He is dangerous.

I have read recently that the number nine for the Supreme Court was picked to reflect the number of circuits at the time. I think whatever that number makes perfect sense. And yes, it would give the majority of Americans a "majority". It's about time.

And, sure, Garland could be chosen since he was once acceptable to both sides. The other three should be qualified jurists whose experience has demonstrated their ability to understand issues affecting impoverished and marginalized people, while also understanding white color crime, environmental law, and intellectual property.

A bit of a different subject, a New Yorker article on Asian Americans and politics. Interesting stuff

https://www.newyorker.com/magazine/2020/11/02/are-asian-americans-the-last-undecided-voters

In other words, 13 justices.

And the two new seats could go to Garland and Obama. One for payback, one just to watch MAGA heads explode.

I don't know how healthy Chief Justice Roberts is. But my fantasy has been for Obama to take the path of President Taft: go on to be Chief Justice. He's young enough to make that viable.

And it would have the side benefit of making MAGA heads explode.

picking Garland because he's acceptable to the GOP seems like less of a plus than it did pre-McConnell Rule.

picking Garland because he's acceptable to the GOP seems like less of a plus than it did pre-McConnell Rule.

Yeah, he can only be on there if we add four in all.

Well, if you are willing to go that far, why leave the thugs with a majority?

two chickens seems like more than enough to count before the hatching is done.

too many, most likely, but every once in a while it's fun to indulge in wishful thinking.

no rest until all of this is settled.

I like sapient's point about 13 circuits, 13 Supremes.

Also, is John Roberts the Chief for as long as he's on the Court? Or could the next president say: "Scoot down the table, John, here's the new Chief"?

My guess is that that's another one of those "norms" (if it is indeed a "norm" rather than something more comcrete) that McConnell et al. would ignore as if it never existed, but that the Dems will respect even if they do expand the court.

Also -- given that the term "court-packing" has such a...shall we say complex...history, I think I'm going to say "expanding" from now on. I'm sure the whole world will follow suit, just like it did with "Clickbait." ;-)

today's Structural Racism Quiz:

white yahoos block a multi-lane highway with the Trump caravan.

black people march across their town, with a permit, to vote.

which of them get the pepper spray and arrests ?

[ ] the black people
[ ] the Trump supporters

no rest until all of this is settled.

LOL...it hasn't been settled since 1789. Outlook for attaining that state is, um, tenuous.

Stay safe and centered (read that somewhere).

I like sapient's point about 13 circuits, 13 Supremes.

Likewise. There's much to be said for establishing a principle, beyond just tactical convenience, for setting the number of Justices.

two chickens seems like more than enough to count before the hatching is done.

***

no rest until all of this is settled.

Two too many, in fact. The evil eye is ever vigilant for such chicken-counting...

The thing with the number of SCOTUS justices and circuit courts started because SCOTUS justices used to also sit on the circuit bench.

Originally there were three circuit districts, one for each broad geographic area of the country - Eastern, Middle, Southern. Two SCOTUS justices would sit on each circuit bench, so there were six SCOTUS justices.

That was subsequently expanded to nine as additional circuits were added.

It was never one to one (I think), and SCOTUS justices don't sit on circuit courts anymore. So the tradition may not be relevant, and might never have justified 13 justices in any case.

Not trying to rain on anybody's parade, and given the deliberate and sustained effort by conservatives to populate the federal bench (at all levels) with doctrinaire justices I have no problem with (D)'s doing whatever they need to do to re-balance that.

But I'm not sure the one-SCOTUS-justice-per-circuit-court thing is historically correct.

LOL...it hasn't been settled since 1789.

Tru dat.

Realistically, no rest, full stop. Which is kind of a PITA but it is what it is.

We're divided by the same stuff we were divided by 50 years ago. Or 90 years ago, for that matter. Probably longer.

Yes, lots of progress since then, but some folks just can't let it be.

But I'm not sure the one-SCOTUS-justice-per-circuit-court thing is historically correct.

You're probably right about this - don't have time at the moment to do research, so thanks. But more circuits means more appeals. The Supreme Court takes very few cases compared to the number presented for appeal, and the percentage has become less over time.

The population of the US now is obviously much greater, and there are constant complaints about crowded dockets in the federal courts. It makes sense to expand the number of judges for a lot of reasons, including to balance the court more equitably.

It makes sense to expand the number of judges for a lot of reasons, including to balance the court more equitably.

Works for me.

And now, to avoid the attention of the vengeful gods, I will hold off on any further chicken-counting until this mess is settled.

I don't think anybody in this crowd needs a reminder to vote, but if you do, DON'T FORGET TO VOTE. Mask up if you go in person, stay safe.

Be cool everybody. This stuff is more than important, but try not to let it take up too much space in your head. Go outside, take a walk, have a (safe and socially distanced!) chat with your neighbors. Pet your dog if you have one.

Life is gonna go on one way or another. Do what you need to do to keep yourself sane so you can keep on making your corner of the world a better place.

"And it would have the side benefit of making MAGA heads explode."

Nagahapen. Too little inside, surrounded by impenetrable bone.

Shaped charges required.

One bit of joy for me in this election that I meant to mention earlier was that I got to vote to legalize marijuana for recreational use in my home state. It’s the little things, right?

It was never one to one (I think), and SCOTUS justices don't sit on circuit courts anymore. So the tradition may not be relevant, and might never have justified 13 justices in any case.

It's not that I care whether there is a tradition. It's just that, as a matter of avoiding devolving into a straight tit-for-tat power game, I'd like to see something that looks like an objective standard. Want to add more Supreme Court justices? Add more circuit courts. Still quite doable, of course. But at least a bit of a disincentive.

"And it would have the side benefit of making MAGA heads explode."

Nagahapen. Too little inside, surrounded by impenetrable bone.

OK, implode. Picky, picky, picky....

Not counting chickens, just riding a favorite hobbyhorse.

I've gone on more than once, including fairly recently, about the population increase since 1790 in relation to the House. Someone said the House is unwieldly already, we can't make it bigger, but IIRC Michael Cain said sensible things about how it's entirely possible to make it less unwieldly.

Anyhow, sapient also makes a good point relating population to the size of the Court (re: the # of appeals that get generated vs how many they can take etc.).

As with Congress, some creativity would be required to figure out how to apportion appeals to subgroups etc. But nothing, it seems to me, out of the realm of feasibility.

This writer favors packing the SC, but the article is also useful for outlining other ideas for court reform ( which he opposes as inadequate),

https://jacobinmag.com/2020/11/supreme-court-packing-democrats

I don’t know what I think. I am certainly open to packing. Assuming Biden wins.

From Donald's link:

To be sure, court packing is no panacea. Democrats must add justices in addition to ending the filibuster, abolishing the electoral college, and granting statehood to Washington, DC, among other ideas now finding traction among mainstream politicians. Democrats should also strongly consider impeaching Supreme Court justices, as, again, Republicans have done at the state level for years. And they should consider amending or even replacing the Constitution.

But court packing must be toward the top of the Democratic agenda, for it is perhaps the most procedurally straightforward and unquestionably constitutional reform they could enact. The Constitution and centuries-old statutes plainly allow Congress to determine the size of the court, and the number of justices has changed repeatedly throughout history; further, Congress has routinely expanded lower federal courts in recent decades (and even sitting judges say another expansion is long overdue). The Democrats should pack them all.

The first paragraph makes it seem like the guy is not in touch with reality. Abolish the filibuster? Okay, not that hard for the Senate to change its own rules. Abolish the Electoral College? A whole other kettle of fish.

The second paragraph actually makes sense and provides some useful debating points, which I will take note of for future conversations.

And now I'm in that state where the phrase "court packing" affects me like the scratching of fingernails on a chalk board. "Packing" basically accepts a framing that treats it as a political ploy. "Expanding" is more in keeping with the second paragraph quoted above.

He also wants to amend or replace the Constitution, so yeah, he is daydreaming on some of those points. I’d be a little worried about what we would get with a new Constitution.

Democrats should also strongly consider impeaching Supreme Court justices

That is something I think that should be used with extreme care.

I can certainly see a case for impeaching and removing an incompetent partisan hack like Kavanaugh. On the other hand, while I have a very low regard for Justice Thomas' opinions, I am reluctant to say that he falls to the level that would warrant removal.

Artificial Intelligence (TM) already performs many tasks formerly consigned to humans, even in the legal world -- e.g. "discovery". Will judging eventually succumb? Will we get AI judges after, or before, self-driving cars?

Would AI judges disagree amongst themselves like human ones, looking at the same facts, law, and precedent, usually do? If not, why would you need more than one of them? If yes -- if it matters which AI judge fills a seat -- then what would its confirmation hearing be like, I wonder?

Presumably AI nominees would have no history of drunken debauchery or religious fanaticism, but I could be wrong:)

--TP

the GOP will frame the issue as 'packing' (also they'll claim it's unconstitutional and illegal and against the will of the people).

the press will accept the frame, because they will run as fast as they can back to treating the GOP as the responsible party of sober adults.

Will judging eventually succumb? Will we get AI judges after, or before, self-driving cars?

before.

but like all AI, they will be flawed because everything they 'know' will depend on what they were taught. the debate will become "Justice XPS8700 was trained on Data Set LibertyLawv2097.12" Can we really trust it with our future?"

like all AI, they will be flawed because everything they 'know' will depend on what they were taught.

That, as always, will be a key problem. I can program an AI judge which will reliably come to legal conclusions that I favor. OR that will reliably come to conclusions that I dislike. One thing I think we can reliably see (at least currently) is that the folks who end up in Congress, and thus would presumably confirm particular AIs, are pretty clueless about computer technology in general and things like AIs in particular.

Also, we have over time seen judicial views evolve on a variety of issues. How would we determine when the AI's views should change? If you look at how far Congress lagged the courts on everything from Civil Rights (in the 1950s) or gay rights (across the last half of the last century), leaving it to Congress to drive progress seems like a poor choice.

The link I provided also referenced Samuel Moyn’s ideas ( which the Jacobin writer opposes). His link was to a New Republic article, but in case you exceed your free article limit, here is an interview with him at NPR.

https://www.npr.org/2020/10/22/926809395/what-might-the-supreme-court-look-like-in-the-future

Would AI judges disagree amongst themselves like human ones, looking at the same facts, law, and precedent, usually do?

Different AI algorithms, trained on the same data set, often yield different results when run against the same test data. In fact, sometimes the same algorithm, trained twice using the same data set, produces different results. One of the common training methods is, after all, called stochastic gradient descent: random numbers are intentionally tossed into the training process.

An obvious follow-on question is, "But won't all the courts be using the same software?" Trust me when I say that legislators are notoriously difficult to convince to spend money on software. Different states will perform upgrades to software and hardware at different times, perhaps years apart.

A more interesting question is, "What do we do the first time a prisoner files suit on the grounds that if s/he were tried by the current version of the software, they would be found not guilty?"

they will run as fast as they can back to treating the GOP as the responsible party of sober adults

Alas, I bet this is true. How to prevent this, while also at the same time restoring confidence in decent journalism, is a conundrum. The size of the task confronting the Dems, if they are able to win the presidency and the senate, and confronting the sane portion of the American public, is dauntingly monumental.

The size of the task confronting the Dems, if they are able to win the presidency and the senate, and confronting the sane portion of the American public, is dauntingly monumental.

it truly is.

i hope the maximalists who are expecting everything to change on day one can find a way hang on at least through the mid-term. this stuff is going to take time and energy.

"What do we do the first time a prisoner files suit on the grounds that if s/he were tried by the current version of the software, they would be found not guilty?"

if there's a 'current' version, that implies there was a previous version and something had to change. will people convicted by v[N-1] be able to appeal to the new version?

My "AI judges" comment was a tongue-in-cheek way of pointing out that The Law depends on which humans get made into judges. The right-wing piffle about "originalism" or "textualism" or "strict construction" is designed to fool the gullible into believing otherwise. Personnel is policy. We all know it. The right wingers revel in it and boast of their staffing coups to each other, while piously professing to have "principles" unlike us hippie libruls. What they have is goals, not principles. Somebody tell The Village.

--TP

Btw, thank you for your answers on the chemistry (teacher) question! :-)

Telling justice Thomas that he'll be replaced by Anita Hill could be the way to give him a stroke or heart attack. If that doesn't work make her his colleague for a time.
OK, that joke is anything but new.

Btw, thank you for your answers on the chemistry (teacher) question! :-)

Sorry I didn't answer, Hartmut. It has been so long since I took chemistry that I'm pretty sure any stereotypes I knew about are long replaced. I liked my chemistry teacher in high school, and didn't take it after that. Since my lab partner was really funny and great, I was always happy to be in chemistry class!

The only sane decision. But still worth noting that it got taken correctly.

A federal judge has rejected Republicans’ attempt to invalidate tens of thousands of ballots cast via “drive-through” voting in Harris County, which is home to Houston.
He apparently has some doubts about drive-thru voting. But he's not about to toss the votes of people who used the method already. (With the Texas Supreme Court having said it was OK.)

So the odds that Biden makages to score an upset in Texas just jumped.

I've mentioned trying to stay "chill" a couple of times in this thread.

russell offered a similar suggestion, in his inimitable russell style, at noon today:

Be cool everybody. This stuff is more than important, but try not to let it take up too much space in your head. Go outside, take a walk, have a (safe and socially distanced!) chat with your neighbors. Pet your dog if you have one.

Life is gonna go on one way or another. Do what you need to do to keep yourself sane so you can keep on making your corner of the world a better place.

Here are two things that might help that project along:

1. A crank judge in Texas does the right thing.

2. The Lincoln Project offers a last-day motivator. Go ahead, I dare you not to cry.

(P.S. I see wj beat me to it about the TX decision.)

Since I was the person who reacted so spikily to being advised to chill, I apologise. As has become obvious, this stuff has been taking up "too much space in my head", in russell's excellent phrase. I am not at all good at shifting that kind of stuff (which is why I am absolutely hopeless at mindfulness), but the news about the Texas judge has cheered me up. As for the Lincoln Project ad, it didn't make me cry (This Land is Your Land always does that), but it sure made me long to do a road trip - America is beautiful, and full of wonderfulness as well as the other stuff.

Technically, the district judge ruled that the plaintiffs lacked standing. He also ordered Harris County to keep the memory cards from the machines used for drive-through voting separate from other cards in case of an appeal.

The Lincoln Project has got me like that more than once (and again!). I'm sure glad they're making their ads for our side this time.

And by a very strange stroke of something, after posting my last comment I watched University Challenge which is our version of the quiz game which I think in the US might be called College Bowl, and the answer to one of the questions was This Land is Your Land, and the final question (which none of them had time to answer) was "What was the final word on the following slogan on Woody Guthrie's guitar - This machine kills.....

Perhaps I am going mad, but I'm choosing to take this as an omen.

Experiment....

4 fall DSCN5882

Janie - some wonderful landscapes! I loved many, but the eerie one of the trees reflected in the water, and looking as if they're shrouded in something like spanish moss - wow! I wonder what this experiment was about? Is it mindfulness, or at least taking our minds off stress and tension?

The experiment was to see if we could still post photos in comments. See new thread.

Ah, thank you.

Experiment....

We've been moving. View out one of our new windows last Monday. Today, OTOH, was brilliant sunshine and a high of 74. Front Range Colorado, where "What season are we having today?" is a perfectly reasonable question to ask before getting dressed.

Michael -- great shot. I can see it in my reined in Firefox (NoScript is running) but I can't see it in Chrome, where supposedly my settings are less repressive, although I do have AdBlockPlus running.

IIRC, the default security settings for Chrome are if the main page is secured (as Obsidian Wings is these days) the browser won't load embedded content from unsecured sites (my stuff hosted at GoDaddy). Firefox, OTOH, only warns you that some of the content is unsecured.

I just can't bring myself to pay what they want for an SSL certificate.

Thanks, Michael. I'll dig into my settings when I get time.

The Vienna attack is all over the news, but this hasn't gotten much coverage - awful:

Kabul University: 22 dead, more wounded as gunmen storm campus

https://www.bbc.co.uk/news/world-asia-54750839

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