Ruth Bader Ginsburg has passed (Replaced by Amy Coney Barrett)(Now Abortion Discussion) (1 Viewer)

[GrandAdmiral]

Ugh... breaking news I DID NOT want to see.

ETA: Reported on CNN.

 

[not2rich]

(Oh hi, first post.)

People are understandably concerned about Trump getting another Supreme Court nominee but I would estimate there is a 90% or higher chance the pick is confirmed. For some GOP Senators there's definitely gamesmanship involved as to whether it might help or hurt their election chances on abstaining prior to November 3. But ultimately, these are conservatives who -- despite their disdain for Trump -- want conservative judges. And assuming Collins, Gardner, and maybe others lose, there is nothing stopping them from confirming a conservative justice as they, themselves, have nothing to lose as lame duck Senators. One thing for certain is that this situation only serves to pour gasoline on the dumpster fire that is the 2020 election. I doubt Trump particularly cares about the courts or judicial philosophy other than to play up to his base. Amy Coney Barrett is almost a lock. A woman to replace a woman, under 50, and extremely religious. Maybe Joan Larsen if there is resistance to Barrett but I doubt there will be.

Should the Democrats win the White House and Senate, packing the Supreme Court is not the way to go. It only contributes to the downward spiral of our political system. The purpose of electing Biden is to pull back from the brink -- not plunge over it.

The precedent now being set is that SC nominees will only get confirmed if and only if the same party controls the WH and Senate. Maybe not pack the Court, but make D.C. a state, make Puerto Rico a state, divide California into separate states, and then the balance of power changes.

Should we be going in this direction? Absolutely not. But you're not going to win a fight playing honorably while the other side plays dirty.

 

[Richard]

In a vacuum, I have no problem with a president making a nomination at any point of their presidency. I also feel that absent a disqualifying situation, nominees should be confirmed. When Ginsberg was confirmed to the appeals court, I believe the vote was 96-3. Certainly not all 96 voting in favor of confirmation believed she held similar views to theirs. They determined she was well qualified for the position and she was confirmed. That is how it should work.

However, this is a different circumstance of McConnell’s own making. They made the case that eight months was too close to an election and therefore they should have to live with not confirming a justice less than two moths from this election.

That isn’t what is going to happen though. Trump will nominate someone this week, probably Barrett, and Graham will immediately schedule hearings. There will be chest beating by Democrats and they will highlight the hypocrisy of Republicans willing to go forward with a confirmation vote this time when they opposed even a hearing for Garland. It won’t matter. Democrats will have to console themselves that if Biden wins, there is a decent chance he will name two justices and maybe three. If Biden wins, the conservative super majority on the Court should be relatively short-lived and balance will once again be achieved. The republic will survive.

 

[LA - L.A.]

The Supreme Court works just fine. Your ire should be directed to the incompetent and corrupt House and Senate.

I don't have any intense anger. I don't know why anyone would get that impression from my post.

The Supreme Court has clearly been politicized by both our elected officials and our citizens. I don't consider that to be fine.

To make sure we are not talking about different things, please define what you mean by "the Supreme Court works just fine."

How specifically do you see it working, including the appointment process, that is fine? If the party roles had been reversed, going back to when McConnell and the Republican control senate filibustered all of Obama's federal judge appointments through today, would you still think it's working fine?

See, I don't. If:

1. Democrats blocked all of a Republican president's appointments
2. Then Republicans removed the filibuster to confirm those appointments anyway
3. Then Democrats refused to even have a confirmation hearing for a Republican president's Supreme Court nominee due to being 8 months from an election
4. Then Democrats removed the filibuster for Supreme Court confirmations to confirm a Democratic president's nomination
5. Then Democrats defied their own reasoning to confirm a Democratic president's Supreme Court nomination less than 2 months before an election

Then I'd still think there's a problem with how we appoint judges to federal courts that's allowing the judicial branch to be politicized.

I'm concerned because when the judicial system is politicized it makes it more vulnerable to ideological corruption toward the interests of one group at the expense of all others, which runs in direct opposition to its mission of equally balancing and protecting the interests of all.

 

[N.O.Bronco]

Couple of replies, and I fail at multi-quoting so I'll try to address stuff together.

The system of government we have is fundamentally broken. Washington's warnings of the dangers of factionalism have manifested themselves over the last decade or so. But considering we aren't going to change to a parliamentary system, any change has to be made in the system that exists. There is no way reasonable way to alter the mechanics of the federal judiciary short of Constitutional Amendment. The greatest injury to federal courts was the dispensing of the 60-vote requirement which at least somewhat insured some degree of moderation to judicial appointments.

You will get no argument from me that Mitch McConnell isn't a snake. He practically revels in it, himself. But he played the system and achieved his goal of stacking the judiciary. That cannot be undone. Democrats have to play the long (yes, even longer than a 50 year-old justice's remaining lifespan) game in convincing voters that their party offers solutions to their problems. This is something Hillary Clinton failed to do in 2016 and the resulting election of Trump significantly altered the course of the nation and the world. When you consider Trump barely won Michigan, Pennsylvania, and Wisconsin, it isn't too much of a stretch to posit that Bernie Sanders would have beaten him in those states.

The most 'radical' action the Democrats could take is to pursue statehood for Puerto Rico and D.C. There aren't many effective arguments against it other than Republican pragmatic concerns of never controlling the Senate again. It's laughable when you hear Tom Cotton try to distinguish why people in Arkansas or Montana should have Senate representation whereas people in D.C. or Puerto Rico should not. Anyway, you couple that with demographic trends of younger voters being more liberal, a rise in the Latino population, etc. and you have a path forward for a moderate to liberal country in the not-so-distant future.

Give moderate and independent voters good policy reasons to back the Democrats and the Senate and Presidential election victories will follow. That's not a great answer in that it doesn't result in a quick fix, but there really are no quick fixes here. At least none that wouldn't serve to further radicalize more people towards the right.

Some of your prescriptions I agree with, like pursuing statehood and other representative reforms.

However, much of the rest of your premises rests upon an assumption that free and fair elections are a constant and will remain so.

They are not, and they have been eroding for decades(arguably never being truly free and fair), and every election cycle that has put Republicans in power in the last 20-30 years has simply furthered that end. They have made it clear that when forced between defending democracy or defending their power, they choose power every time. And roughly 45% of the country will follow them wherever they go.

Democrats have spent 25 years trying to counter the onslaught of illiberal governance and strategy at the hand of Republicans and their institutions by attempting to court moderates and independents and properly signal their adherence to norms and decorum. Eschewing the left and attempting to craft every talking point and agenda item to attract the mythical moderate voter. The result has been Donald Trump and a country on the brink of losing representative democracy to illiberal manipulations, corrupted institutions and processes, and a radical court that through hook and crook is on the precipice of establishing a radical far right court with the power to overrule democratic decree for a generation.

And your prescription is to largely double down on the losing strategy and reward those illiberal strategies??? I know everyone has heard the old adage about the definition of insanity, but if someone hasn’t, it’s doing the same thing over and over and expecting a different result.

I mean what do you suggest should happen if Democrats gain a super majority(and for decades as you suggest) and every single piece of major legislation just gets ruled down by a Supreme Court that was established through a broken process that allowed a minority elected president decades earlier to short circuit and reign over with ideologues by way of improper and immoral procedure?

 

[LA - L.A.]

Democrats will have to console themselves that if Biden wins, there is a decent chance he will name two justices and maybe three. If Biden wins, the conservative super majority on the Court should be relatively short-lived and balance will once again be achieved. The republic will survive.

While I hope you are correct, I don't think those are reasonable assumptions.

First, any justice could resign or die at any time. Ginsberg served four years longer than people thought she would. People were taken by surprise by Scalia's death.

Second, even if Biden wins the election and has the opportunity to seat two justices, he'll would still be powerless to seat who he wants if McConnell continues to be the Senate majority leader. The only nominee that McConnell would allow a confirmation vote for is someone that he picks. And history has shown us repeatedly that none of the other Republican senators would go against McConnell. As you pointed out, we are most likely about to see that very same history repeat itself yet again.

 

[N.O.Bronco]

What 2-3 justices are Biden going to be replacing in the next four years?

Breyer? Because outside of him, a liberal, I don’t see any of the current conservative justices dying or retiring in the next 4 years.

Republicans essentially stole a Supreme Court seat, arguably two. The idea that we should just let it all stand because we need to maintain legitimacy of the court by way of essentially legitimizing an illegitimate process and immoral precedent/obstructionism is an oxymoron at that point.

That’s not even bringing up Kavanaugh, who was rushed through his nomination before a thorough investigation of credible allegations of criminality could be completed.

And Biden potentially having future appointments doesn’t change those facts.

 

[N.O.Bronco]

While I hope you are correct, I don't think those are reasonable assumptions.

First, any justice could resign or die at any time. Ginsberg served four years longer than people thought she would. People were taken by surprise by Scalia's death.

Second, even if Biden wins the election and has the opportunity to seat two justices, he'll would still be powerless to seat who he wants if McConnell continues to be the Senate majority leader. The only nominee that McConnell would allow a confirmation vote for is someone that he picks. And history has shown us repeatedly that none of the other Republican senators would go against McConnell. As you pointed out, we are most likely about to see that very same history repeat itself yet again.

It all comes back to the same issue, the Republican Party is no longer in the business of maintaining the rule of law, our institutions, or our democratic ideals. They are about maintaining power in an environment that is demographically working against them, and in what power they can maintain, ensuring the wealth transfer pipelines from the lower 90% to the 1% are maintained. But power comes first.

If McConnell loses in November and Republicans take back the Senate in 2022, and Breyer dies, McConnell will just say something like the people voted for his party and so either they get to decide the nominee or Biden can’t get a vote, or unless it is their perfect guy that their majority will support, they won’t allow a vote. We are at a point where the actions tell the story, norms and institutions are only maintained insomuch as they provide some utility, the moment they come into conflict with their desire for power, they are pushed aside and rationalized as they go. McConnell has inferred as much(and signaled much worse). And we gain nothing by compromising with, or legitimizing those actions and rhetoric.

 

[Richard]

While I agree that there is an argument to be made that one seat will have been filled by disreputable methods, the legitimacy of the Court is something to be fervently protected. The hyper-partisanship of the confirmation process needs to end.

Breyer will almost certainly retire in the next four years, but Clarence Thomas and Sam Alito have both recently been rumored to be considering retirement.

 

[coldseat]

So kind of like I've said the R's will do one they regain power.

They will do it regardless of what the Dems do. I always find it funny that people think dems should be moderate and respect traditional limits by not making power plays but are quite when Republicans do it so brazenly and repeatedly.

Personally. I'm just fed up. It's not about fairness, justice, process or anything else. All that matters is what you do with the power while you have it. If Republicans have taught me anything, it's that.

 

[N.O.Bronco]

While I agree that there is an argument to be made that one seat will have been filled by disreputable methods, the legitimacy of the Court is something to be fervently protected. The hyper-partisanship of the confirmation process needs to end.

Breyer will almost certainly retire in the next four years, but Clarence Thomas and Sam Alito have both recently been rumored to be considering retirement.

But it won’t end, and that illegitimate process will produce real harm. to real people. And unless the current Republican Party collapses and is forced to change, it is not going away. The last 48 hours prove that.

I don’t want to ascribe what you are saying about ideological conservatives retiring during a Democratic presidency and congress to magical thinking, but it does sidestep that this illiberal strategizing is not going away.

We know the game is being corrupted, we know the opposition team is breaking the rules habitually, we know the refs aren’t going to do anything, and we know if we lose people will suffer greatly. And, unfortunately, we know only the winner gets to rewrite the rules. This is the equivalent of Saints having their receivers get lit up before every pass with impunity and prescribing the team to just stay the course less they supposedly sacrifice the integrity of the game.

The number of justices was an arbitrary number simply fallen into. You won’t find it anywhere in the constitution. If Democrats want to make this situation whole it is going to take a radical rethinking to both undue the injustices committed prior, and ensure a pathway to legitimacy going forward. Pete Buttigieg’s proposal is actually amongst the most inventive and sensible

Which actually helps address an additional failing in our system. As we have grown to have the vehement partisanship and adversarial dynamic of a parliamentary system, without the pathway for majorities to act and effectively govern.

Under Buttigieg’s reform you have 10 justices, 5 selected amongst each of the dominate party, which would collectively vote on 5 more judges, and that 15 judge panel decides all cases.

The game needs new rules, not just pretending we can continue to play by the old ones while the other team habitually breaks them with impunity.

 

[superchuck500]

(Oh hi, first post.)

People are understandably concerned about Trump getting another Supreme Court nominee but I would estimate there is a 90% or higher chance the pick is confirmed. For some GOP Senators there's definitely gamesmanship involved as to whether it might help or hurt their election chances on abstaining prior to November 3. But ultimately, these are conservatives who -- despite their disdain for Trump -- want conservative judges. And assuming Collins, Gardner, and maybe others lose, there is nothing stopping them from confirming a conservative justice as they, themselves, have nothing to lose as lame duck Senators. One thing for certain is that this situation only serves to pour gasoline on the dumpster fire that is the 2020 election. I doubt Trump particularly cares about the courts or judicial philosophy other than to play up to his base. Amy Coney Barrett is almost a lock. A woman to replace a woman, under 50, and extremely religious. Maybe Joan Larsen if there is resistance to Barrett but I doubt there will be.

Should the Democrats win the White House and Senate, packing the Supreme Court is not the way to go. It only contributes to the downward spiral of our political system. The purpose of electing Biden is to pull back from the brink -- not plunge over it.

I think you're right that it's going to be Amy Coney Barrett. Beyond that, I don't see how any result could be as high as 90% right now, there are a few key variables still in play. The first is just the timing (both as a matter of the calendar and the other things going on, with both the election and the pandemic). Another is that the public response is still unknown and while it is unlikely to influence the course of events, it's not out of the question that if resistance is broad enough to pose truly significant political risk, it could matter.

And finally, we don't ever know how that small group of independently-minded Republican senators are going to vote. It's easy to think they're going to put some caveats out there but ultimately vote to confirm (whomever it is) - or that if it goes past the election and they're lame ducks, they're going to confirm because the risk isn't there anymore. But we just don't know and even since Kavanaugh, the appeal of a party led by Trump and Trump-style leadership shaping America to these independently minded senators may have deteriorated. It may not be lost on a few of them that a strongly-held conservative majority or a future of a newly packed court could each be destructive in its own way. It may at least give them enough conviction to get an election result before voting to confirm any nominee. Beyond that there are possibilities that don't necessarily point to confirmation.

To say that any result is 90% likely seems way too confident to me given all of this.

 

[Richard]

Again, I agree that McConnell and company have played fast and loose with the rules, but it is hardly unprecedented. The problem with Buttigieg's plan is that it has almost no chance of passage, whether it has merit or not. There has been no public outcry to change the number of justices and there is little incentive for most lawmakers for this issue to be the hill they want to die on. There has long been an ebb and flow to appointments to the Court as each member has been replaced and one "side" or the other has gained a philosophical advantage. The new Court will have a conservative lean to it, but justices take their responsibilities seriously and will sometimes surprise you and decide a case in unexpected ways. Roberts and Gorsuch have proven that recently. I suppose I just have a little more faith in the integrity of those on the Court to attempt to make decisions according to the law rather than politics.

 

[Richard]

On a different issue, Ginsburg's death could be a game changer in the outcome of some of the closer Senate elections. I have believed that the Republicans would hold onto the Senate narrowly by a likely one or two seat majority. However, the insertion of the SCOTUS seat into the final weeks of the election could be enough to swing some of the closer races and the signs would not be good for the GOP. The race in South Carolina, for example, had already tightened considerably with polls suggesting a virtual toss up. With the Democrats likely to bombard South Carolina voters with ads holding Graham accountable for his statements in 2016, I can see him losing that race. I had previously considered that seat safe.

The races in Montana, Colorado, Iowa, North Carolina and other close Senate races could see a similar shift and it wouldn't take more than a couple of percentage points of movement to put those seats in the hands of the Democrats. Add those to Kelly's likely win in Arizona and Collins' almost sure defeat in Maine and it no longer looks as certain that the GOP can retain control.

 

[superchuck500]

Again, I agree that McConnell and company have played fast and loose with the rules, but it is hardly unprecedented. The problem with Buttigieg's plan is that it has almost no chance of passage, whether it has merit or not. There has been no public outcry to change the number of justices and there is little incentive for most lawmakers for this issue to be the hill they want to die on. There has long been an ebb and flow to appointments to the Court as each member has been replaced and one "side" or the other has gained a philosophical advantage. The new Court will have a conservative lean to it, but justices take their responsibilities seriously and will sometimes surprise you and decide a case in unexpected ways. Roberts and Gorsuch have proven that recently. I suppose I just have a little more faith in the integrity of those on the Court to attempt to make decisions according to the law rather than politics.

Agree - and that’s why no matter who the president is or what the supposed top line persuasions of the nominee are, the senate has to do its job of continuing to demand jurists of the highest order and intellect get confirmed to the Court. Sure they’re not batting 1.000 but for the most part, the justices are so strong at the law and so intelligent that they simply are not going to be purely political actors. People will always try to see it that way but I don’t think it’s true.

 

[SaulGoodmanEsq]

Wherein I succeed at multi-quoting...

The precedent now being set is that SC nominees will only get confirmed if and only if the same party controls the WH and Senate.

Yes, and this is definitely a dangerous path McConnell has put us on. Which is why I'm all for the measured response of P.R./D.C. statehood. Extending statehood has been something that has been kicked around for quite awhile and is an easier 'sell' to Democrats who would otherwise be averse to tinkering with the judiciary itself.

And your prescription is to largely double down on the losing strategy and reward those illiberal strategies??? I know everyone has heard the old adage about the definition of insanity, but if someone hasn’t, it’s doing the same thing over and over and expecting a different result.

***

I mean what do you suggest should happen if Democrats gain a super majority(and for decades as you suggest) and every single piece of major legislation just gets ruled down by a Supreme Court that was established through a broken process that allowed a minority elected president decades earlier to short circuit and reign over with ideologues by way of improper and immoral procedure?

I lean left of center on many social issues but I don't think a majority of the country is at the same place. However, there are certain issues like universal healthcare and reinvesting in American manufacturing that are popular ideas regardless of one's opinion on social issues. The Democrat establishment has its own fair share of corruption but I don't think it will get very far pushing a more left of center agenda. Sanders would have made an effective candidate in 2016 because the tone was anti-establishment/working-class uprising. This cycle the commie/radical leftist attacks would hurt Sanders quite a bit and, although I preferred Sanders to Biden, I think Biden is the better fit given the atmosphere in 2020.

I don't see a Court led by Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett striking down every piece of Democrat legislation that comes down the pipes. Yes, there might be a few, but overall -- aside from Barrett who I think is a total zealot (Kavanaugh is more arrogant than a zealot) -- the rest are fairly principled and believe in the concept of deference to the legislature. It certainly won't be easy, but not wholly obstructionist.

To say that any result is 90% likely seems way too confident to me given all of this.

I'm probably overselling that although it's more of a 'don't build up anxiety trying to count heads to see who will stand in Trump and McConnell's way.' I will say I was a bit surprised to see the Lincoln Project come out and say no one should be nominated.

With the Democrats likely to bombard South Carolina voters with ads holding Graham accountable for his statements in 2016, I can see him losing that race. I had previously considered that seat safe.

While it would be nice to see Lindsey Graham go down in flames (no pun intended) given his complete lack of integrity; I still see that as a bit of a longshot. It is still very impressive that Harrison has managed to make the election so close if the polls are anywhere near accurate. But I don't see Trump losing South Carolina and I can't imagine too many voters ticket splitting and voting for Trump but then voting for Harrison.

 

[LA - L.A.]

Again, I agree that McConnell and company have played fast and loose with the rules, but it is hardly unprecedented. The problem with Buttigieg's plan is that it has almost no chance of passage, whether it has merit or not. There has been no public outcry to change the number of justices and there is little incentive for most lawmakers for this issue to be the hill they want to die on. There has long been an ebb and flow to appointments to the Court as each member has been replaced and one "side" or the other has gained a philosophical advantage. The new Court will have a conservative lean to it, but justices take their responsibilities seriously and will sometimes surprise you and decide a case in unexpected ways. Roberts and Gorsuch have proven that recently. I suppose I just have a little more faith in the integrity of those on the Court to attempt to make decisions according to the law rather than politics.

The problem for me is that the integrity of the system and the people that put justices on the Supreme Court are ultimately going to be expressed in the integrity of the justices that get put on the Supreme Court. Unethical people and unethical procedures inevitably end with appointing unethical people to positions of power, like the Supreme Court. The integrity of the appointing people and procedure is inseparable from the integrity of the people they appoint. People of low integrity and ethics do not make a habit of putting people of high ethics and integrity in charge of anything.

If it doesn't matter much who gets put on the Supreme Court, because they are people of integrity who follow the actual law, then why would McConnell do all of this? If there really isn't much of a difference between how these justices of integrity rule on the law, why put so much effort and manipulation into making sure McConnell gets the justices he wants? Why is he so highly motivated to get the justices he wants? Apparently to him there's a really big difference between justices and it's a really big deal.

Supreme Court justices are people and like all people, they are all fallible. History is checkered with questionable Supreme Court justices. We don't talk about them, we only talk about the great one's which gives us the false impression that a person rising to the level of the Supreme Court guarantees they are of high integrity and just minded. History says otherwise. Though the majority of them have been of high ethics and integrity, some have not.

If we don't reform the way we appoint people to the Supreme Court and how long they serve once they get there, the Supreme Court it is going to end up as dysfunctional as Congress and the Executive branch. We need reforms to fix both of those as well.

Staying the course will only serve to keep us on the course we are currently which is straight into an iceberg, and to be satirically hyperbolic, that iceberg is packed with explosives and in shark infested waters.

 

[BobE]

On a different issue, Ginsburg's death could be a game changer in the outcome of some of the closer Senate elections. I have believed that the Republicans would hold onto the Senate narrowly by a likely one or two seat majority. However, the insertion of the SCOTUS seat into the final weeks of the election could be enough to swing some of the closer races and the signs would not be good for the GOP. The race in South Carolina, for example, had already tightened considerably with polls suggesting a virtual toss up. With the Democrats likely to bombard South Carolina voters with ads holding Graham accountable for his statements in 2016, I can see him losing that race. I had previously considered that seat safe.

The races in Montana, Colorado, Iowa, North Carolina and other close Senate races could see a similar shift and it wouldn't take more than a couple of percentage points of movement to put those seats in the hands of the Democrats. Add those to Kelly's likely win in Arizona and Collins' almost sure defeat in Maine and it no longer looks as certain that the GOP can retain control.

I feel like some one told you recently that it would not be a shock at all if the R's lost control of the Senate.

 

[efil4]

Wherein I succeed at multi-quoting...



Yes, and this is definitely a dangerous path McConnell has put us on. Which is why I'm all for the measured response of P.R./D.C. statehood. Extending statehood has been something that has been kicked around for quite awhile and is an easier 'sell' to Democrats who would otherwise be averse to tinkering with the judiciary itself.



I lean left of center on many social issues but I don't think a majority of the country is at the same place. However, there are certain issues like universal healthcare and reinvesting in American manufacturing that are popular ideas regardless of one's opinion on social issues. The Democrat establishment has its own fair share of corruption but I don't think it will get very far pushing a more left of center agenda. Sanders would have made an effective candidate in 2016 because the tone was anti-establishment/working-class uprising. This cycle the commie/radical leftist attacks would hurt Sanders quite a bit and, although I preferred Sanders to Biden, I think Biden is the better fit given the atmosphere in 2020.

I don't see a Court led by Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett striking down every piece of Democrat legislation that comes down the pipes. Yes, there might be a few, but overall -- aside from Barrett who I think is a total zealot (Kavanaugh is more arrogant than a zealot) -- the rest are fairly principled and believe in the concept of deference to the legislature. It certainly won't be easy, but not wholly obstructionist.



I'm probably overselling that although it's more of a 'don't build up anxiety trying to count heads to see who will stand in Trump and McConnell's way.' I will say I was a bit surprised to see the Lincoln Project come out and say no one should be nominated.



While it would be nice to see Lindsey Graham go down in flames (no pun intended) given his complete lack of integrity; I still see that as a bit of a longshot. It is still very impressive that Harrison has managed to make the election so close if the polls are anywhere near accurate. But I don't see Trump losing South Carolina and I can't imagine too many voters ticket splitting and voting for Trump but then voting for Harrison.

In regards to Lindsey, let's see how much traction this gets in South Carolina.
This just 4 years ago after refusing to hear nomination in Obamas last 8 months. We are 50 days from election.


If he comes out in favor of nominating and confirming, his hipocrisy will be laid bare.