Gaston de Foix

The lunch: https://www.nytimes.com/2020/09/25/us/politics/rbg-retirement-obama.html

I think they are trying to get their favorability numbers on healthcare up. A lot of polling has shown for a long time that the american public trust them Dems much more on this topic.

I suppose some fans might not know it was online. The other reason might be that the events of BG (which I haven't read) was so traumatic that a cathartic release was needed and I can see this short story fulfilling this function. [rant begins] This book is coming out on Tuesday. Can we pause for a moment to note how stupid that is? I would like nothing more than to spend the weekend reading it. I have waited a very long time for this book - (I know it was mostly for Peace Talks but this is really Peace Talks Vol II so...). It would be ideal if it could be released on a Friday. But I'll take Saturday or hell even Sunday afternoon. But Tuesday (which is actually midnight on Monday EST) comes at the end of the busiest workday statistically. Either you stay up half the night reading ruining your next workday (and rushing through the book). Or you wait and your anticipation builds and your friends and colleagues finish it and gloat. You can't enjoy the first virgin rush of discussion, of finishing together. You get there slowly, and when you cross the finish line no one notices or cares. I mean this is some cruel mindfuckery right here. [rant ends]

It's online: https://docs.google.com/document/d/12hNgNIqJM5jqHqC-J-jfLA0WNDG2zEW8TrK_uPzpUJg/edit

Thanks for the update. I think the final consensus will be the same as your conclusion - the split reduced the overall quality. But heartened to hear it finished strong. If only 3 of my questions get a resolution (particularly if its 1, 2, and a random pick) I'll be disappointed. But if I get the answer to just one more question, well I can live with that.

I agree with you on both counts. Joe's set up Orso only to knock him down. I think Broad is owl because of the glasses. I don't think there is a man behind the revolutionaries (Khalul is wounded or dead, Zacharus is in the Empire, Glokta is loathed).

I think the SC judges will worry that by adopting such a rule they will be enshrining that interpretation as final and therefore own the conduct of every judge that comes after. We've all heard horror stories - Marshall, Douglas, Lewis Powell. Every other major country in the world has a mandatory age limit for federal judges. And frankly, it might be a relief for them to know that they can enjoy a retirement sometime, somewhere. Those who are able can still teach, travel, engage in public advocacy, or run for public office if they like. Every other career is open to them. I am blaming him. As much as Ginsburg, no. And I've said before and I'll say again that Obama is the best politician of my lifetime. I would make him president for life if I could. But did he get stuff wrong? Yes. This was a big one. His best defense (and it would be a valid one) is if he tried, politely, and she demurred. Fine - that's on her then. A lot of stuff he cares about (and we all should care about) and she devoted her life to protecting is going into the trash heap once Barrett is confirmed.

It's interesting, I've never heard the argument that lifetime appointment means a mandatory retirement age is unconstitutional. It may just be my non-American roots. But I'm skeptical that the courts will strike down a retirement age of 80 or so. Here's a debate between Posner and Rakoff which touches briefly on the constitutionality of an age limit: https://slate.com/news-and-politics/2017/07/should-there-be-age-limits-for-federal-judges.html. But just because I'm on Richard Posner's side doesn't mean I'm wrong dammit... Well, I'm happy to say I made an assumption that he didn't and we don't know. But I think it's also an assumption to say we will never find out or he won't mention in his memoirs. Obama is human. I expect him to talk about retirements and appointments and subtly deflect blame. But we can wait until 2024 (Finish the book Barack!) and see who is right...

The best long-term mechanism to curb the SC is pro-democracy reforms and a mandatory retirement age for federal judges. The best weapon the conservative judges have to overturn national legislation is federalism. But where Congress is granted power under the Constitution it is very hard to make a federalism argument.

Forcing is a strong word and not one I used. He didn't have the power to force her - but encourage, yes. I don't know that it didn't happen (as you rightly ask) although none of the public reports about RBG's decision to say on (including ones in which her family collaborated) make no mention of any WH contact or discussions. That's their version. We will have to wait for the second volume of Obama's memoirs to be know for certain. But I doubt he did anything because I would expect some form of public report at least now.

This joke was waiting to be made for 9 hours. He is, but I am worried about quality issues with these two books. There are some indications that he didn't follow his usual processes and the delays in publishing these installments.

He should have done what Trump did with Kennedy. Woo, back-channel and cajole through clerks and friends. The Dems could easily have replaced RBG in 2012-4.

It is harder for the SC (even a right-wing court) to strike down laws than you might imagine. And even then they would strike down a provision rather than all of the law. The law has its own rules which can be bent but cannot easily be broken. To give you an example, the Court ruled 5-4 in Rucho gerrymandering poses political questions beyond the reach of the Courts. It's a terrible decision. But here's what the syllabus of the decision says: "The Framers also gave Congress the power to do something about partisan gerrymandering in the Elections Clause. That avenue for reform established by the Framers, and used by Congress in the past, remains open." [https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf] You can agree or disagree that gerrymandering is a big political problem (or a big reason that Dems lose which is not exactly the same thing). But the Court has given the green light for Congress to fix this problem. That's why I would readily trade a conservative SC for legislation that meaningfully fixes immigration, gun reform, climate change and broad political reform. We will soon have a Dem president and Dem congress. They need to act with dispatch to abolish the filibuster and fix problems this country has been grappling with for the last 30-40 years.

Interesting, but inconclusive. It must be a new character.

It's a done deal. The Trump trio (Gorsuch, Kavanaugh, Barrett) will dominate the Supreme Court for many years to come. The Senate Dems will not have the numbers for Court packing. And it's also a bad idea substantively. If there is a silver lining, it is the utter bad faith of the Republican caucus will galvanize the usually pusillanimous Democrats. We can hope for is a package of political and judicial reforms that includes a mandatory retirement age for federal judges and mandatory ethics obligations. Automatic voter registration, election day a federal holiday, abolish gerrymandering. Then Biden and Congress should do gun reform, immigration reform, climate change. Just get shit done. Fuck bipartisanship, fuck deliberation and especially fuck Lindsay Graham. Congress should also pass a law legalizing abortion. This will not stop the Court from overturning Roe or even overturning laws passed by Congress on federalism/commerce clause/ 2nd amendment grounds. But it will make clear to the whole country that we now have an ideologically committed judiciary. The Trump trio will rush in where O'Connor, Kennedy, Souter, Stevens and even Roberts feared to tread. Reversing the damage of the Trump era will take decades. Finally, even as I loathe the Republicans, I think Obama and RBG both deserve a fair share of blame for her not retiring to between 2012-4. This was a live risk both ignored and the country will suffer for it.