The War for the Supreme Court (Ginsburg is dead)

[Isgrimnur]

Judge Nancy Grace. She’ll be tough on crime.

[Kraken]

Some people are idiots who lack any understanding of the fundamental nature of the Supreme Court. RBG’s job was never to hold on to her seat so as to ensure it remained a “liberal” seat and didn’t flip to a “conservative” seat. Despite the stupid and self-defeating partisan nature of our politics today, the court doesn’t (and shouldn’t) see itself that way.

Yup. Which is why I'm much less concerned about the partisan leanings of the nominee and much more concerned about their legal acumen.

The parties are in a state of flux at the moment. I'm not at all confident that either party is going to look remotely the same in 10 years, much less 15 or 20. So as long as Trump is willing to put an actual top mind on the Court, and not an under qualified lackey, I will grudgingly accept it. Not that my acceptance means anything either way, of course.

His smartest move would be to nominate a highly qualified, politically uncontroversial woman who might even draw a Dem vote or two. Not that trump ever makes smart moves, or that I know who that might be...but it's what I'd do if I were worried more about my reelection than ideology.

So we should expect either Justice Palin or Justice Coulter, then.

Everybody loves hotness, so let's go straight to Ivanka.

[Little Raven]

His smartest move would be to nominate a highly qualified, politically uncontroversial woman who might even draw a Dem vote or two.

I honestly don't think that person exists. There are certainly highly qualified women, but all of them are going to come with controversy, from one side or the other. Maybe even both.

[Defiant]

His smartest move would be to nominate a highly qualified, politically uncontroversial woman who might even draw a Dem vote or two. Not that trump ever makes smart moves, or that I know who that might be...but it's what I'd do if I were worried more about my reelection than ideology.

So we should expect either Justice Palin or Justice Coulter, then.

Everybody loves hotness, so let's go straight to Ivanka.

Is Harriet Miers still available?

[Grifman]

You wouldn't know it from the both-sides coverage, but America is decidedly pro-choice.

It's not a quite straight forward as that:

https://news.gallup.com/poll/313094/ame ... -year.aspx

Americans' overall stance on abortion has been stable in recent years, with the 48% calling themselves "pro-choice" and 46% "pro-life" similar to the close division on this measure observed most years since 2010.

https://www.washingtonpost.com/health/2 ... trictions/

A clear majority (69 percent) of the public supports laws requiring abortions to be performed by doctors who have hospital admitting privileges, similar to the requirements in a Louisiana law challenged in a case that goes before the Supreme Court this term. Majorities of Americans also support laws that require women to wait 24 hours between meeting a health-care provider and getting an abortion (66 percent) and laws requiring doctors to show and describe ultrasound images to them (57 percent).

Americans are also split over laws that prohibit abortions once fetal cardiac activity is detected — the so-called “heartbeat” bills that have been passed by numerous states over the past 12 months. Forty-nine percent support them, and 50 percent are opposed. Yet majorities are opposed to making it a crime for doctors to provide abortions (65 percent) or for women to be fined or imprisoned if they get abortions (74 percent.)

At best you can say most Americans support legal abortion but also want more restrictions. Or that they are very confused and have mixed emotions.

Most Americans don't seem to fit the pro-choice/pro-life paradigms very well.

[malchior]

You wouldn't know it from the both-sides coverage, but America is decidedly pro-choice.

It's not a quite straight forward as that:

https://news.gallup.com/poll/313094/ame ... -year.aspx

Americans' overall stance on abortion has been stable in recent years, with the 48% calling themselves "pro-choice" and 46% "pro-life" similar to the close division on this measure observed most years since 2010.

https://www.washingtonpost.com/health/2 ... trictions/

A clear majority (69 percent) of the public supports laws requiring abortions to be performed by doctors who have hospital admitting privileges, similar to the requirements in a Louisiana law challenged in a case that goes before the Supreme Court this term. Majorities of Americans also support laws that require women to wait 24 hours between meeting a health-care provider and getting an abortion (66 percent) and laws requiring doctors to show and describe ultrasound images to them (57 percent).

Americans are also split over laws that prohibit abortions once fetal cardiac activity is detected — the so-called “heartbeat” bills that have been passed by numerous states over the past 12 months. Forty-nine percent support them, and 50 percent are opposed. Yet majorities are opposed to making it a crime for doctors to provide abortions (65 percent) or for women to be fined or imprisoned if they get abortions (74 percent.)

At best you can say most Americans support legal abortion but also want more restrictions. Or that they are very confused and have mixed emotions.

Or other confounding factors. I can't help but wonder how many folks polled understand what 'hospital admitting privileges' means or how comparative risk medical procedures are regulated? The questions are being asked in isolation of context. A day wait sounds great but does it allow for emergencies? It isn't that I don't trust the results. It is that I'm skeptical of question/result pairs that go into specific policy 'ideas'. KFF is pretty neutral but they still are polling the general public about relatively complicated health policy issues.

[Dogstar]

Some people are idiots who lack any understanding of the fundamental nature of the Supreme Court. RBG’s job was never to hold on to her seat so as to ensure it remained a “liberal” seat and didn’t flip to a “conservative” seat. Despite the stupid and self-defeating partisan nature of our politics today, the court doesn’t (and shouldn’t) see itself that way.

Yup. Which is why I'm much less concerned about the partisan leanings of the nominee and much more concerned about their legal acumen.

The parties are in a state of flux at the moment. I'm not at all confident that either party is going to look remotely the same in 10 years, much less 15 or 20. So as long as Trump is willing to put an actual top mind on the Court, and not an under qualified lackey, I will grudgingly accept it. Not that my acceptance means anything either way, of course.

I don't understand either of these takes. In a world absent of partisanship, sure. However, it's not just about legal acumen. For example, if someone is a strict constitutionalist (as opposed to someone that views the Constitution as a living document), his/her legal decisions are more likely to generate perceived conservative outcomes (that's not an absolute, just a probability). It's why Scalia and Ginsberg often didn't wind up on the same side. Moreover, Justices of course have personal/political beliefs that they use as an end target they square the law to fit. To pretend that they don't matter, and they don't help shape judicial decisions, is... naive? It may not be how things are supposed to work, but it is how they do work, or else nominees wouldn't get asked about strict constructionalism, the First Amendment, the right to privacy, the right to bear arms, and so on and so forth. The odds that, especially at this point, we're getting nominees who approach cases with an eye only to existing law and the facts of the case are very slim.

[El Guapo]

One side note on the timing here. Apparently because of the nuances of McSally being appointed to fill McCain's term, if Kelly beats her in the Nov. election (and he's the overwhelming favorite at this point in light of polls) apparently he would get seated in late November, rather than having to wait like everyone else until January. So to the extent that McConnell wants to use the lame duck session to confirm someone, his margin for error would shrink considerably at that point.

[Defiant]

Personally, I think the court should try to be reflective of society, because I think people would have more faith in a court (and a government) that reflects society. That means in terms of demographics and in terms of political philosophy.

[gameoverman]

You wouldn't know it from the both-sides coverage, but America is decidedly pro-choice.

It's not a quite straight forward as that:

I agree and for non scientific reasons. If the US was pro choice then most Republicans in office wouldn't be in office. Being 'pro life' is one of their main planks, similar to being pro business. The reason Republicans aren't finding it difficult to get elected is, to me, a clear indication that people are not as pro choice as it might seem.

People can say anything they like, but it's more informative to observe what they do.

[El Guapo]

You wouldn't know it from the both-sides coverage, but America is decidedly pro-choice.

It's not a quite straight forward as that:

https://news.gallup.com/poll/313094/ame ... -year.aspx

Americans' overall stance on abortion has been stable in recent years, with the 48% calling themselves "pro-choice" and 46% "pro-life" similar to the close division on this measure observed most years since 2010.

https://www.washingtonpost.com/health/2 ... trictions/

A clear majority (69 percent) of the public supports laws requiring abortions to be performed by doctors who have hospital admitting privileges, similar to the requirements in a Louisiana law challenged in a case that goes before the Supreme Court this term. Majorities of Americans also support laws that require women to wait 24 hours between meeting a health-care provider and getting an abortion (66 percent) and laws requiring doctors to show and describe ultrasound images to them (57 percent).

Americans are also split over laws that prohibit abortions once fetal cardiac activity is detected — the so-called “heartbeat” bills that have been passed by numerous states over the past 12 months. Forty-nine percent support them, and 50 percent are opposed. Yet majorities are opposed to making it a crime for doctors to provide abortions (65 percent) or for women to be fined or imprisoned if they get abortions (74 percent.)

At best you can say most Americans support legal abortion but also want more restrictions. Or that they are very confused and have mixed emotions.

Or other confounding factors. I can't help but wonder how many folks polled understand what 'hospital admitting privileges' means or how comparative risk medical procedures are regulated? The questions are being asked in isolation of context. A day wait sounds great but does it allow for emergencies? It isn't that I don't trust the results. It is that I'm skeptical of question/result pairs that go into specific policy 'ideas'. KFF is pretty neutral but they still are polling the general public about relatively complicated health policy issues.

Yeah, polling here misses the core issues in a lot of ways. Though that's mostly intentional - the core of the pro-life movement's (wildly successful) legal strategy for the past few decades has been to find restrictions that sound 100% unobjectionable but which meaningfully restrict access to abortion in practice. Admitting privileges is the perfect example - who would oppose requiring doctors performing abortion to have the ability to get their patients admitted to hospitals if something goes wrong? What gets left out is that generally speaking abortion doctors can't in practice get admitting privileges in many areas (or if they can, it's extremely hard), so that these are de facto abortion bans in a lot of places.

So, do you poll "do you support requiring admitting privileges?" or do you poll "do you support effectively banning abortion?".

[Little Raven]

To pretend that they don't matter, and they don't help shape judicial decisions, is... naive?

I'm not pretending it doesn't matter. I'm accepting that, barring a fantastic misstep, Trump will get his 3rd pick. I'm also accepting that said pick is almost certainly going to be more conservative than I am. And if you give me the choice between a Scalia and a Thomas, I'm going to pick the Scalia every time. The Supreme Court is no place for second-raters.

You're absolutely correct about your analysis of how a judge's political beliefs can affect their rulings, which is why I was careful to use the word "partisan." I'm fairly convinced that both parties are going to go through a pretty extensive reorg in the next decade or so, and I have no idea how any of that is going to shake out. Who counts as a Democrat today may or may be a Democrat tomorrow. But an originalist is likely to stay an originalist.

[Dogstar]

And if you give me the choice between a Scalia and a Thomas, I'm going to pick the Scalia every time. The Supreme Court is no place for second-raters.

Agreed.

[Defiant]

[malchior]

Romney announces he is a go for voting on a SCOTUS pick. There are no good moderates. FWIW, I think this will be horrible long-term. The GOP is about to unleash an angry wave of progressive Democrats agitating for action.

[Defiant]

From what I've read, it sounds like all the Senators with the exception of Collins, Murkowski and possibly Romney are on board with confirming a new justice, although most of the Senators want to confirm in the lame duck period while Trump wants to confirm before the Election.

Edit: Well, this post aged poorly.

[Skinypupy]

Surprising on Romney, as I thought he might actually show a spine again. Oh well...

[malchior]

From what I've read, it sounds like all the Senators with the exception of Collins, Murkowski and possibly Romney are on board with confirming a new justice, although most of the Senators want to confirm in the lame duck period while Trump wants to confirm before the Election.

I'd point out that after the election would smash the legitimacy to pieces if Trump loses. But they don't care. They are twisted and evil.

Edit: Well, this post aged poorly.

It's funny how fast things can move when its their absolute power in play. The response to this versus the response to coronavirus sickens me.

Surprising on Romney, as I thought he might actually show a spine again. Oh well...

Zygotes over country.

Edit: Fuck.This.Guy. I had a little respect for him after the Trump impeachment vote but this is horse hockey. There isn't a good Republican.

[Scraper]

I wonder if this is enough to get all the Bernie Bros who didn't vote for Hilary to regret their decision and back Biden this time? Votes do matter and when you don't vote or vote for candidates who don't have a chance then bad things can happen.

[Defiant]

There's always the (very) remote possibility that Romney is doing this to pull a McCain "Fuck you" moment at the last minute. But I wouldn't count on it.

[Paingod]

There's little point in assuming any sort of good intent or moral fiber in the Republican Senate.

As for the mob of angry Democrats after the election correcting this misdeed, I don't count on that either. They're a bunch of wet fucking noodles who are too concerned with being nice and playing by the rules to effectively combat the GOP.

Could they stuff the court? Yup. Will they? Nope.

Could they try and impeach Kavanuagh? Yup. Will they? Nope.

Could they try and prosecute everyone in the current administration for various real crimes once Trump is out? Yup. Will they? Nope.

[malchior]

As for the mob of angry Democrats after the election correcting this misdeed, I don't count on that either. They're a bunch of wet fucking noodles who are too concerned with being nice and playing by the rules to effectively combat the GOP.

I agree and this has to be the wake up call. They are at the very least of enduring political malpractice. If this doesn't spur a change then what is the point. The country gets carved up by the extremely wealthy like Russia.

Could they stuff the court? Yup. Will they? Nope.

This won't solve the problem. It is just another escalation. They need to reform the Court.

Could they try and impeach Kavanuagh? Yup. Will they? Nope.

Impeach him for what? If they did that, that'd be a massive overcorrection.

Could they try and prosecute everyone in the current administration for various real crimes once Trump is out? Yup. Will they? Nope.

This is what I fear the 2nd most after the GOP just seizing power outright. If we don't address injustice and rampant law breaking in a prior administration...what hope do we have? Power unchecked and unaccountable has bad ends...reference our nationwide policing problem. In the end, every non-terrible path forward is extremely difficult. It doesn't mean it is impossible but it is unfortunately very improbable. Especially with a party that is ruthlessly abusing the system to consolidate power and the feckless weaklings who can't even get out a cogent message against it.

[Tao]

My speculation on Romney, beyond his feckless nature, is he has been given some incentive to fall in line and I believe that incentive is Amy Coney Barrett and the likely overturning of Roe Vs. Wade. While nothing is assured, smart money is on Alito, Thomas and Kavanaugh being willing to overturn, and a strong case could be made for Barrett falling in to the same category.

[malchior]

My speculation on Romney, beyond his feckless nature, is he has been given some incentive to fall in line and I believe that incentive is Amy Coney Barrett and the likely overturning of Roe Vs. Wade. While nothing is assured, smart money is on Alito, Thomas and Kavanaugh being willing to overturn, and a strong case could be made for Barrett falling in to the same category.

Without a doubt that is where he is. Barrett is on record saying she doesn't hold precedent as more important than originalist Constitution reading.

[El Guapo]

Has Schumer said anything about the possibility of court packing / SCOTUS reform? That's really the Democrats' best card here, and cramming through a Ginsburg replacement makes it a *lot* more likely politically (assuming that the Democrats take the presidency and the senate obviously). I've seen a lot of chatter on that on the Democratic side, but haven't heard anything from Schumer on that yet.

[RunningMn9]

Has Schumer said anything about the possibility of court packing / SCOTUS reform? That's really the Democrats' best card here, and cramming through a Ginsburg replacement makes it a *lot* more likely politically (assuming that the Democrats take the presidency and the senate obviously). I've seen a lot of chatter on that on the Democratic side, but haven't heard anything from Schumer on that yet.

It seems like such a fruitless endeavor, as the immediate Republican response will be to pack it again when they are in charge. What purpose does it serve to employ this strategy?

Focus all of your energy on making it harder for the GOP to ever control the Senate again.

[Smoove_B]

Focus all of your energy on making it harder for the GOP to ever be a relevant political party in the U.S. ever again.

Fixed that for you.

F Mitt Romney, F Susan Collins, f them all.

With every passing day I understand the destruction of the Great Sept of Baelor more and more. Every. Day.

[Kurth]

There's little point in assuming any sort of good intent or moral fiber in the Republican Senate.

As for the mob of angry Democrats after the election correcting this misdeed, I don't count on that either. They're a bunch of wet fucking noodles who are too concerned with being nice and playing by the rules to effectively combat the GOP.

Could they stuff the court? Yup. Will they? Nope.

Could they try and impeach Kavanuagh? Yup. Will they? Nope.

Could they try and prosecute everyone in the current administration for various real crimes once Trump is out? Yup. Will they? Nope.

Democrats won't -- and shouldn't -- do any of these things. None of these things have a basis in the law and/or would only further work to subvert norms and undermine our institutions.

Don't be fooled into thinking that Democrats are going to win by racing the GOP to the bottom. That's not a winning proposition.

Also, it's a little late now, but this Open Letter to Mitt Romney makes some really good points, including the philosophical dissonance of the current GOP position on filling RBG's seat:

This, however, raises a philosophical consideration. If a central conservative complaint about the federal judiciary is that it has arrogated too many powers that ought to be in the hands of the people, how can conservatives justify entrenching their power in the courts in the expectation that they’re unlikely to win at the polls? The Garland rule (or, if you prefer, the Biden rule) may have had no basis in the Constitution, but at least it was consonant with the populist drift in conservative thinking.

Now you have a Republican Party that seeks to advance its notions of judicial modesty and democratic accountability by the most immodest means imaginable, all in order to lock in conservative control over the least democratic branch of government. Wouldn’t the better Republican way be to try to win more elections with better candidates?

Unfortunately, it just goes to show that the GOP today has completely surrendered any pretense to trying to adhere to a consistent political philosophy. The Republican party is broken. Someone needs to fix it, or we are all toast.

[El Guapo]

Has Schumer said anything about the possibility of court packing / SCOTUS reform? That's really the Democrats' best card here, and cramming through a Ginsburg replacement makes it a *lot* more likely politically (assuming that the Democrats take the presidency and the senate obviously). I've seen a lot of chatter on that on the Democratic side, but haven't heard anything from Schumer on that yet.

It seems like such a fruitless endeavor, as the immediate Republican response will be to pack it again when they are in charge. What purpose does it serve to employ this strategy?

Focus all of your energy on making it harder for the GOP to ever control the Senate again.

Well, for one, ideally you pair the packing with a broader reform. Some plans were thrown around during the Democratic primary. One that I like is that you make it a 17 justice court with staggered 17 year terms.

Also, I don't love the idea of court packing either, but neither do I like the idea of 6-3 hard right majorities striking down 90% of what the Democratic Congress does on bonkers right wing theories. And by the time those bonkers right wing decisions come down, it may well be too late - given the strong right wing tilt of the Senate structure, Democrats can't count on controlling the Senate for more than 2 years.

ALSO - fixing the Senate is way harder. The Democrats can and should add DC and PR as states. But I'm not 100% sure whether PR is set to join (is statehood currently popular there? Does the current PR government support it? Does there need to be a new referendum?). Plus the constitutional arguments against the DC statehood plan are probably substantive enough for a 6-3 hard right court to declare it unconstitutional. AND even if you do get DC and PR admitted, that will reduce but definitely not eliminate the right wing Senate advantage, and going beyond that requires 'state packing' (e.g., dividing up California).

[malchior]

Don't worry Romney says it's fair because following the law itself is fair. Don't have a vote for Garland. That's fair because it isn't against the law to do so. Ram a justice in a tightly contested election. That's fair because it isn't against the law. They are ethically bankrupt. They just say words but the intent behind them is clear. They hunger for power no matter the consequences.

[El Guapo]

This is also the de facto end of the Senate ever confirming a SCOTUS justice nominated by a president of the opposite party.

[malchior]

This is also the de facto end of the Senate ever confirming a SCOTUS justice nominated by a president of the opposite party.

Let's be honest. Everything here on out is re-arranging the chairs on the titanic. We have a new form of government. It isn't clear what it is yet or when it happened but we don't have government by consent of the people. They can call it whatever they want but it is a sham.

[Jaymon]

If tRump wants his nomination to resonate with the American people, and attract new people to his platform, then his best choice would by Judge Judy. She is a judge, she is on TV, and she makes hard hitting decisions in convenient 10 minute segments and takes no guff from anybody. Exactly the kind of judge that tRump would look up to and respect.

[Carpet_pissr]

All that other stuff you said is irrelevant. What are her RATINGS?

[Alefroth]

There's always the (very) remote possibility that Romney is doing this to pull a McCain "Fuck you" moment at the last minute. But I wouldn't count on it.

That crossed my mind too, but it would ultimately be fruitless and I'm sure Romney knows that.

[Alefroth]

“My liberal friends have over many decades gotten very used to the idea of having a liberal court but that's not written in the stars,” the Utah Republican told reporters after this decision. He called it “appropriate for a nation that is … center-right to have a court which reflects center-right points of view.”

When did we become a center-right nation?

[Carpet_pissr]

When did we become a center-right nation?

https://news.gallup.com/poll/275792/re ... -2019.aspx

[Alefroth]

Okay then.

[LordMortis]

When did we become a center-right nation?

https://news.gallup.com/poll/275792/re ... -2019.aspx

From a sample size of one, I describe my views as conservative (with some very progressive outliers) and yet I consider the Supreme Court search beginning in March of 2016 to be first major crack in the foundation of our republic and might directly be responsible for the first utterance of "I cannot foresee a time when I ever vote for a member of the GOP again" by me. I had long become a democrat leaning libertarian conservative but that was the last straw. I was in a constant state wondering why Clinton wasn't hammering the Supreme Court the same way Trump was.

It's easy enough to imagine a democrat who could make me sit at home (the kid who distributed revenge porn as part of a blackmail, that would do it). It's hard to imagine someone under the GOP moniker that could convince me to vote for them. There is a tacit endorsement of the GOP that brought us to where we are today. In two or four or six or eight years from now, if they take up the mantle of "compassionate conservatism" again, they will still be the party created the DHS and ICE in 2001 and then spent two decades letting themselves move toward today, shedding everything I consider myself conservative leaning for. They abandoned me and you don't regain my trust lightly, once lost.

The loss of the Supreme Court to McConnell Trumpulbicanism is worse than I could have imagined in 2015.

[geezer]

That's just according to people that self-identify with a certain label, though. If you look at actual positions people hold, I don't think the characterization of "center right" holds up, unless you're twisting the definition of center right to include a majority that is pro-choice, that supports more liberal health care positions, etc.