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U.S. Politics: Here At the End of All Things


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19 minutes ago, Ser Scot A Ellison said:

What would you have me do?  I believe in the law.  I believe the law should be blind and apply equally to all of us.

I vehemently oppose Barrett’s nomination for reasons I have previously stated.  I believe McConnell’s actions are making a bad situation much, much worse.

What would you have me do, that I can do?

But the law isn't blind.

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13 minutes ago, Kalibear said:

In this case, the obvious thing is to ignore the previous ideas of judges not making claims on existing cases and force them to state their viewpoints on a number of decided cases as if they were the judges on that case.

There are two objections to this, one theoretical and one practical. The theoretical one is that they can't know how they would decide a case without actually being on that case. Judges generally do not immediately know how a case will go; they hold hearing, have clerks do research and then debate it among themselves. There are quite a few cases where the more important constitutional issue is not addressed at all and the case is decided based on some technicality.

The practical objection is that to force them to do anything, you need control of the Senate (or, at nomination time, of the presidency).

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Just now, Altherion said:

There are two objections to this, one theoretical and one practical. The theoretical one is that they can't know how they would decide a case without actually being on that case. Judges generally do not immediately know how a case will go; they hold hearing, have clerks do research and then debate it among themselves. There are quite a few cases where the more important constitutional issue is not addressed at all and the case is decided based on some technicality.

So? Students do this all the time - take the actual case complete with witness testimony, arguments, etc, and make their own decision. This is literally something done by every single law student. I'm not asking them to do a hypothetical at the hearing - I'm asking that they actually do write out a decision for existing cases. 

Just now, Altherion said:

The practical objection is that to force them to do anything, you need control of the Senate (or, at nomination time, of the presidency).

Yeah, I side a bit with @Ser Scot A Ellison here in that there's nothing really to be done about Barrett right now. The best you can do is minimize the damage she can do by packing the courts very quickly, and then putting in your laws that this can only be overturned by certain supermajorities. But I think it's also really important to start talking about how the law is not blind, the law is not fair, the law is not reasonable, and acting as if it is is simply playing into the systemic oppression. Every time that's said, someone out there just got fucked over by that law while you say 'but my hands are tied'. 

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Hilarious. Speech 101 for POTUS.

The USC tracker has Biden up 12.68, by the by, he's been steadily expanding his lead since they corrected their data error that went back into mid-September. And The Economist has him now at a 91% chance to win the electoral college.

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12 minutes ago, Kalibear said:

The best you can do is minimize the damage she can do by packing the courts very quickly, and then putting in your laws that this can only be overturned by certain supermajorities. But I think it's also really important to start talking about how the law is not blind, the law is not fair, the law is not reasonable, and acting as if it is is simply playing into the systemic oppression. Every time that's said, someone out there just got fucked over by that law while you say 'but my hands are tied'.

The drawback of packing the court (and the reason it hasn't been tried for a while) is that you can't really stop the other side from doing the same thing next time they have united control of the government. Congress can make a law that requires future court packing to require a supermajority (or simply prohibits it altogether), but of course the first thing the future Congress will do is repeal that law and then get on with the court packing. You need a constitutional amendment to make a supermajority provision stick.

I don't think anyone who has followed any politics at all or even just seen the treatment of rich people who have broken the law can think that the law as a whole is blind, fair or reasonable. However, regardless of what you think of the law, your hands are tied.

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Interesting. 

As has been said many times, it only ever takes 4 justices to agree to hear a case. So it's not just Roberts, at least one more conservative justice doesn't want to make too many waves right now; my guess is Kavanaugh. There's been a fair amount of evidence that Kavanaugh follows Roberts' lead on "integrity of the court" kind of issues. We'll see how long this lasts though; especially once Barrett is on the court too. Once these kinds of cases get heard, it's hard to imagine Roberts being able to thread the needle on merits in a way that can maintain a majority that includes at least 1 liberal justice.

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7 minutes ago, Altherion said:

The drawback of packing the court (and the reason it hasn't been tried for a while) is that you can't really stop the other side from doing the same thing next time they have united control of the government. Congress can make a law that requires future court packing to require a supermajority (or simply prohibits it altogether), but of course the first thing the future Congress will do is repeal that law and then get on with the court packing. You need a constitutional amendment to make a supermajority provision stick.

Don't care, and punish them. The alternative - waiting 40 years for people to die while they fuck things over - is not acceptable. 

7 minutes ago, Altherion said:

I don't think anyone who has followed any politics at all or even just seen the treatment of rich people who have broken the law can think that the law as a whole is blind, fair or reasonable. However, regardless of what you think of the law, your hands are tied.

They are not; there are a lot of things that can be done. See the article I linked. The important thing is to make the political will to do it. 

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9 minutes ago, Kalibear said:

Don't care, and punish them. The alternative - waiting 40 years for people to die while they fuck things over - is not acceptable. 

They are not; there are a lot of things that can be done. See the article I linked. The important thing is to make the political will to do it. 

Impose a retirement age of 75 years and you will get rid of Alito and Thomas in four years.  That's the smart play.  

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Just now, Gaston de Foix said:

Impose a retirement age of 75 years and you will get rid of Alito and Thomas in four years.  That's the smart play.  

I'm not sure what laws are passed to do retirement or term limits, honestly. I'd support that too. 

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1 minute ago, Gaston de Foix said:

Impose a retirement age of 75 years and you will get rid of Alito and Thomas in four years.  That's the smart play.  

This isn't a bad idea, but wouldn't this also have to be done through a constitutional amendment? 

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3 minutes ago, Ormond said:

This isn't a bad idea, but wouldn't this also have to be done through a constitutional amendment? 

Yes, I think it would require an amendment:

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

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Since Texas is the only swing-ish state that doesn't allow no-excuse absentee ballots, most Democrats had to wait until early voting started to cast their ballots.  Voting started today in Harris county (Houston), and the initial turnout is very impressive.

Quote

It took about half a day for Harris County to match its record for the number of ballots cast on the first day of early voting.

The record was just under 68,000 people, set on the first day of the 2016 presidential election, according to the clerk’s office. The county hit that mark around 1:40 p.m. Tuesday, with more than five hours of voting left to go.

68,000 votes in one morning and one county.  Plus when I check their website, it looks like most of their locations report a wait of "Less than 20 minutes", which is the lowest.  So that's encouraging.  I remain skeptical that this is the year for Texas, but it's yet another indication of strong Democratic enthusiasm in response to Republican voter suppression. 

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6 minutes ago, Ormond said:

This isn't a bad idea, but wouldn't this also have to be done through a constitutional amendment? 

No,  Congress has the power to regulate the Art. III branch:  

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The problem (as DMC and I have discussed before) is that they hold their seats for "good behavior" which some have interpreted to suggest means a lifetime appointment.  I don't agree and I think in fact the number of judges who have died while on the Bench and the others who have become impaired but unable to retire is a potent reason for an age limit (which pretty much every other country in the world has for their highest Court).  But it will depend ultimately on the SC's interpretation of that clause.  

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The constitution promises federal judges will hold their offices so long as they are under "good behaviour".  It would be unconstitutional to mandate a retirement age.

But you can very probably set an age by which they must become senior judges, where they will continue to hold office as judges, receive their salary, and so on, but will no longer sit formally on a court, thus creating a vacancy. It's been suggested that in the case of senior judges who were on the Supreme Court they could fill in on cases in lower courts if there are recusals or vacancies.

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1 minute ago, Ran said:

The constitution promises federal judges will hold their offices so long as they are under "good behaviour".  It would be unconstitutional to mandate a retirement age.

But you can very probably set an age by which they must become senior judges, where they will continue to hold office as judges, receive their salary, and so on, but will no longer sit formally on a court, thus creating a vacancy. It's been suggested that in the case of senior judges who were on the Supreme Court they could fill in on cases in district or appellate courts if there are recusals or vacancies.

This already happens.  Former judges like David Souter sit on the First Circuit from time and time and maintain chambers in the Court: https://www.scotusblog.com/2016/05/scotus-for-law-students-retired-justices/

It's the reform to adopt as an alternative to court packing which is a constitutional aberration and a bad idea.  

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7 minutes ago, Gaston de Foix said:

This already happens.  Former judges like David Souter sit on the First Circuit from time and time and maintain chambers in the Court: https://www.scotusblog.com/2016/05/scotus-for-law-students-retired-justices/

It's the reform to adopt as an alternative to court packing which is a constitutional aberration and a bad idea.  

I like that.  That really might work.

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As to Thomas and Alito, Thomas would (in this hypothetical) leave his place in the court in 2023. Which is fine. But Alito is in 2025, which does mean you don't really know who will hold office then. And of course Breyer would be forced to move immediately (but presumably he'll be doing that if Biden wins anyways). 

There's this one proposal of 15 justices -- 5 from the GOP, 5 from the Democrats, and 5 selected by the judges unanimously -- but I don't see how you get around the Constitution which vests only the President with the role of nominating justices.

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9 minutes ago, Ser Scot A Ellison said:

I like that.  That really might work.

No, it probably wouldn't, because someone would sue and presumably the conservative SCOTUS would strike it down. 

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Any scheme meant to change the ideological balance of the court risks reprisal once Republicans are back in power, even if we think it's particularly clever or roundabout. Democrats need to accept that risk or else accept having an ideologically conservative court thwart them in everything they do for the next 30 years. Let the court be a political football (it's already a sham), let its size balloon into the dozens as the parties trade power and pack it in turn. Better that than accepting the conservative stranglehold for the foreseeable future.

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9 minutes ago, Kalibear said:

No, it probably wouldn't, because someone would sue and presumably the conservative SCOTUS would strike it down. 

I don't think they would, especially if Congress were to clean up some of the statutory language suggested here. Senior judges are actually quite common and very useful, and declaring them all illegitimate would create havoc -- the article I linked earlier mentioned that senior judges handle about 20% of the total caseload right now, and if you call them all illegitimate, well, that's a massive blow to the ability of the judiciary to be able to function.

 

ETA: On a separate note, apparently Travis County in Texas has registered 97% of all eligible voters, which is apparently a real record. It's one of the deep blue counties in Texas. I don't think we're going to see a lack of enthusiasm in Texas.

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