Anthony Kennedy to Retire From SCOTUS

Anthony Kennedy to Retire From SCOTUS

Supreme Court Justice Anthony Kennedy has announced his retirement. His pending vacancy will be the 2nd appointment by President Trump.

CNN

Kennedy, always the subject of intense retirement rumors (none was announced from the bench Wednesday morning), shuffled right and never sided with liberals in the major 5-4 cases that split down familiar ideological lines.

This term, Kennedy voted with his conservative colleagues in cases concerning issues such as the travel ban, religious liberty, voting rights, arbitration agreements, corporate liability and public sector unions.
“Although there were 19 5-4 decisions, none of those saw Justice Anthony Kennedy siding with the four more progressive justices — as he has done so often in high-profile cases in recent years, such as the gay marriage ruling in 2015,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

But conservatives haven’t forgotten that Kennedy cleared the way for same-sex marriage in 2015,and he voted with the liberals in 2016 in an abortion case and one concerning affirmative action.

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178 thoughts on “Anthony Kennedy to Retire From SCOTUS

    • Democratic politicians are going to legitimately and justifiably want to challenge any person Trump selects to replace Kennedy. Saul is right in that its going to go to HYS grad in his or her forties and fifties with the right views according to the Republican. Still, the Democratic Party has a right to be legitimately angry because of what McConnell did to Gorsuch. People in their base like me are also going to be pressing for a fight.

      If you agree with American Far Right thought, your happy because your going to get the return of the Lochner era court. Even if the Democratic party wins elections, every they pass now as a chance of getting knocked down as un-Constitutional because the Right hates it. If your more liberal than the average Republican politician its going to be hard.

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      • Even if the Democratic party wins elections, every they pass now as a chance of getting knocked down as un-Constitutional because the Right hates it.

        What is the basis of this claim? In recent memory, a couple of pieces of major progressive legislation have come in front of the Roberts Court and they haven’t exactly been “knocked down.” The Roberts Court spared the ACA and made a very narrow ruling on the VRA. A lot of this sounds a bit histrionic.

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        • The Roberts Court did not spare the ACA; they badly damaged the Medicaid expansion provision in ways that screwed up big chunks of the system and ended up making it much less effective for a lot of the people who stood to benefit the most.

          And they did so for no terribly compelling reason that I see; it’s not like analogous things hadn’t been done for ages with federal highway funds and the like.

          As for the VRA, for all the “narrowness” of the ruling, the actual impact has been substantial (enabling a lot of state-level disenfranchisement efforts) and, if anything, the underlying logic was even more glaringly absent than it was in the case of Medicaid expansion.

          We don’t necessarily have to relitigate the VRA part, but it would be nice if you could maybe try to see it from the Left’s perspective, too.

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          • We don’t necessarily have to relitigate the VRA part, but it would be nice if you could maybe try to see it from the Left’s perspective, too.

            I honestly don’t know what that means. My whole point in that VRA discussion was that I don’t necessarily agree with the majority in Shelby County, but that it was perfectly in keeping with conservative legal principles and not some blatantly partisan political move. I don’t like the ACA, but the court was well within its purview to rule as it did. It is exactly because I see both sides that I don’t get histrionic about these things.

            More importantly, said something. He used actual words, “every[thing?] they pass now [h]as a chance of getting knocked down as un-Constitutional because the Right hates it.” That statement is simply not in accordance with the reality of recent court rulings. Maybe you feel differently, but that just goes to prove my point about how relying on your feelings

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            • The idea that there’s a clear distinction between being “perfectly in keeping with conservative legal principles” and being a “blatantly partisan political move” strikes me as incredibly dubious. Like, we aren’t even talking about broadly acknowledged legal principles, but specifically conservative ones.

              Beyond that, I maintain my contention that other conservative legal principles (deferring to the political branches, and being most deferential within the realm of their explicitly enumerated powers) would have justified the opposite decision. And there was really no way at all for the Congress of 2007 to know that John Roberts would serve up his weak “equal sovereignty” sauce five years down the line.

              And while you don’t have to like the ACA, the Medicaid expansion thing was, again, weird and out of nowhere, and there was no way I can think of for the Dems in Congress to know ahead of time that what they were doing was out of bounds.

              So that unpredictability, and the not-overwhelmingly-compelling nature of the Roberts Courts reasoning, does everything necessary to back up what said.

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              • The idea that there’s a clear distinction between being “perfectly in keeping with conservative legal principles” and being a “blatantly partisan political move” strikes me as incredibly dubious.

                That’s kind of the point. You’ve basically decided that the Roberts court is partisan in some unique way, because you disagree with their decisions. And that’s your prerogative. But it’s likely that you will continue to be frustrated that Republicans exist, that they hold different opinions than yours, and that they often end up winning.

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                • Better to be frustrated than falsely believe that the Republican Party doesn’t believe that the Court is a tool for partisan politics and that John Roberts wasn’t absolutely full of it when he told the Senate it was just about “balls and strikes”.

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                  • The NYT had a complex way to evaluating the entire history of the court and decided that only a truly out of mainstream court could gut Obamacare. What a shock. There was a lot of social pressure put on the Supremes at the time of that article to not destroy Obamacare.

                    I remember a different article by the WSJ which just looked at the voting records of the individual justices and decided the Liberal 4 were FAR more likely to vote in lock step than any other group, i.e. that the Conservatives were more open minded.

                    I was more impressed by the math of that later approach because I understood it a lot better.

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                      • True, but both remind me a lot of the whole “Liberals/Conservatives are smarter/dumber” that shows up every now and then.

                        The author of the study finds what he is looking for. These studies say more about the author than the subject(s).

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                      • I’m not sure that you understood the original question, which was not whether the Roberts court is ideologically conservative or not. Yes, they are. So, what?

                        The question was whether they were blatantly partisan in a way that could not be explained by consistent principles.

                        Also, calling something “clearly” true because some academics have a paper and a methodology on it is a very low bar.

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              • And while you don’t have to like the ACA, the Medicaid expansion thing was, again, weird and out of nowhere, and there was no way I can think of for the Dems in Congress to know ahead of time that what they were doing was out of bounds.

                Not weird at all. It’s the anti-commandeering doctrine and it’s constitutionally sound whether you care to admit it or not

                Thank goodness we have it. Could you see the current administration requiring state law enforcement officials to carry out federal immigration law and claim constitutionally authority to do so?

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        • The Roberts Court has tended to rule in a very conservative way on many issues in a 5-4 manner when these issues appeared before them. Today’s ruling on public sector unions is a good example of this. So is Shelby County and how the medicaid expansion was watered-down. Just fish whatever the Republicans are doing. They demand fairer treatment than they are willing to give. They deserve no benefit of the doubt whatsoever.

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          • They demand fairer treatment than they are willing to give.

            They don’t need fairer treatment. They’re winning.

            And they’re winning because a large segment of their opposition are stuck in their feelings.

            ps – I am a fairly right of center guy, but I take no pleasure in watching this version of the Republican party run up the score. I want there to be a more competent opposition.

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            • I think the issue of “partisanship” is moot and needs to be forgotten.

              The courts can only be nonpartisan when there exists some ground, some territory of logic that both sides can view as nonpartisan.

              In such a highly divided era like this, that ground doesn’t exist. No matter what logic the court holds or doesn’t, there isn’t any way the two sides will agree on it being nonpartisan.

              Yes, the court is a tool of politics. Lets accept that and deal with it accordingly.

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              • If this is true then I am, frankly, much less interested in its doings. The whole point of the court, its majesty and power and credibility and legitimacy, comes from its being able to act on a plane above the day-to-day political hullaballoo.

                Now, it’s never been completely thus; I’m not that naïve. But at points in our history, it’s been mostly thus.

                When we see the Courts as functioning apolitically, when they are not viewed as partisan instruments and staffed by partisan actors, we can respect the law generally even if we don’t like a particular law. When the Courts are simply another way for politicians to project their power forward in time, it tempts me to wonder about becoming a Canadian.

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                • Many decisions might be decided on a unanimous or near unanimous basis but almost all of them have clear advocates with partisan agendas. Janus could have been decided 7-2 and it would have been a partisan decision because it was advanced by partisans with a goal.

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              • The courts can only be nonpartisan when there exists some ground, some territory of logic that both sides can view as nonpartisan.

                In such a highly divided era like this, that ground doesn’t exist. No matter what logic the court holds or doesn’t, there isn’t any way the two sides will agree on it being nonpartisan.

                Sure there is. The people who win elections are the ones who hold elective office. That used to be fairly non-controversial, with luck it will be that way again.

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            • And they’re winning because a large segment of their opposition are stuck in their feelings.

              Yeah I mean the party of Donald Trump has never once let its feelings get the better of it.

              Come on.

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              • To oversimplify to a binary and Star-Warsian view, and meaning no aspersions on any one here:

                If one political party appears to have given in wholly (or so close to that it doesn’t matter) to the Dark Side, the way for the other side to win is to not give in to the Dark Side any more than humanly possible. They have to become *better* in response, not worse. If the other side does give in halfway, they will lose because they have neither the callous and unrestrained power of the Dark Side, nor the grace and ability to work miracles of the Light Side.

                This is very different than a situation where both sides are a fairly thorough amd even mix of Dark and Light, where who wins or doesn’t doesn’t have to do with who holds on to standards better.

                Pointing this out, albeit that did it in a more nuanced and pessimistic and nonbinary fashion than I just did, does not constitute blaming the party that stays mixed instead of improving in response to worsening, nor does it constitute siding with the party that’s slid totally into the Dark Side.

                It’s just a perception with a hint of prediction to it.

                It may be mistaken, but it’s analysis, not an expressed preference.

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                • This sounds like a sort of cargo cult of civility, where if the party that hasn’t given into the worst impulses keeps its’ collective head high and keeps acting with the force of traditional norms than the out of control party will have their fever broken and calm back to normal. Maybe all the need is a cool down hug.

                  I’m not buying it. The Republicans have become a revolutionary vanguard party. They are so utterly convinced of their righteousness that they act like they can do whatever they want. Decades or centuries old governing norms thrown away for one Supreme Court seat or any goal. It doesn’t matter to them.

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                  • Republicans aren’t the ones who opened up with 7.62×39 at a GOP baseball game in an attempt to kill as many Congressmen as possible. A Democrat did that, and then Democrats buried the story, and there’s no sign of them stopping. If continued, it will end badly with millions of deaths.

                    They really need to get out of their bubble, read some history, read some law, and put down the hate bong.

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                    • Democrats didn’t bury the story. There are literally hundreds of news articles about it from major sources (of all political persuasions) freely available online as we speak. The first dozen I looked at, including the wikipedia entry, talked about it in terms of the shooter’s animosity toward Republicans. That’s not “buried”.

                      I told you this afternoon that if you didn’t rein in your desires to spin off from one disturbing story to exaggerated untruths with violent overtones, you’d be suspended for longer than last time.

                      I know that’s something you struggle with for medical reasons, as you have told me in the past, so I hate to do this, but also I have to stick to what I say unless I have overwhelming reasons not to.

                      You can come back in 2 weeks, because last time it was one week.

                      Please don’t try to break the suspension through false aliases, that usually increases the severity.

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                    • I’ve seen Star Wars, I’m not entirely buying it as an analogy. My theory is that the Republicans have turned themselves into a Far Right Revolutionary Vanguard party as stated above. They and their electorate have spent decades convincing themselves that only understand what it means to be American and that the Democratic Party and its’ voters are nothing but traders.

                      Liberal democracies aren’t really that good with dealing with revolutionary vanguards and illiberal people. Small l-liberalism doesn’t allow for liberals to suppress the rights of the illiberal factions without making a mockery of liberalism. Illiberal people do not have the same constraints, especially if they see themselves as a revolutionary vanguard. They can chip and strike away with impunity. Its problem with no good or easy solution.

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                  • I’m not buying it. The Republicans have become a revolutionary vanguard party. They are so utterly convinced of their righteousness that they act like they can do whatever they want. Decades or centuries old governing norms thrown away for one Supreme Court seat or any goal. It doesn’t matter to them.

                    This “governing norm” was always going to end the moment either party was in this situation. Biden explained that with the situation reversed 25 years ago. That’s why the Garland move was called “The Biden Rule”.

                    Both sides explain why the other is especially nasty. Both sides are right… and wrong. A lot of this bitterness hits the radar as created because we mostly don’t have large divisions and various groups need to stir up conflict to justify their existence.

                    The Dems are depressed at the moment because their team has had an especially bad two years… but that’s after a very successful several decades. Playing defense sucks, so the other team must be cheating. Also the other team is nasty people so they’ll set up internment camps(*1) for American citizens and go full hitler if they stay in power, our side winning is important. The absolute worst outcome is for people to realize that Trump and the GOP are nowhere near as bad as advertised and we’re stuck with them for multiple terms.

                    (*1) What’s actually on the table is some Cakes not being made in rare situations by specific bakers if his/their bigotry outweighs his business sense.

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                • I disagree with this analysis.

                  I don’t think a “Light Side” party is actually possible due to the nature of political coalitions, especially given US political institutions which so strongly favor having two parties. I’m also not sure such a thing would be desirable; people should be trying to get their party to act in their selfish interests.

                  So I want a party that can retaliate effectively against the GOP for its repeated, escalating, and profitable norm breaking. Otherwise we’ll just have one party that endlessly gets rewarded with the payoff for defecting in this game of Prisoner’s Dilemma we’re locked into, and there are non-linearities that will increasingly cement the power of the Right (through voter suppression, gerrymandering, and criminalization of activism).

                  And really, the Dems are constantly shying away from anything that even looks retaliatory, and it has material costs.[1]

                  So my persistent fear is that Dems won’t be and stay made enough, and our leadership will fold in the face of even modest resistance again, and the broad left will be discouraged and stay home and it will just get that much work.

                  I just don’t think we live in a world where Dems are likely to become to evil and consumed by rage. Too many of us (and I definitely include me in this “us”) are technocratic milquetoasty totebagger types who want to just all get along.

                  But that’s fine. Analyses are wrong all the time.

                  The problem is that we (as in Dems or liberals) are routinely actually blamed for the rise of Trump for, well, doing literally anything that might have made anyone on the Right less than perfectly delighted. And it can be really difficult, and more than a bit frustrating, to have to disambiguate between well-meaning advice or good-faith observations, and blame-deflecting for the benefit of a right-of-center in-group.

                  Outside of this comment section there’s a whole cottage industry devoted to doing just that.

                  [1] We ended ressponed to GWB’s torture regime with Obama’s, “We tortured some folks,” shrug and now Gina Haspel is director of the CIA. I’m not looking forward to the next Republican President making Stephen Miller Secretary of State or something.

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                  • “light side” doesn’t mean we don’t fight.

                    It means we fight as clean as we can (which doesn’t mean “not playing politics”) and as *clear-mindedly* as we can. Rather than letting our fear, hatred, etc., rule us.

                    That said, I said at the outset the analogy was oversimplified and overbinary – I was just disagreeing, first, with your implied suggestion that what’s good for the goose is equally good for the gander, and secondly Lee’s assumption that I was talking about a cargo cult of civility.

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                  • “people should be trying to get their party to act in their selfish interests”

                    I think that’s a big divide in politics. The average person on the left is much more likely to think of politics in terms of competing selfish interests. The average person on the right is more likely to think of politics in terms of doing what is best for the country. Not all, mind you, and I’d say the difference between the parties is a lot less than I would have thought two years ago. And interestingly, the right-leaning person is more likely to think of economics in terms of competing selfish interests, where the leftward-leaner is more likely to envision (or want) the economy to be a collective machine working for the benefit of all.

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                    • The average person on the right is more likely to think of politics in terms of doing what is best for the country.

                      I don’t think that most Trumpists even believe this about themselves.

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                      • I mean I know I’m always falling all over myself to defend people who voted for Trump but…

                        :grits teeths:

                        …quite a few of the people who voted for him and basically go along with him…

                        (am i really saying this what is happening)

                        …did it because they wanted Supreme Court picks that would allow them to outlaw or heavily restrict abortion. This is a position I believe is extremely misguided and, well, completely wrong, but is not an expression of naked self-interest.

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                        • Yes, I know people like that.

                          Trumpists aren’t motivated by a desire to make life better for America, if that means the Americans who actually live here.
                          They aren’t motivated by naked self interest either.

                          They are motivated by fear and loathing of various things like modernity, brown people, powerful women, and gays.
                          Given that the Venn diagram of people who oppose abortion and contraception (AKA “best possible prevention for abortion”) is an almost perfect circle, I don’t mark them down as “positive”. It’s a negative desire to punish WrongSex.

                          This shouldn’t be in dispute. Since the day he announced, his entire campaign up to and including his latest rally, has been one long primal scream of rage, listing of grievances, and demands for punishment of evildoers.

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                          • Chip – You say this a lot. I think you’re wildly wrong, and I occasionally comment to that effect. I realize you see a set of evidence and interpret it completely differently than I do. I doubt I’d ever be able to persuade you to my position. But I wanted to comment about something else.

                            “Given that the Venn diagram of people who oppose abortion and contraception (AKA ‘best possible prevention for abortion’) is an almost perfect circle…”

                            That statement is profoundly, statistically wrong. I would speculate that 20% of the people who oppose abortion also oppose birth control. Mostly orthodox Catholics in that group. Another 20-40% believe that pre-marital sex is wrong or at least pretty risky and would oppose schools handing out condoms. They’re more likely to be conservative, so they probably oppose the contraception mandate in our health care system. The remainder – who I think are plurality or outright majority – see no problem with contraception.

                            Actually, if we’re talking about people who want to limit abortions in certain cases, they’d dwarf the other groups I just listed.

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                    • I dunno. Two common themes I’ve had come up in conversations with conservatives is voting Republican to protect their gun rights and voting to have keep their taxes low. And plenty of lefties are concerned about what they see as justice benefiting and protecting other people.

                      Neither approach is right or wrong per se; I think a healthy political party (or personal politics, for that matter) will have a mix of both.

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                    • I agree with both of you that the Trumpers represent a slide away from the e pluribus unum mentality of the right. My biggest fear, that the right would adopt identity politics, is playing out a little. Still, I don’t hear Pillsy’s kind of statement that merges power and selfishness from Republicans too often. I don’t hear many righties saying that Kennedy’s replacement will be good for them or their class/race/sex. I hear them saying he’ll be good for the rule of law. Dems are so fixated on controlling outcome that they can only view SCOTUS rulings in terms of which of their pet groups does it help or hurt.

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                      • If you see Republicans’ concern for others as for the good of the country, and Democrats’ concern for others as “which of their pet groups does it help or hurt,” you are going to identify *very similar people* as *very very different*. It’s also kind of strange to see you saying in one comment that you realize there’s much less difference than you had previously thought, and more of both kinds of people in each party, and then two comments later going to “Dems are so fixated…” and making a sweeping generalization.

                        Personally I wasn’t going for self-interested vs. non-self-interested when i was talking about Dark and Light at all(1), I was specifically talking about acting out of fear and hatred and similar but less loud versions of same, rather than from a centered and peaceful place within oneself that is open to others as well.

                        (1) I think people are best off being both self-interested and non-self-interested in balance. Of course, I’ve thought that since I was like 7 and most people seem to think I’m nuts when I say it out loud in this country lately, so probably it’s not necessarily the best most useful strategy to keep hammering at it.

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                        • Consider two statements:

                          “My party should act with my interests in mind.”
                          “My party should act with the country in mind.”

                          I think a slim number of Democrats would agree with the second. I used to think a sizable majority of Republicans would agree with the first, but with Trump winning the party’s nomination I have to reconsider.

                          Now, a couple of caveats. On environmentalism and probably other issues, I think the generic Democrat is going to think in terms of national interest. I also think the generic Dem sees competing interest groups as what’s best for the country, if he thought about it.

                          ETA: As for my sweeping statement about Dems, I assume you’re referring to this:

                          “Dems are so fixated on controlling outcome that they can only view SCOTUS rulings in terms of which of their pet groups does it help or hurt.”

                          It’s been remarkable over the month-ish how every comment from the left has been about the Court as a conservative weapon acting in whitecismale interests. I haven’t seen any discussion of the points of law, and I’m not hearing it with regard to the new vacancy.

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                          • I think a slim number of Democrats would agree with the second

                            I’ll admit that Dems are less likely [1] to focus on the country, that’s because they’re less nationalist, not more focused on self-interest. So they’re more likely to focus on what they see as the global good rather than the national good.

                            Of course, focusing on the well-being of marginalized groups isn’t self-interested per se. If you think equal rights for LGBT people should be a major priority for the Democratic Party (most Democrats do) and aren’t LGBT yourself (most Democrats aren’t), “self-interest” doesn’t seem to be what’s at play.

                            [1] Though not “slim number” less likely, which looks like a huge overstatement.

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                          • I think a slim number of Democrats would agree with the second.

                            And… You would be very, very wrong. I think mostly this boils down to differing perceptions of reality and what is or is not “good for the country.”

                            If you favor policy X and I disagree, is my disagreement because I don’t want what’s good for the country? Or is it because I disagree with your belief that X actually IS good for the country?

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                            • I think that intersectionality and demographic manifest destiny has changed the way the left thinks about issues over the last decade. I’m sure that, if questioned, they’d say that everything they’re doing is for the good of the country, but it’s becoming an afterthought. It’s all about protecting the coalition of 50%+1.

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                          • Considering the amount of self-enrichment that goes on during Republican administrations, saying that Republicans are acting with the best interests of the country in mind is hilarious. I’m not going to even get into how they treat marginalized groups or the unnecessary foreign adventures they like to get themselves into. Many Trump voters also seemed to specifically act with their interests in mind, specifically the ones relating to the anti-immigrant backlash and the economy.

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      • I second what jr said. I really don’t like what happened with Garland/Gorsuch and see it as yet another blow against constitutional norms but I don’t see the Roberts court as having been particularly activist. Heller and McDonald are the only cases I can think of that really changed long standing constitutional precedent in a conservative direction. I guess you could ask how Obergefell would’ve gone without Kennedy’s swing but by the time that happened gay marriage was already legal in the majority of the country.

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        • Shelby County was absolutely terrible and pointless and much worse than Heller both in substance and in terms of enraging the Left.

          I dunno about CItizens United in terms of a shift of precedent, but also really enraged the Left. Unlike Shelby County (but like Heller) I think the majority position was at least pretty defensible and may actually be correct, so it doesn’t piss me off too much personally, but it really is not something the Left is happy about.

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        • I firmly disagree. The Roberts court just dealt potentially long term blows to Democratic voting groups with their gerrymandering and voter ID cases. They also dealt unions a huge blow. These were all highly partisan 5-4 decisions. Alex Pareene can crone all he wants about milquetoast Garland but these 5-4 decisions would have gone the other way with Garland was on the court almost certainly.

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          • If the majority in a 5-4 decision is “highly partisan,” then by definition the dissent is “highly partisan” as well. So what?

            If you want to complain about certain things that Trump has done/is doing, then I’m right there with you. Trump’s candidacy and presidency have been fairly destructive of a number of political norms that we would be better off preserving.

            But complaining about Supreme Court decisions doesn’t fall into that category. You’re basically complaining that your preferred side is losing.

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            • No, we’re complaining that we can’t trust that the Supreme Court will allow us to undo any of the horrible things Trump is doing because they’re unreliably partisan.

              This would be a bitter enough pill to swallow with President Rubio, but the damage we would be facing with President Rubio would be within normal parameters. But now we’re facing damage well beyond that because not only is Trump exceptionally bad, but Republicans in the other branches of government are pretty much treating him like he’s just President Rubio, and there’s no particular reason to believe they’ll stop once he’s out of office and Dems hold power again.

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            • Its not that I don’t disagree with you , but it makes me wonder how solid the foundation of those norms really is/was. If one president is able to do as much damage as the some think he has, perhaps those norms really aren’t “norms” but ideals, and ones that have been steadily chipped away at for long periods of time.

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          • I mean… ok but I think that would suggest that there have been questions about SCOTUS reliability for a long time but also that the situation isn’t nearly so hopeless. Gay marriage won the day in the marketplace of ideas and all of those sodomy laws could’ve been repealed through legislative action. A lot of these issues (including the ones mentions) can mostly be changed through the legislative/political process and at the state level.

            I know I’m a heretic since I agree with the outcomes in Heller and Citizens United but relying on SCOTUS to swoop in and invalidate laws feels like giving up a lot of the game. It’s also not something thats ever happened on a regular basis.

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            • Gay marriage won the day in the marketplace of ideas and all of those sodomy laws could’ve been repealed through legislative action.

              Could have been, but weren’t. I mean this was 2003 that it happened: well into my adult life and within the political light cone of a lot of Millennials.[1] Maybe it wasn’t a huge deal then, as the laws were already very rarely enforced, and the main substantive result was that it laid the ground for Obergefell.

              But the Court is unreliable and we win the battle of ideas or whatever.

              Fine, that’s a great idea in the normal course of events, but where we are is not the normal course of events. It’s specifically not the normal course of events because we’ve got a historically unfit dingus in the White House, and one who has shown considerable enthusiasm for authoritarianism and no understanding or regard for any sort of Constitutional restraint.

              And one of the worst things Trump has done in his time in office has been to shift one of the bad but irregularly enforced laws into a tool of (to be blunt) terror directed at immigrants by giving a reason to lock up thousands of children, making an already bad and inhumane orders of magnitude worse, and completely gratuitously.

              And Congress has been completely supine in the face of Trump because, well, he’s their guy. But four out of five conservatives on the Court have done the exact same, with Kennedy occasionally showing signs of resisting.

              Now Kennedy’s gone, and we’re almost surely going to get another Gorsuch.

              Liberals, I contend, would have a pretty good justification for being upset even if this were happening under President Rubio.

              But it’s not. And so another possible check on Trump’s power is that much less likely to be an actual check on Trump’s power.

              [1] I’m a bit older than the oldest of them, and was also well on the way to being a politics junkie by the time of my bar mitzvah.

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              • Lawrence strikes me as a weird example, again, because the court was following, not leading. I agree with the decision but these were barely enforced laws in a very post sexual revolution culture. We also may have to agree to disagree on exactly how partisan the court is. Again, I think the ACA mandate wouldn’t have been creatively upheld nor would the close decisions still be the exception rather than the rule if partisanship was all that was happening.

                But even if it is I think the focus on the court itself is the wrong battle. It’s been called the least dangerous branch for a reason. Its power is only real as long as more powerful players respect its decisions and I think they’re very cognizant of that. The answer here is to go out and win legislative victories and change laws, not hope for the Supremes interpret things in a particular way because of who happens to be president.

                Edit to add I’d also buy all this a lot more if the people outraged by Trump were similarly outraged by Obama adopting the Bush view on War on Terror issues with mass surveillance, silencing whistleblowers, and claiming power to assassinate American citizens abroad. Like I really dislike Trump but I struggle to see most of these criticisms as principled.

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                • Edit to add I’d also buy all this a lot more if the people outraged by Trump were similarly outraged by Obama adopting the Bush view on War on Terror issues with mass surveillance, silencing whistleblowers, and claiming power to assassinate American citizens abroad. Like I really dislike Trump but I struggle to see most of these criticisms as principled.

                  Obama’s mass surveillance stuff was terrible and baked into the cake before he was elected (which is when I displayed my outrage, but the alternative was supporting McCain who was no better on WoT issues), the silencing whistleblowers was pretty bad but part of a longtime trend as the institutional memory around the Pentagon Papers faded, and I’ll cop to never really understanding why the question of whether an al Qaeda leader in Yemen was an American citizen was terribly relevant to the question of whether drone assassination was OK.[1]

                  I’ll also cop to having no clear understanding as to whether drone assassination is an acceptable way to deal with al Qaeda leaders in general. I was uncomfortable when Bush did it, but not outraged (and he did it less than Obama, no question, but he did do it).

                  All of this seems questionably relevant, though, because stuff Obama and Bush have in common is not obviously relevant to the things that Trump is doing that is uniquely bad. Of which there are many.

                  [1] Due process is not something that only American citizens get, and whether something is in accordance with the laws of war is clearly not dependent on whether the target is a citizen of one’s own country!

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                  • I voted for Obama in 08 with hopes he would take the excesses back a notch. The idea that he was going totally undo something that took years and years to build was never realistic.

                    The reason I think it’s relevant is because I don’t believe most Democrats or progressives really care about civil liberties, due process, or the dangers of executive overreach. I’d love nothing more than having a SCOTUS that really was willing to throw its weight around on that stuff and a political party that consistently (within reason) stood up for it and held its own accountable. The Democrats are not that party though and I’m not willing to suspend my disbelief and talk about how righteous and important it is for the Supreme Court to get real muscular in a way it hasn’t been for 50-60 years because Trump. This is especially so when I know most of the people calling for that would immediately drop the whole idea if they were in power tomorrow.

                    Also to he clear I’m not doubting you or your stances present and historical, just explaining my perspective. It also isn’t an apology for Republicans who, outside of some very narrow circumstances in local elections* have no chance of ever getting my support.

                    *Let’s be real, most ‘Republicans’ in Maryland, especially where I live would be moderate blue dog type Democrats in most of the country. I only ever do it when I get annoyed enough about de facto one party rule to be an asshole contrarian but I mostly vote D or third party.

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                    • Also to he clear I’m not doubting you or your stances present and historical, just explaining my perspective.

                      Sure. I didn’t really think you were, but at the same time time there’s a bit of thing that drives me crazy here and elsewhere where people make meta-level arguments without clearly stating their object-level preferences. So I’m trying to be the change I want to see in the forum.

                      As for the rest, I agree with a lot of that and don’t think that progressives are particularly better than anyone else on civil liberties.[1] But at the same time, I never expected Obama to be a check on executive power because that’s actually impossible. I think I mean that in the literal sense: the best the President can do is simply not exercise power, and a future President will not be bound by that.

                      This is probably the core of the disagreement. Congress is fucking useless [2] so the only check between now and 2020 is the Court. A partisan D court would work. A non-partisan R court would work. A partisan R court is just as useless as Congress, but hey, at least they’ll hand down a bunch of terrible ruling that I’ll hate while they fail to constrain Trump.

                      [1] And this cuts both ways. Most conservatives are awful on such issues but a some are really impressively good and principled.

                      [2] And one of the reasons I wasn’t concerned about executive overreach under Obama or for that matter Bush was that a lot of the reason they overreached was that Congress is so bad that the President can either overreach or let everything fall apart.

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                • if the people outraged by Trump were similarly outraged by Obama adopting the Bush view on War on Terror issues with mass surveillance, silencing whistleblowers, and claiming power to assassinate American citizens abroad. Like I really dislike Trump but I struggle to see most of these criticisms as principled.

                  RE: Droning American Citizens Abroad
                  One of the better things Obama did for this country was force the Left to take ownership of the war. With ownership came responsibility. For all the talk of how horrible it was that Bush was killing American citizens on foreign battlefields without a trial, Obama didn’t have any workable alternatives.

                  The root problem there wasn’t Bush running amok after 911; It’s we don’t have legal tools to deal with a lawless organization strong enough to wage war from a lawless land. We could be there another century. Also to Obama’s credit he’s made it cheap enough that we can.

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      • LeeEsq: If you agree with American Far Right thought, your happy because your going to get the return of the Lochner era court. Even if the Democratic party wins elections, every they pass now as a chance of getting knocked down as un-Constitutional because the Right hates it. If your more liberal than the average Republican politician its going to be hard.

        I thought the myth of the Lochner Court was killed 25 years ago when Barry Cushman released his book tracing the development of constitutional jurisprudence from the 1870’s into the 1930’s.

        It paints a much more complex picture than the story you’d like to believe. Plus, for people that have actually read Lochner, we scratch our heads to wonder why this case could have ever become the bane of anyone’s existence seeing it was decided on VERY narrow grounds, was effectively over-ruled sub silencio about ten years later and the Supreme Court of that era upheld infinitely more laws than it struck down.

        Libertarians also get Lochner wrong if they believe that it was some kind of defense of laissez faire principles. It wasn’t and anyone that spends the time reading the decision would know that.

        Also, cases like Schechter were decided the way they were for good reason.

        Heaven help you if you’re reciting out of Ian Millhiser’s book on the subject, which I happened to read. His law office history is on par with the law office history of the individual rights interpretation of 2A…which is to say…well…

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    • My counter-intuitive thought for the day… what if one, er two of the exiting Anti-Trump Senators throws a spanner into what would likely be a very fast timeline…

      Not saying that they will, but all it takes is two… we might see some weird things with the Kennedy replacement is all I’m sayin’

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      • The anti-Trump Senators all think Neil Gorsuch was one of Trump’s best ideas. They want a Gorsuch clone to replace Kennedy, who’s too much of a RINO squish for them.

        Jeff Flake and Lisa Murkowski are not going to save us.

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        • Save you… I’m looking forward to a shiny new upgrade to the Kennedy model; it was unreliable and starting to sputter unpredictably.

          I just make a living having to consider all the unlikely possibilities and how to mitigate against or leverage to my advantage.

          Would you trade, say, a useless (but yuuuge) Wall for a right to pick 3-justices from Trump’s list that he could then pick from?

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        • To be fair, I think Gorsuch really was one of Trump’s best ideas. He nominated somebody who actually had the qualifications for the job and isn’t a complete embarrassment. I would certainly prefer somebody very different, but given that he appointed people like Scott Pruitt and Michael Flynn, I don’t see how we can hope for much better than Gorsuch.

          If the next nomination is as good, I think we will have dodged another bullet.

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          • Disagree. A worse nomination would go down in flames and seriously damage Trump’s relationship with the GOP, eliminating their main substantive reason to run interference for him.

            Remember how they reacted when GWB (still popular with the party, and at that point regarded as a reliable ally by pretty much every major GOP constituency) nominated Harriet Miers?

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            • Remember how they reacted when GWB (still popular with the party, and at that point regarded as a reliable ally by pretty much every major GOP constituency) nominated Harriet Miers?

              Yep. He was given a mulligan and told to start over.

              It’s like a guy who drops the ball, picks it up, and then scores anyway.

              Trump has a much shorter leash than Bush did on this subject, he *has* to stay on that list… but he doesn’t care “who”, just “how”.

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              • Right. So it would be better if he messed up because the GOP wouldn’t give him a mulligan, and once they stop doing that, they might be like, “Hey, we’re Congress and why are we letting this nincompoop start a trade war? We’re Republicans and we hate that! Isn’t that something we’re actually right about?!”

                I think the tariffs are the least urgent of the egregiously bad things Trump is doing from a moral standpoint, but they also are the thing that I think the GOP is most motivated to stop. And who knows. Maybe once Congress starts asserting their power Congresscritters will discover they actually kind of like power.

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                • So it would be better if he messed up because the GOP wouldn’t give him a mulligan

                  You are not cynical enough. If Trump’s pick goes down in flames, then he’ll take one of the 24 remaining choices. Ditto to 23 and so on.

                  As long as he’s popular enough to “primary” Congressmen and willing to sign on the dotted line, he’ll be given as many chances as he needs.

                  And why shouldn’t he? It’s not like he put that list together. Everyone knows he stole someone else’s homework. NO ONE, on either side, cares.

                  Trump’s job is to mug for the cameras, focus the spotlight on himself, say something enflaming on twitter, and sign off on a, carefully vetted for him, Supreme.

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            • You have more faith in the GOP’s willingness to shut down bad candidates than I do. My gut says that an appropriately corporatist social conservative has a better than even money shot at getting the votes, even if he’s an embarrassing buffoon. I’d give Joe Arpaio a lot less than a 50/50 chance, but not close enough to zero to risk it. And I think that Roy Moore minus the history with teenage girls would probably be a coin toss.

              I just don’t see anything in the past bunch of years to have faith that a sense of shame or duty would put the brakes on it. In terms of time passed, Harriet Miers is closer to GHW Bush’s presidency than the present day. A lot has happened.

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                • Has the whisper/twitter campaign started, daring Trump to be his own man an pick a nominee for himself? Surely he knows better than the establishment lickspittles giving… nay, forcing, their lists.

                  If I were on the other side, that’s one of the things I’d do.

                  Trump only has a window for one nominee (I think)… if he picks, say, his sister… it all goes up in flames… then mid-terms…then a better than even chance that the Senate flips.

                  {I don’t know why I’m giving you all these great ideas}

                  edit: and by “you” I don’t mean DM

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                  • A delay strategy would seem to depend on two things: (1) the Senate being more Democratic after the midterms and (2) an ongoing debate on the SCOTUS seat doesn’t adversely impact Democrats in the midterms.

                    (1) I’m on record as thinking the Republicans pick up seats in the Senate (but lose the House). IIRC, the collective judgment at OT was less optimistic for Republicans, but not confident that the Senate would flip.

                    (2) The competitive Senate races appear to be mostly in States carried by Trump that don’t appear very proggy to me. If Manchin, Heitkamp and Donelly voted for Gorsuch in order to get re-elected, what kind of commitments will they make during the campaign regarding the nomination? (OTOH, the House may play quite differently, I sense a number of Republicans might be defending suburban seats in places like California)

                    If (1) and (2) cannot be answered satisfactorily, the best strategy IMHO for Democrats is not delay, but let the confirmation hearing move forward on the McConnel timetable; let Manchin and company vote whatever way helps them stay in the Senate; and utilize the SCOTUS appointment as an additional reason in the campaign to vote for Democrats to Congress to act as a check on Trump.

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                    • Good points all… I didn’t go back and re-evaluate my Senate guesses with this in mind… I’m sure turn-out with Kennedy’s seat in the balance would rise on both sides leading to some additional unpredictability.

                      But for Team Blue, the alternative is a simple 51 vote up/down in a 40-90 day window… rolling the dice on 2018 elections has to be one of the plans, if not Plan A.

                      I take your point about trading a SCOTUS seat for Senate in 2018, I’m not 100% sure Manchin for un-Kennedy is an attractive trade. But you’re right, it might be the only one feasible… though I think there are other gambits… The Collins/Murkowski play, Negotiate with Trump to narrow the list, Try to get Trump to go off script… a corollary might be Trump’s comment to get a justice for 45-years… if he nominates an under-qualified 35-yr old that could be his Meiers mistake… kinda like his under-vetted VA pick.

                      I hope for a solid, well qualified Jurist… but in the interest in of studying political manoeuvres those are the things I’d do if I were on Team Blue.

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                      • I would have to wonder if at some point we’d start to see presidents pick older nominees. If you’re a believer, you want to impact the Court for as long as you can. If you’re a player, you want there to be new SCOTUS battles every year or two.

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            • Remember how they reacted when GWB (still popular with the party, and at that point regarded as a reliable ally by pretty much every major GOP constituency) nominated Harriet Miers?

              I know too little about Miers, although I remember the fiasco you’re referring to. Still, I can’t help but wonder if the Court would be a better thing if we had Miers on it now instead of Alito. (I’m assuming that Roberts still would have been picked to replace Rehnquist.)

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  1. Barring something really unusual and a miracle, Trump will appoint Kennedy’s successor. It will be the youngest qualified person as approved by the Federalist Society and the Heritage Foundation.

    This will do damage to Roe and Gay Rights.

    The question becomes is how much hardball is Democratic Leadership willing to play when they control the Senate and Presidency again. I.e., will there be courtpacking/expanding.

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    • This will do damage to Roe and Gay Rights.

      Roe yes, they could hand that back to the states.

      The Gay Rights’ genii is already out of the bottle and society in general thinks it’s not very scary. A cake or two can’t threaten a movement that strong and it’s hard to see it going beyond that.

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      • I think you’re probably right about gay rights but I worry a lot more about trans rights.

        And really the Supreme Court have always been a trailing indicator on gay rights; SCOTUS wouldn’t have been doing anything particularly bold if they’d invalidated sodomy laws in the ’80s by deciding Bowers v. Hardwick correctly.

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    • Overturning Roe would be the best thing for the abortion debate and policy that could happen.

      It would allow for compromise. For something other than the absolutist positions on either side that are currently holding the debate hostage and don’t reflect the positions of the majority of the populace.

      As someone who is anti-abortion I wouldn’t like the resulting laws and the principled pro-choice feminist wouldn’t like the resulting term limits. But I would be happy with some term limits and the feminist would like some federal funding and easier access.

      It works in the rest of the western world. There is little reason to think it would be significantly different in the US.

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      • Every aspect of health care in the US is vastly more fucked up than it is in the rest of the western world. I know anti-abortion folks really disagree strenuously with this, but abortion is still an aspect of health care, and the demise of Roe would do nothing to change that, nor to unfuck the US healthcare system as a whole.

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        • Oh, I agree that it is a part of health care, at least as a practical matter and it would be as fucked up as other aspects, but I would guess (and I could be wrong) from my reading about the issue that regular health care fucked up would be better than fucked up like it now is.

          But again, I could be wrong in this regard.

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          • Believe it or not, this fiercely pro-choice feminist is of mixed opinions but leaning more toward your reading than away from it in general.

            That said, your comment below
            “It is only in the US where the lawmakers are bound by the Supreme Court ” is wrong unless you meant the “and” clause after it to qualify it rather than add to it.

            Because
            https://en.wikipedia.org/wiki/R_v_Morgentaler
            and
            https://en.wikipedia.org/wiki/Tremblay_v_Daigle

            are two Supreme Court of Canada decisions which *very much* bind Canadian lawmakers.

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          • Maybe. A lot of what’s happened with access on the ground in a lot of states involves anti-abortion activists exploiting various broken aspects off the regulatory state and healthcare provision to deny access. I don’t really believe that they’d stop doing that in the absence of Roe; I certainly wouldn’t if I believed the sorts of things anti-abortion activists believe about abortion.

            Some of this is an effect of Roe and its sequels as the anti-abortion movement devised tactics that let them make abortions harder to get that passed constitutional muster. But now the tactics are out there and might well preclude a new equilibrium from forming.

            And overall, if there were robust access and funding assistance, I do think the kind of compromise you outline would work better.

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        • Saul Degraw: This is completely wrong. The American right wing is simply an extreme outlier in fantacism of anti-abortion politics in the West. See Ireland’s recent vote.

          And I would argue that Roe is the reason why that is. See Ireland, see Italy, see the Netherlands, see frankly every other Western democracy. In every other country it is a democratic, parliamentary, issue and the laws reflect that the majority isn’t dogmatic one way or the other. It is only in the US where the lawmakers are bound by the Supreme Court and where sensible compromise isn’t possible where the Right takes such a extreme position and where such extremism is rewarded by voters who think the absolutist position against abortion is morally less wrong than the extremist pro-choice position.

          If you think Roe is too permissive, but aren’t anti-choise per se, your only allies are on the right.

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          • While this once might have been true, and maybe we’d have been better off had the decision never been made, I don’t think it is now due to path dependency. Overturning the precedent wouldn’t depoliticize the issue or undo decades of political and activist warfare. Maybe we’d come out better way down the road but there’d be a lot of irreversible collateral damage in between.

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            • The other issue as Lee has pointed out is that many European conservatives have made peace with the social changes of the 1960s and 70s especially in their political elite. United States conservatives have done no such thing. There are still people out there who think they can reverse Griswold and outlaw married couples from using contraception. These are not a small group of people either.

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                • This is both true and a non-sequitor. The whole point of living in a pluralistic democratic country is that you need to acknowledge that there are always going to be people who disagree with you and a lot of support for policies that you hate. European center-right conservatives realized that the welfare state was popular and that the social liberal reforms were not going away so they changed their stances and focused on making policy choices that they did like while working around those things.

                  The response of the American right is seemingly “Never surrender! Never give in! We can never accept the welfare state! We can never accept the social changes of the 1960s! We must fight fight fight until we create Gilead!!”

                  This does not make for living in a pluralistic society. Do you they think liberals are going away just because they want them to?

                  There are plenty of policies I would like that are probably never going to happen in the American context like the end of at-will employment and serious regulation of financial markets.

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                  • Most European states are the size of our States.

                    If Germany, Italy, Poland, and Sweden all had to agree on a one-size-fits-all welfare state we’d see something similar to the US in terms of conflict and disagreements.

                    And yes, living in a pluralistic multi-cultural society implies not insisting on one solution for the entire EU.

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          • The in-house magazine of the Southern Baptists supported Roe when it came out. Flagrant anti-abortionism was seen as suspect because it was Catholic for most of them. It took an internal coup to get the Evangelicals to go down the anti-aboriton path.

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            • And good god, have they sold their souls to the devil for that bargain.

              One solid inflection point was Oral Roberts — when you get to the point where you’re telling a nation “give me money for Jesus, or else he’ll take me home” — your Church has lost itself to hucksters and charlatans.

              The rise of the televangelists stuck a dagger into the back of American Christianity, at least over the long term.

              And now you have the prosperity gospel. You’ve got Christianity (or at least the highly vocal, highly visible, talk about how much Christ means to them all the time evangelical set) on the wrong side of love and empathy with the LBQT issues. And of course, their unwavering support now for Trump, which nothing — not vocal admissions of sexual assault, not multiple affairs, not children in cases — can sway.

              The Church and I parted ways long since, but it’s not hard to understand why the Church is shedding the young. And by “young” I’m pretty sure it’s the sub 40 crowd these days…

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              • The prosperity gospel is not a 20th century invention but the 20th century did put it into overdrive.

                I think a lot of Evangelicals do know that they are losing lots of younger congregants and power. The smartest ones are trying to urge moderation and change. The ones supporting Trump seem hellbent on getting as much as they can before demographic changes screw them and having a judiciary that blocks progressive legislatures.

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      • As someone who is anti-abortion I wouldn’t like the resulting laws and the principled pro-choice feminist wouldn’t like the resulting term limits. But I would be happy with some term limits and the feminist would like some federal funding and easier access.

        I’m not sure you have the right idea of Roe v. Wade here. You realize that a trimester limit is built into Roe v Wade? That only during the first trimester is the mother’s interest compelling, but in the second and third the state’s interest becomes more compelling?

        There’s a reason limits on second and third trimester abortions (with the latter being, IIRC, universally barred in the US except when necessary to preserve the life of the mother) both exist and are totally Constitutional. (And, for that matter, you don’t find many pro-choicers supporting a change in this framework, mostly because they realize second and third trimester abortions are almost exclusively due to tragedy).

        So I’m confused by your usage of “term limits” here, because those already exist in the US. Are you thinking of some totally different set of term limits? What would those be, do you think? I mean especially in light of 30+ states having trigger laws on the books, to automatically ban abortion entirely if Roe v; Wade is repealed?

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  2. My first thought is that this won’t so much change decisions as broaden them. I think a lot of 5-4 decisions in recent years have been written as narrowly as possible, which in my assessment is a bad thing, because it doesn’t establish strong precedents for lower courts to follow. I mean, a narrow ruling is fine if that’s what the case requires, but I’m not the only person who sees the narrowness of some recent decisions as kicking the can down the road.

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    • I think the narrow rulings are more the work of Roberts who wanted larger consensus, which is easier with smaller decisions. The knock on Kennedy was that he wrote poor, fuzzy decisions that failed to articulate a ruling of the case that could guide the lower courts, create precedent for future cases or even attract other justices. It’s more the 4-1-4 decisions that denote failure than 5-4.

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  3. Picking judges is one of the areas where Trump isn’t likely to show much variation from any generic Republican president, so the idea that this is the end of the world is awfully strange. I get that it means several more years of Supreme Court decisions that you don’t agree with, but that’s the way the game works. The idea that the country is going to fly off the rails if Republicans get a say in governing is… well, I’m not quite sure how to describe it. It involves imagining a state of being that has never been and will never been. Democrats haven’t had a majority on the court in something like fifty years.

    I will go back to my comment from the other day. If you take a loss and you properly digest it as a loss, you can go about the process of learning from that loss and fixing what needs fixing. If you convince yourself that you didn’t lose, but were cheated, you can hang out in a state of semi-suspended animation definition. And that state will invariably involve one gut punch after another as you convince yourself that you ought to be winning only to be perpetually reminded of the reality.

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  4. Is it correct to say that as the Senate rules are now, as long as the 50 Republican Senators stick together (i.e. even w McCain still on indefinite medical leave), the confirmation process is rather straightforward and there’s nothing the Dems can do to stop it?

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      • From the link, interesting to recall:

        The only Democrats who supported advancing Gorsuch on Thursday morning were Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Michael Bennet of Colorado. Manchin, Heitkamp and Donnelly are all up for reelection. Bennet has faced significant home-state pressure to back the Denver-bred Gorsuch, though he then voted to block Gorsuch after the rules change.

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    • Correct with these caveats:

      1. Trump and Company fucking something up is always an option (even if slim); and

      2. If Trump and company were to nominate a very anti-abortion hardline or otherwise conservative hardline, Democrats might be able to cajole some of the more vulnerable Republicans to bailing.

      Both scenarios are slim chances. Dean Heller from Nevada apparently suggested a SCOTUS fight could motivate Republicans to the polls. He might discover this is a “beware what you wish for” scenario.

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      • Don’t those caveats reduce to Trump simply picking from the Federalist list that was circulated before his election? I am not familiar with the list itself, but my impression was that these were reliable “Federalist” types with good resumes and no crazy eyes or paper trails? Sure, he might nominate Michael Cohan, but I think he understands that he gets a lot of latitude from sticking to the list.

        Addendum: I would recommend a woman off the list if I were a Republican strategist.

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              • WaPo is reporting that he’s said that he was going to use the same list:

                Trump praised Kennedy as someone who has been a “great justice of the Supreme Court” and added, “hopefully we will pick someone who is just as outstanding.” The president said he would select a nominee from a list he first released during the campaign to assuage the concerns of conservatives skeptical over who he would pick for the court.

                “They will come from that list of 25 people,” Trump said.

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          • He appears to have been on the second list and received a unanimous well qualified rating from the ABA. Unfortunately, he went to some no-name law school called Berkely.

            Mainly though I think that Saul is right that the Democrats will respond to the nomination by raising women’s issues, which a female nominee would counteract at least in part.

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          • The first thing I wondered was “how many of those guys went to Harvard or Yale?”

            Then I realized that that was something that I could look up.

            Amy Coney Barrett – Rhodes College (BA), Notre Dame (JD)

            Keith Blackwell – University of Georgia (BA, JD)

            Charles Canady – Haverford College (BA), Yale University (JD)

            Steven Colloton – Princeton University (AB), Yale Law School (JD)

            Allison Eid – Stanford University (BA), University of Chicago (JD)

            Britt Grant – Wake Forest University (BA), Stanford Law School (JD)

            Raymond Gruender – Washington University in St. Louis (BA, MBA, JD)

            Thomas Hardiman – University of Notre Dame (BA), Georgetown Law (JD)

            Brett Kavanaugh – Yale University (BA, JD)

            Raymond Kethledge – University of Michigan (BA, JD)

            Joan Larsen – University of Northern Iowa (BA), Northwestern University (JD)

            Mike Lee – Brigham Young University (BA, JD)

            Thomas Lee – Brigham Young University (BA), University of Chicago (JD)

            Edward Mansfield – Harvard University (AB), Yale University (JD)

            Federico Moreno – University of Notre Dame (BA), University of Miami School of Law (JD)

            Kevin Newsom – Samford University (BA), Harvard Law School (JD)

            William Pryor – Northeast Louisiana University (BA), Tulane University Law School (JD)

            Margaret Ryan – Knox College (BA), Notre Dame Law School (JD)

            David Stras – University of Kansas, Lawrence (BA, MBA, JD)

            Diane Sykes – Northwestern University (BS), Marquette University Law School (JD)

            Amul Thapar – Boston College (BS), UC Berkeley School of Law (JD)

            Timothy Tymkovich – Colorado College (BA), University of Colorado Law School (JD)

            Robert Young – Harvard University (BA, JD)

            Don Willett – Baylor University (BBA), Duke University (MA, JD, LLM)

            Patrick Wyrick – University of Oklahoma (BS, JD)

            For comparison:

            John Roberts – Harvard University (BA, JD)

            Anthony Kennedy – Stanford University (BA), Harvard University (LLB)

            Clarence Thomas – Conception Seminary College College of the Holy Cross (BA), Yale University (JD)

            Ruth Bader Ginsburg – Cornell University (AB), Harvard University, Columbia University (LLB)

            Stephen Breyer – Stanford University (BA), Magdalen College, Oxford (BA), Harvard University (LLB)

            Samuel Alito – Princeton University (BA), Yale University (JD)

            Sonia Sotomayor – Princeton University (BA), Yale University (JD)

            Elena Kagan – Princeton University (BA), Worcester College, Oxford (MPhil), Harvard University (JD)

            Neil Gorsuch – Columbia University (BA), Harvard University (JD), University College, Oxford (DPhil)

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        • That would be the smartest thing that they can do.

          I don’t know about your addendum. Who is it going to impress now? Trump’s base clearly doesn’t care. Plus Democrats already clearly loathe and hate and distrust Trump and that they would view this move with suspicion.

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          • My thinking is that the extent to which Trump is a driving issue in the election, versus local or candidate specific issues is to be determined on a race-by-race basis. Trump can minimize / offset his strong gender splits by nominating a woman. Democratic candidates can be confounded in their ability to claim their opponent is advocating anti-woman positions when the opposing candidate is female. They sometimes say stupid things and given the quality of local reporting, they may never recover.

            But basically, women are over half of the voters, and women in public office are seen as more honest, compassionate and ethical. Making the November elections more about a female Judicial appointment than about Trump can’t hurt and might make a difference.

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  5. What I find most interesting is the timing of this. Is it because he thinks the R’s are going to pick up seats next term, making no doubt to the fact that the justice picked will be conservative, or is that he likes the choices Trump has made so far and is afraid of Dem picks? Is there a third option?

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  6. McConnell’s gall and chutzpah is surely a thing to behold.

    https://slate.com/news-and-politics/2018/06/chuck-todd-mitch-mcconnell-scotus-hypocrisy-limits-gop-lol.html

    Plus this paragraph is great:

    It’s been said before, but a lot of Wednesday’s most prominent political commentators seem to believe they live in a civics book published in 1993 rather than the world in which a sleazy reality TV/tabloid sex character who won the presidency by being a racist jackass now enjoys the full support of a Republican Party whose top figures had previously condemned him as an ill-informed doofus who was too erratic to be trusted with command of nuclear weapons.

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    • 1) “NBC’s Chuck Todd is the host of Meet the Press, making him arguably the most prestigious political analyst in the country” is very dubious.

      2) I can’t imagine those tweets of Todd’s in anything other than a snarky, sarcastic mode, so the takedown seems pretty out of place.

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  7. It will be interesting to see if the replacement will side with the conservatives on stripping, or at least severely curtailing, the power of district courts to issue injuctions against federal law or policy, such as happened yesterday when a judge in San Diego gave the administration 60 days to reunite families separated at the border. As Justice Thomas wrote the other day, there’s no statute and nothing in the Constitution that gives them that authority. which they are abusing and which may be reined in by the Supreme Court.

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    • It’s called the “judicial power.”

      Clarence Thomas, an original-public-meaning textualist, ought to have a pretty good idea of what that means, what it meant in 1789, and it most certainly did and still does include issuing injunctions against the executive.

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      • Yes, Thomas has a very good idea what it means and wrote about it in his opinion on the Trump v Hawaii case.

        Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

        I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

        And then Justice Thomas went on in great detail for pages and pages on the issue. finishing with “In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

        I would take that as a warning shot for the district courts who are issuing injunctions based on emotions and outrage instead of law.

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        • I’d say Matt makes a pretty solid case. McConnell is an SOB that’s been torching norms and pouring poison into the foundations of the republic for decades but he’s an effective SOB.

          I’ve been voting for that effective SOB for decades. :)

          The problem with that philosophy is that the norms torched and foundations poisoned by McConnel will remained torched and poisoned after he’s gone from the Senate Leadership.

          And we all, including , even if he doesn’t realize it now, will be the worse for it.

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      • The problem is that they feel the exact same way

        When Democrats continued their heretofore unforeseen practice of blocking up-or-down votes for majority-backed judicial nominees after the GOP regained the Senate in 2004, Republicans saber-rattled about invoking the so-called “nuclear option.” That fear led a bipartisan group of Senators, seven from each party, to forge the ‘Gang of 14? compromise. The terms of that agreement survived a number of years until Democrats decided that they could not abide the GOP using the filibuster precedent they’d invented under Bush to thwart a limited number President Obama’s picks. For perspective, in their respective first terms, Obama had more of his circuit court nominees confirmed than Bush did — and enjoyed a better confirmation rate on district court selections than George H.W. Bush. Nevertheless, Democrats decided that the deployment of their own tactics against a Democratic president constituted a fresh justification to abolish the very practice they’d pioneered, detonating the “nuclear” option that many of them had inveighed against when Republicans were merely considering it as a method of overcoming Democrats’ previous unprecedented escalation. Some Reid defenders have argued that the former Democratic leader did everything he could to reason with Republicans to avoid going nuclear very early in Obama’s second term. Not true:

        When Reid broke the filibuster [in 2013], he claimed the GOP could have avoided the nuclear option if they’d simply confirmed the seven appointees they’d been blocking. According to Politico, McConnell conceded to those demands to save the filibuster. At the last moment, Reid insisted that Republicans surrender the threat of filibustering any Obama’s appointments in the future.

        Democrats single-handedly and unilaterally introduced the concept of judicial filibusters against majority-supported nominees, then proceeded to unilaterally end it, all over the course of about a decade. They started the practice when they were in the minority, then blew it up when they were in the majority.

        History Lesson: On Judicial Nominations, GOP Must Punish Democrats for Decades of Unprecedented Escalations

        I personally think both sides have been doing this for decades longer, playing partisan BS games, telling themselves “this time it is totally worth it, blah blah blah” and ramping up the antagonism at every opportunity. But then again, I don’t subscribe to either party magazine.

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        • When Democrats continued their heretofore unforeseen practice of blocking up-or-down votes for majority-backed judicial nominees after the GOP regained the Senate in 2004,

          Whoever wrote this had completely forgotten the Clinton administration. (Or was simply lying). It was so bad that Rehnquist wrote an open letter saying that there were so many vacancies that the Federal judiciary could no longer function.

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        • Yeah but that’s line’s knee-slappingly inaccurate Aaron even by republitarian standards.
          The Dems worked with Bush W on multiple legislations and allowed a vote on his Supreme Court picks. They never organized a blanket boycott of every proposal Bush ran up the flagpole like McConnel did with Obama and when their obstruction on court picks started producing rumblings of the nuclear option they backed down. McConnel on the other hand ran it right through to the filibuster being eliminated (and given the choices available to Reid at the time I think he made the right choice to do so).

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          • My point is that they don’t see it the same way. And if they don’t see it that way, they won’t react in the same way you do to the present situation.

            Many people (here and elsewhere) have been calling for a return to norms. I am starting to think many of those norms either were more fictional than real or have been undercut by both sides (perceived or real, matters not) that they are more of a false premise than anything else.

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            • During the Clinton years, when Republicans in Congress were being led by famously level-headed Newton Leroy Gingrich… the institution actually governed pretty well all things considered. This while Republican leaders were shooting up fruit to prove that Vince Foster was murdered.

              So it definitely went downhill in the intervening years, and McConnell is, I think, a major driver of it. The thing that amazes me is rank and file Republicans somehow seem to hate him even more than I do.

              I mean I think the man is an absolute motherfucker, but you can’t think someone is an absolute motherfucker without having a certain degree of respect for them.

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    • The Republican Senate handled Garland wrong. They should have voted him down, along with every other nominee who wasn’t an originalist. If you truly believe that non-originalists don’t belong on the Court, this is a consistent and effective position. I’m happy that Garland isn’t a justice, but I’m not happy with how it was handled.

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      • Or they could have voted to confirm like the Democrats voted to confirm Roberts and Alito. I’m pretty sure that nobody in the Democratic Party really liked them but they confirmed them. Alito was appointed with the Democrats had a a majority in the Senate.

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      • McConnell didn’t trust his caucus. It would have taken only a handful of defections to confirm Garland. I think the experience of 2017, when McConnell couldn’t muster the votes for ACA repeal/reform, and barely got the tax cuts passed, suggests he made the correct (in terms of keeping Garland off the Court) tactical choice.

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          • There is something to that, but… if Hillary had come out with someone like that it would have made Kagan or Breyer the median member of the Court and Sotomayor (probably) would no longer be the justice furthest to the left.

            Just like even if Trump nominates someone truly bonkers the median vote will just be Roberts. Which (from my perspective) is def worse than Kennedy, but not necessarily a complete sea change.

            (And the stuff the Roberts Court has done that’s seriously honked me off is all stuff that Kennedy signed on with.)

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          • If Trump lost, wasn’t McConnell immediately going to call a vote on Garland? I think people “game-theoried” this one out here and Obama would have needed to withdraw the nomination, i.e., be a jerk to Garland? And people didn’t think he had it in him.

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