Caterwauling, Or Monologues From The World’s Greatest Deliberative Clownshow

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Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his writing website Yonderandhome.com

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55 Responses

  1. Avatar North
    Ignored
    says:

    I think Bernstein (and Biden) encapsulated it best:

    “Back in 2016, when Republicans claimed that nominating and confirming a Supreme Court justice during an election year was a violation of the electorate’s right to choose, they were fond of citing something they called the “Biden rule.” In fact, what Joe Biden said when he was Judiciary Committee chair in the summer of 1992 was that if a vacancy were to arise after his June 25 speech, he would urge President George H.W. Bush to wait to nominate a new justice until after the election, and at any rate he would not hold hearings until afterward.

    Why? Because “where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”

    Well, judging from the opening statements in these confirmation hearings, Biden knew what he was talking about.”Report

  2. Avatar Michael Siegel
    Ignored
    says:

    Excellent diatribe. Can’t help but agree.Report

  3. Avatar Saul Degraw
    Ignored
    says:

    The Supreme Court (or Federal Judiciary in general) whether people want to admit or not is political. Yes most decisions are unanimous or near unanimous. But those are often to deal with circuit splits on things like Federal Martime Law or to clarify an ambiguity in the Code of Civil Procedure or Evidence. But the contentious decisions, the ones with 5-4 decisions or plurality decisions are often over issues which deeply affect the lives of tens millions of Americans in all sorts of ways from access to justice to enforcement of civil rights, etc.

    It feels a bit cheap to turn this into a pox on both their houses argument. I think Michelle Goldberg is correct, it is too late for Republicans to start crying about civic norms: https://www.nytimes.com/2020/10/12/opinion/republicans-supreme-court-barrett.html?action=click&module=Opinion&pgtype=Homepage

    ABC will probably get her seat on the bench in a party line vote. This is not a mandate for decades of reactionary politics.Report

  4. Avatar Oscar Gordon
    Ignored
    says:

    One has to wonder if the Constitution is naught but a dead letter at this point.Report

  5. Avatar Saul Degraw
    Ignored
    says:

    This is the least shocking turn of events but guess who are a bunch of pompous douchcanoes and suggested now is the perfect time to pass a constitutional amendment limiting the number of justices to nine: https://www.nationalreview.com/2020/10/pass-the-28th-amendment-the-case-for-codifying-a-nine-justice-supreme-court/Report

    • Avatar Jaybird
      Ignored
      says:

      A constitutional amendment would be a *GOOD* thing.

      Get 38 states to agree. This follows the process and would be a great thing to have established before the fact. Heck, put some language in there about up or down votes and refusals to hold a vote will result in a timely fashion (defined as 3-4 months, say) will result in the justice being automatically move to the SCOTUS.

      Heck, include some language about what happens if the election takes place within the aforementioned 3-4 months.

      This is an unqualified good thing.

      And if it can’t be done, if they can’t get 38 states to agree that it’d be a good thing, then it doesn’t happen.

      Which is also a good thing.

      Write down the rule you want.

      If, in the future, we don’t like the rule, we can repeal it.Report

      • Avatar Mike Schilling
        Ignored
        says:

        That is, make the process “fair” now that the GOP majority is locked in for a generation.Report

        • Avatar Jaybird
          Ignored
          says:

          It’s certainly a damn sight better than “we don’t have an official rule… we have a collection of sentiments”.Report

          • Avatar Mike Schilling
            Ignored
            says:

            How about the D’s add 6 new justices, and *then* we’ll fix the rules.Report

            • Avatar Jaybird
              Ignored
              says:

              This goes back to the Rawlsian “Veil of Ignorance”.

              Just phrase it as “Let’s agree that whomever wins in November gets to add six more justices!” and rest assured that your candidate is going to hit it out of the park.Report

              • Avatar Stillwater
                Ignored
                says:

                I think the problem is that the veil of ignorance isn’t supposed to *fix* problems, it’s supposed to prevent them.

                Oh well.

                Personally speaking, I have no problem with the Democrats radically expanding the court if POTUS, Sen, House all go Democratic. The downside (other than tongue flapping about legitimacy) is that the GOP will escalate if they hold all three and pack the courts even more. I say let ’em. Let ’em both escalate to their heart’s – well, their political will’s – content. It won’t be – cannot be – worse than what’s *already* happened.Report

              • Avatar Jaybird
                Ignored
                says:

                I saw what was going on with ACB as “legal but illegitimate” and I think… eh. Yeah. I can see that.

                Biden packing the court would also be legal but illegitimate.

                It’s a good thing we’ve got so much legitimacy going around that we have this much to spare.Report

              • Avatar Stillwater
                Ignored
                says:

                JB, you’re inclined to stop the illegitimacy here, at this point an not farther., right now, because it favors your views (you’re a conservative in heart). Lots – like LOTS – of people view McConnell’s obstruction of Garland as theft and they want some justice.

                What I’m saying is that the legitimacy of the court (if Barrett gets appointed) is already shot to hell. Given that – that is, given your primary consideration for not acting isn’t operative anymore – why not find a new equilibrium in the SC as well as the lower courts which makes sense according to natural processes?

                Btw, I say that as someone who isn’t an *advocate* of Dems expanding the court. I’m pretty neutral on the topic. And because I’m neutral I’m not at all attached to preserving the current court size.Report

              • Avatar Jaybird
                Ignored
                says:

                I saw McConnell’s obstruction of Garland as a grey area.

                I think that Garland ought to have had an up/down vote. I would have seen him getting a down vote as a bit of a shame but it would have been within the whole “advise/consent” thing.

                So, with that said, I don’t see Garland not getting on the court as shooting the legitimacy of the court to hell.

                The Senate Judiciary Committee? Yeah, that legitimacy got shot. Again.

                Ironically, I’m not sure that ACB getting on the court will necessarily taint the court itself. She is qualified, I guess, as these things go. She’s got a perspective that we’ve seen before and is hypocritical in ways that we’ve seen before.

                I think that it would set the Senate on fire but the SCOTUS would be okay. It’s not their job to figure out who sits with them.

                Now, I *DO* think that packing the court is one of those things that could taint it, depending on how it was done.

                For example, if someone said “in 2037 there will be two additional justices added and in 2057 there will be another two justices added”, that’s a rule that would strike me as being fair enough. Sure. 11 justices? 13 justices? Okay. Ask them to say something about the 9th Amendment.

                But the attitude that says, let me copy and paste this, “How about the D’s add 6 new justices, and *then* we’ll fix the rules” would end up tainting the Supreme Court.

                This is not me saying that I think that what’s going on with ACB is *GOOD* or even *NEUTRAL*. It’s that I think that the SCOTUS is shielded from it.

                If we want to make it so that all three branches of the government are pretty much held in contempt, there’s no better way that I could think of to do it than to (obviously) pack the court.Report

              • Avatar Chip Daniels
                Ignored
                says:

                All this talk of setting “fair” rules, assumes facts not in evidence.
                That is, it assumes that both sides are committed to the premise of democracy and the rule of law.

                They aren’t.

                The purpose of a Constitution in a republic is to set rules which facilitate democracy and the consent of the governed.

                There isn’t any reason to be fair to any group that refuses to accept this.Report

              • Avatar Stillwater
                Ignored
                says:

                Moderator help!Report

              • Avatar Jaybird
                Ignored
                says:

                Divorce or War, then, I guess.

                I’ve been saying that for a while, though.

                (To be honest, if I wanted to re-establish “fairness”, I’d create a Veil of Ignorance and set up a Divide and Choose method. If you had some ham, we could have ham sandwiches if I had some bread.)Report

              • Avatar Stillwater
                Ignored
                says:

                “There isn’t any reason to be fair to any group that refuses to accept this.”

                Over the last decade plus the GOP (as a party, not every individual of course) has demonstrated that they don’t believe in democracy. From Wisconsin to North Carolina to Georgia and hell even out to California we’re seeing that the GOP is the anti-Democracy party. It’s now the party of raw power.Report

              • Avatar Stillwater
                Ignored
                says:

                “I saw McConnell’s obstruction of Garland as a grey area.”

                No, you absolutely did not. What you did was see a shocking abuse of power – one which literally shocked your conscience – and then *excused* it because there is no law specifically preventing what he did. So you called it a wash, despite understanding that he rat-fucked the process by doing so.Report

              • Avatar Jaybird
                Ignored
                says:

                I’m pretty sure I saw it as at the edge of “advise/consent”.

                I’m a big fan of separation of powers. Sometimes this means that the legislative branch wins fights against the executive.

                That’s a good thing.

                “There is no law specifically preventing what he did”, nope, no law. But there’s a part of the constitution we could point to.Report

              • Avatar Stillwater
                Ignored
                says:

                “the edge”

                As long as everyone keeps pushing the edges without going over them we’re OK right?

                (This is where you say the Dems started it right? 🙂 And where you say that Dems legislating their way to a bigger SC is Over The Edge!)Report

              • Avatar Stillwater
                Ignored
                says:

                Add: Recall of course that the argument for holding the nomination process wasn’t advice and consent of the *Seante*, but that the election was impending. I say that to elicit some shame on your part since it’s pretty impossible to believe that you think McConnell’s shenanigans were about Advice and Consent lol.Report

              • Avatar Jaybird
                Ignored
                says:

                it’s pretty impossible to believe that you think McConnell’s shenanigans were about Advice and Consent

                It honestly strikes me as quite possible to see McConnell’s shenanigans as a manifestation of him not consenting.Report

              • Avatar Stillwater
                Ignored
                says:

                “It honestly strikes me as quite possible to see McConnell’s shenanigans as a manifestation of him not consenting.”

                Exactly, Thank you. The constitution makes no reference to “McConnell”, nor his personal inclinations to grant or withhold consent.Report

              • Avatar Jaybird
                Ignored
                says:

                Eh, I’ve complained about the Louisiana Purchase before. Wait, what party was he in?

                “Democratic-Republican Party”. Well, that sounds about right. Both of them.

                Dems legislating their way to a bigger SC? Wait, that is something I might be okay with.

                Are we talking about a law passed in the House, passed in the Senate, then sent up to the White House?

                I’d be down with that.

                Honestly.

                When I hear “Court-Packing”, I’m assuming that it’s something that the Executive does by himself.

                Or herself, I guess. Themself.Report

              • Avatar George Turner
                Ignored
                says:

                If they’re going to pack the court, I think it would be more efficient for them to nominate tranches of judges and let the Senate vote them up or down as a group.

                “All in favor of the Supreme Court class of 2021, say ‘Aye’.”

                If would be like passing omnibus spending bills.Report

              • Avatar Jaybird
                Ignored
                says:

                Now, personally, I’m not going to *LIKE* it.

                I’m going to see it as fundamentally changing something good. But, at least!, it’s following *A* process that is recognizable.

                (I’d prefer a Constitutional Amendment but a law is the next best thing and easier to amend/repeal.)Report

              • Avatar Stillwater
                Ignored
                says:

                “I’d be down with that.”

                No, you wouldn’t, though. Your dislike of Democrats would emerge. You’d view that move as even worse than McConnell stealing an SC seat. Everything in your past indicates that you would. 🙂

                That’s the problem Democrats face, even when they’re trying to implement policies which the majority of Americans – even including conservatives! – support. Part of *that* problem is that they suck at retail politics, but whatever.

                We’ll see, though. If Biden wins, I’m100% sure* he won’t expand the court even though he probably should. It’ll take veto proof level support for him to concede to it.

                *Because he’s said so repeatedly with nothing on the line.Report

              • Avatar George Turner
                Ignored
                says:

                I don’t think anything is going to be up to Biden. He thinks he’s running for the Senate, again, and can’t remember the name of that Mormon senator from Utah that he and Obama ran against.

                So the question would be what the Kamala Harris Administration would do.Report

              • Avatar Stillwater
                Ignored
                says:

                Did you say something, George? Sorry, I was watching baseball.Report

              • Avatar George Turner
                Ignored
                says:

                Houston is up over the Rays, but it’s early and Press Secretary Kaleigh McEnany’s husband still has a chance to take the mound, though I doubt he will. He’s only played about four innings this year.Report

              • Avatar Mike Schilling
                Ignored
                says:

                ERA of 8.31? Beats last year’s 19.29.

                We can see what they have in common.Report

  6. Avatar Mike Schilling
    Ignored
    says:

    Hypocrisy is the tribute vice pays to virtue, so there’s some small good in the GOP pretending to care about faith and judicial philosophy, and not just saying outright “She’ll kill the ACA, overturn Roe and Obergefell, and let us impose election rules that mean we win every time except maybe in case of disasters as big as Trump:”.Report

  7. Avatar George Turner
    Ignored
    says:

    I just watched Kamala Harris’s questioning of ACB. That’s a wasted hunk of my life that I’ll never get back.Report

    • Avatar Stillwater
      Ignored
      says:

      Yeah, ACB just keeps deflecting. I feel ya.Report

      • Avatar George Turner
        Ignored
        says:

        Kamala went on seemingly forever and barely came up with any questions at all, much less relevant ones that a nominee can answer.

        For example, Kamala went on endlessly about how the repeal of the ACA would affect millions of people with pre-existing conditions, blacks, Hispanics, Native Americans, a little girl with cancer wrapped around her optic nerve, and… Well, it was freakin’ endless. Then finally, after what seems like a lifetime, she got to her question, which was essentially “In ruling on the ACA, would you consider what effect of your rulings would have on all these people who would be effected by it?” *drumroll*

        ACB simply replied “Yes. That’s what judges do in ALL cases that are before them.”

        My Democrat housemate, a seasoned trial lawyer, said “I can’t believe Kamala asked that. She knows what judges do. She just wanted to try and make herself look good to some of the people sitting at home. She doesn’t care about this nomination at all.”Report

        • Avatar Stillwater
          Ignored
          says:

          I didn’t read you comment, George. Was it good? I hope so. Thanx.Report

          • Avatar George Turner
            Ignored
            says:

            Yes it was.

            I said “I finally figured out where her parents got the name “Kamala.” Turns out they went with Finnish, where “kamala” means “horrible, terrible, awful, ghastly, dreadful, abysmal” 🙂Report

  8. Avatar Mike Schilling
    Ignored
    says:

    Em must be disappointed than Amy is so adamant about not telling us what she’s gonna do.Report

  9. Avatar Mike Schilling
    Ignored
    says:

    So, we don’t hear much about Barrett’s husband. Here’s hoping he’s not anti-Semitic slime.

    Report

    • Avatar CJColucci
      Ignored
      says:

      I wonder what Ginni’s husband, a self-styled originalist, thinks of Loving v. Virginia?Report

      • Avatar Mike Schilling
        Ignored
        says:

        It’s invalid by the arguments “originalists” use to declare Obergefell invalid. But maybe that’s fine with him, since presumably interracial marriage would be legalized by now via political processes. In most states, anyway, and so what if they can’t travel to Mississippi without his being arrested for miscegenation?Report

    • Avatar Pinky
      Ignored
      says:

      Where’s the anti-Semitism? Please be specific.Report

        • Avatar Pinky
          Ignored
          says:

          You’re the one being coy, not quite calling Ginni or Clarence, or ACB’s spouse anti-Semitic. And I don’t know everything, so if there is a real anti-Semitic connection, then you should bring it out. But if you don’t, I’m forced to conclude that you don’t have one, and that you may well consider a false slur to be permissible if it helps your political side.

          Soros is a rich Jew. He spends a lot of money to promote his political ideology. It’s difficult to see how he’d profit from that spending, and a lot of members of his faith want nothing to do with his plans. It’s not anti-Semitic to criticize Soros without demonstrating some direct connection in the writings of the accused.Report

      • Avatar Aaron David
        Ignored
        says:

        Louis Farrakhan.

        AOC.

        That will do for starts.Report

  10. Avatar Mike Schilling
    Ignored
    says:

    Toady the Court failed 4-4 to issue a stay against a Pennsylvania’s Supreme Court ruling to expand the counting of mail-in votes, Roberts and the remaining liberals against Thomas, Alito, Gorsuch, and Kavanaugh, The conservatives cited Bush v. Gore as a precedent. There’s no doubt where Barrett would have voted.

    This Court needs the shit packed out of it.Report

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