[Discussion] Ruth Bader Ginsburg: What Now? or How to stand on the shoulders of a diminutive GIANT.

Discuss her achievements, the consequences of the lack of RBG, and what we are going to do about it.

Badferret wrote:

Anti-Choice voters were already engaged and going to vote for Trump no matter what.

Hopefully, pro-choice, pro health care, pro women/civil/LGBTQ voters and non-voters are now motivated even if Biden wasn't their guy.

Otherwise, the door to Dumb Giliad is wide open.

The bolded part makes me realize that the Democrats finally do have a candidate.

RBG might not be technically on the ballot, but this is going to make it feel to people like this election is Trump vs. RBG. Like voting in this election is revenge for him trying to steal her seat.

Malor wrote:

People would have kept the really political stuff here anyway, Amoebic. You may have killed both threads by preventing the natural flow of conversation in this one.

I suppose this might end up being the new nomination catch-all, though.

That was kind of the idea.

I made the distinction because as the threads were confusing and there are people who did not want to go into D&D to wade through all that to comisetate. Since the conversation had started to already go off the rails in the first two pages from a typical RIP thread I asked to edit the topic so it could continue and not be so confusing.

Most forum activity pretty much "dies" every Friday and picks up again on Monday for this site anyway, please don't use that to try to guilt me for asking clarity on this.

Most forum activity pretty much "dies" every Friday and picks up again on Monday for this site anyway, please don't use that to try to guilt me for asking clarity on this.

Well, it's one the biggest news items of the last four years, and you have two mostly-dead threads, and at least superficially, they look like they were effectively strangled.

I didn't think the weekend effect had gotten that pronounced yet, but maybe that's it. Guess we'll find out.

Dead. Strangled. Killed. I'm sorry if the injustice of this request has impacted you enough to word this with that kind of language.

Someone asked to clarify the difference between duplicate threads, and I asked it we could do that here by changing the topic instead of locking a duplicate thread, which started as a RIP thread (and quickly moved on from that) which wasn't located in the usual spaces for RIP threads to begin with. Since the conversation had traction I asked if we could change the title instead of locking it since there was an ongoing conversation that seemed to be of interest.

The conversation is happening regardless in multiple places already (see post d&d news thread, etc) sorry to hear if the request to clarify intent of this particular duplicate thread was unsatisfactory for you.

ping

(Cross-posted from Political News Story)

dejanzie wrote:
JLS wrote:
trichy wrote:
Chumpy_McChump wrote:

Nothing is stopping them _now_. Precedent has been set; it’s not like if Democrats play “by the rules” Republicans will change their behavior.

So why didn't the Republicans add ten seats and pack them with Trump family members?

Need something to do in Trump's second term.

I'm against packing the court.

To be clear: anyone who still believes that the GOP is acting in good faith is a drivelling idiot and/or complicit, and the Dems should act accordingly. BUT if both parties start breaking norms to fit short-term strategic goals then the American Experiment is finished, period.

Your democracy could die anyway, as in the end norms and even laws are as potent as the elites want them to be, or when that fails how much the voters are willing to put up with. And frankly, both are failing right now - even if Trumpists only represent 30% of the population, that's insanely high seeing the GOP/Trump track record.

I really hope the Dems have a huge package of laws ready to codify everything we thought was illegal but turned out to be norm-based only. Sharing your tax records would be the most famous one, but the list is endless by now.

Granting statehood to DC and Puerto Rico is different, there are existing procedures for that.

The theory I'm following is that it comes down to political legitimacy: a democracy can only endure so long as the people being governed perceive that the institutions governing them have a legitimate claim on power on behalf of the people they're representing. Lose that and the only way the government stays in power is by other means: autocratic force, drawing on a minority to oppress the rest of the people, etc.

American political legitimacy has been shaky for a while. That was the crisis in 2016: the American system's flaws were exposed and bleeding, and there wasn't any consensus of what to do about it. (Ignoring the problems was one popular response.) Post 2016-election, enough people had reason to question the result that the bleeding got worse.

Note that this isn't about who won or whatever, this is about the perception of legitimacy: if enough people in a democracy believe something to be true, for political purposes it doesn't matter what that thing used to be. That's what it is now. That's why perception of legitimacy is so important for institutions in a democracy: everyone has agreed to compromise and abide by the rules under the understanding that even if we disagree about what to do we've at least agreed on how we plan to resolve those disputes.

The Republicans have been pushing hard against the rules for a while. (Some of them want to bring back Jim Crow, some of them want to establish a theocracy. Can't do either of those things under the present rules so the rules gotta change.)

The 2016 election cost legitimacy. I think at least some people are still underestimating how much, though the massive protests in the immediate aftermath point the a qualitative difference. W didn't have a clean victory, and not everyone accepted the results, but in general he was accepted as president. Trump immediately had "not my president." (Trump had been trying that exact thing on Obama, on the basis of his belief that black people aren't people, but in general the Republicans thought the election was fine, they just didn't like the results.)

It's tricky, in this situation, to separate what you want to have happen with what you think is a legitimate move.

McConnell denying Merrick Garland a hearing was playing by the rules but because it defied the norms (and sense of fair play) cost legitimacy. Ramming Kavanaugh through cost more legitimacy. Fighting the impeachment cost a heck of a lot of legitimacy. Putting a new justice on the Supreme Court before the election is within the rules but will cost even more legitimacy.

At a certain point people stop feeling like the government is legitimate and you have to ramp up the use of force and coercion to accept the government's actions. That's relatively easy in some cases: the Supreme Court striking down the Affordable Care Act later this year will most have its effects felt individually through bureaucratic unpleasantness or down the road when you die because you can't afford treatment. It's much harder for other things, and you end up having to shoot more people who are protesting you shooting people.

The options for the Democratic opposition, at this point, are all tradeoffs:

- Don't do anything. The American government as a whole loses legitimacy and future court decisions will have an increasing cloud of illegitimacy.

- Fight and prevent a nomination before the election. Probably preserves the most legitimacy overall, but the Republicans are unlikely to go along with it.

- Impeach the nominee after the election. Difficult. Probably won't happen. Costs legitimacy (but gains some of it back from people feeling better represented).

- Pack the court. The nine-justice rule isn't that important and it can be argued that it only lasted as long as it did in the 21st century because the Roberts Court tended to carefully play the middle ground. Switching to a norm that balances the interests of both parties might be the next stable equilibrium, though it also has issues.

- Add more states. Adds legitimacy (some Republicans will grumble), but doesn't directly affect the current situation. DC should be a state anyway. (And Puerto Rico if they want it.) Unlike the Republicans, I don't think that it's a sure thing that the senators from those places will always be from the Democratic party, but I think giving people representation in their government is the right thing to do.

There's a strong argument that the political legitimacy of the American Experiment was fatally wounded in February (at the latest) and that at this point we're seeing if there's a slim chance that the patient can be resuscitated.

Op-ed, The Nation: Packing the Court—or Taming the Courts?
To undo the damage of the Republican takeover of the judiciary, Democrats are going to have to fight for the primacy of democracy over the legal system.

With Republicans rushing to replace Ruth Bader Ginsburg on the Supreme Court, America stands on the brink of a legal revolution. A Trump-nominated judge taking Ginsburg’s seat—which could in theory be done even if Trump loses in November and the Democrats regain control of the Senate—would open the door for an unprecedented radical shift to the right. With Republican-nominated judges possessing a 6-3 supermajority on the Supreme Court, some of the wildest ideas of Clarence Thomas and the late Antonin Scalia, hitherto reserved for dissents, could now become the law of the land.
In the context of the current court, overturning Roe wouldn’t just mean reverting to the pre-Roe world of states setting abortion law. Rather, Roe is likely to be overturned in a decision that asserts fetal personhood, which would make it difficult for even the most liberal states to protect reproductive freedom.

In the realm of economic policy, the right-wing legal movement led by the Federalist Society has been champing at the bit to restore the principles of Lochner v. New York (1905). The Lochner decision held that laws against overtime work violated the 14th Amendment. Long regarded as obsolete by mainstream legal scholars, a reassertion of the validity of Lochner could render vast swaths of the economic and environmental regulations of the last century unconstitutional. It would mean overturning not just Obamacare but much of the political legacies of Woodrow Wilson, Franklin Delano Roosevelt, and Lyndon Johnson.

Writing in The Atlantic, legal scholars Ryan D. Doerfler and Samuel Moyn make a compelling case for a politics focused on taming the courts, rather than just expanding the number of judges: “There are two basic types of reform,” they argue. “One type adjusts the personnel of the Supreme Court by adding justices, choosing them differently, or shortening their terms of office. The second kind disempowers the institution itself—removing certain cases from its jurisdiction, requiring a greater number of justices to agree in order to interfere with democratic choices, or letting Congress override any glaring mistakes.”

Anyone trying to justify not doing whatever it takes to swing the SCOTUS back towards the Democrats are playing right into McConnell's hands. He revels in Democrats doing the "we go high when they go low" since he knows that he will ultimately win.

He doesn't care about the PR hits his caucus gets if they control the courts for three decades.

Let's fight as hard as RGB did and not ever give up.

The Resistance has joined the fight

https://mobile.twitter.com/AnaKaspar...

I’m not very keen on adding S.C. justices, simply because it sets a pretty poor precedent; however, there is little doubt that the legislature has its hands full if they plan to overhaul executive overreach and judicial partisanship.

For the SC, there are a lot of ways to go about this — 1) enact age limits (and thereby term limits) — no one under 45 or over 75 can sit as a justice. This allows for a more controlled transfer of power because there’s a lower chance of one dying while in service.
—2) Consider a pool of Supreme Court judges, like 18 or so, and require that those who have involvement with the legal issue personally at some point be required to recuse themselves from being seated and the other 9 justices are selected and seated randomly to overhear the cases. I don’t know how well this would actually work, but it would blunt the partisanship of all of this.
—3) require that the Senate to vet candidates and that it takes precedence over all other legislation except budget. If the senate majority leader refuses to vet the candidate, then it falls to the minority leader, who becomes the de facto majority leader for these proceedings since the majority leader has willingly ceded such power.

For the executive:
—1) Something has to be done about our AG position. I don’t even know what at this point, but Barr and Trump have shown that this position, which isn’t ‘supposed’ to be a partisan one is nothing more than a cudgel for the president to wield or withhold. I’d be ok with the position being filled by Congress at this point just as a check on executive power.
—2) closing the loopholes for temporary staff and cabinet members that aren’t vetted by the Senate. Man, this one has been abused terribly as well-Trump is putting in someone whose basically a suicide bomber to do something wildly inappropriate, get hammered for it and then be removed after all the damage has been done - a la DeJoy as our latest and greatest example.
—3) Create an enforcement arm (or add it to the US Marshals) for congress to enforce subpoenas and require testimony. If they want to take it through the courts, that’s fine - but you can sit in jail and pay a fine every day you’re there while you wait for it to wind through the system.

Man I don’t know. I’m just watching this whole thing crumble while Republicans smirk and more and more dark money flows into the political coffers that it might just be time to start the process of leaving. If I can hold on for two more years, I’m sure I can find a visa as an RN, a teacher, or a Firefighter somewhere.

I have some quick advice on this whole take

We should try to do this one...

BlackSheep wrote:

I’m not very keen on adding S.C. justices, simply because it sets a pretty poor precedent; however, there is little doubt that the legislature has its hands full if they plan to overhaul executive overreach and judicial partisanship.

Because not everyone has the privilege of doing this one.

BlackSheep wrote:

Man I don’t know. I’m just watching this whole thing crumble while Republicans smirk and more and more dark money flows into the political coffers that it might just be time to start the process of leaving. If I can hold on for two more years, I’m sure I can find a visa as an RN, a teacher, or a Firefighter somewhere.

Republicans have shown they need zero precedent to shred norms and go full fascist, so I reject entirely the pearl clutching about "setting a poor precedent". It entirely ignores the reality on the ground all for some limp notion of manners that no longer exist.

Yep Democrats either need to stop bringing a (fake plastic) knife to a gun fight, or ban some guns after they take the Senate. Can't let Mitch or some other asshole get away with sh*t like this again.

DSGamer wrote:

I have some quick advice on this whole take

We should try to do this one...

BlackSheep wrote:

I’m not very keen on adding S.C. justices, simply because it sets a pretty poor precedent; however, there is little doubt that the legislature has its hands full if they plan to overhaul executive overreach and judicial partisanship.

Because not everyone has the privilege of doing this one.

BlackSheep wrote:

Man I don’t know. I’m just watching this whole thing crumble while Republicans smirk and more and more dark money flows into the political coffers that it might just be time to start the process of leaving. If I can hold on for two more years, I’m sure I can find a visa as an RN, a teacher, or a Firefighter somewhere.

No, most people don’t. I’m pretty wedded to my community and I love where I live. I had planned on expatting away anyway when I retire simply due to health care issues here and a lower cost of living. I’m in a profession that is three times as likely to get cancer than the national average and 127% more likely to get brain cancer than the national average. Yes, there are some rickety laws that support cancer that can be traced to firefighting being covered, but they’re difficult to navigate for coverage and often come too little too late to be of any use to the firefighters I’ve known or their families as they fight to prove the possibility of those cancers originating with the work while their entire savings are wiped in pursuit of treatment.

Michelle Alexander's The New Jim Crow breaks this down the patterns of American facist development from a racial perspective and what that trajectory his looked like in the past. Though prompted to read it from the BLM book club list, it does a really good job of describing the precedent for what is going on right now in the United States socially and politically.

538 had a piece this weekend, that basically said that the Senate as currently set up will always favor minority/rural needs and therefore adding DC and PR as states would likely have a more lasting impact on the courts.

However, given the last 40 years of power politics, I say why not both. Add four more Democratic Senators AND pack the court.

I say we take off and nuke the site from orbit. It's the only way to be sure.

I'm actually not too keen on setting up laws to prevent the next Trump, because I feel like they'll be the worst of both worlds: when the Republicans are out of power, any law they can't use in bad faith to sink the Democrats will also be a law too weak to restrain them when they are back in power.

By the time you turn around 200+ years of an accidental nation-state like America, I feel like the current danger will either be past or will have triumphed. I'd much rather put effort into empowering the anti-Trump to keep the pro-Trump out of power.

As for precedent? Who actually gives a sh*t about stuff like 'precedent'. Most people in this world only care about whether their kids have a better chance at a happy life than they did, and don't give much of a crap about how you get there. Certainly not about abstract thought experiments like 'precedent'.

Besides, I feel like anyone operating in good faith would be willing to reinstall any 'precedents' once this is all over. Anyone acting in good faith would look at these times and say "yeah, norms are for normal times, and those were not normal times."

Any future Republican Party that won't look back on these times and say "hey, you Democrats went too far, but those were crazy ass times, so let's just start over" is NOT a Republican Party that has learned its lesson, and cannot be trusted with power anyway.

In contrast, I don't think the previous norms are going to come back. Within the next eight years, the American system of government is going to be significantly different: either a white-supremist autocracy or a radically overhauled configuration of political order. We're running out of space for the middle-ground.

The old ways are dead but we're still coming to terms with what that means.

The past forty years have poured a lot of glue in the machinery of American democracy. (A bunch of that was deliberate glue-pouring by sore losers over school segregation.) The mechanisms we could have used to course correct have stopped functioning.

One thing that the right-wing likes to bring up is that Roe v. Wade (And Brown v. Board of Education, but they won't say that one out loud) were decided by the courts, rather than by law--i.e. the law protected the minority against the majority's bigotry. This is mostly nonsense, but the one thing it does have is that certain rights would be far more firmly established if there was a more explicit codification. If our constitutional amendment process wasn't broken, a lot of the national conversation could have been settled peacefully. If Congress wasn't deliberately deadlocked, we could have passed laws that everyone agreed on.

Instead, we stick to the rules because those are the rules. Why do we still have the Electoral College? Because when it isn't contentious there isn't enough political will to change the machinery, and when it is contentious it's too close to the event to get enough people to agree to change the rules.

One approach is to strip legitimacy from both the executive and the courts and recenter the balance of power in Congress instead of the other two branches, probably accompanied by making Congress more representative. That might work, but it'll be opposed by people married to the status quo (Democratic leadership), people entrenched in power (Republican politicians), rich landowners who control rural real-estate (who the current system over-favors), and the white supremacists and theocrats who are trying to build an exclusionary apartheid nation-state.

The theocrats scare me the most, probably because I used to be one.

BlackSheep wrote:

I’m not very keen on adding S.C. justices, simply because it sets a pretty poor precedent; however, there is little doubt that the legislature has its hands full if they plan to overhaul executive overreach and judicial partisanship.

For the SC, there are a lot of ways to go about this — 1) enact age limits (and thereby term limits) — no one under 45 or over 75 can sit as a justice. This allows for a more controlled transfer of power because there’s a lower chance of one dying while in service.
—2) Consider a pool of Supreme Court judges, like 18 or so, and require that those who have involvement with the legal issue personally at some point be required to recuse themselves from being seated and the other 9 justices are selected and seated randomly to overhear the cases. I don’t know how well this would actually work, but it would blunt the partisanship of all of this.
—3) require that the Senate to vet candidates and that it takes precedence over all other legislation except budget. If the senate majority leader refuses to vet the candidate, then it falls to the minority leader, who becomes the de facto majority leader for these proceedings since the majority leader has willingly ceded such power.

For the executive:
—1) Something has to be done about our AG position. I don’t even know what at this point, but Barr and Trump have shown that this position, which isn’t ‘supposed’ to be a partisan one is nothing more than a cudgel for the president to wield or withhold. I’d be ok with the position being filled by Congress at this point just as a check on executive power.
—2) closing the loopholes for temporary staff and cabinet members that aren’t vetted by the Senate. Man, this one has been abused terribly as well-Trump is putting in someone whose basically a suicide bomber to do something wildly inappropriate, get hammered for it and then be removed after all the damage has been done - a la DeJoy as our latest and greatest example.
—3) Create an enforcement arm (or add it to the US Marshals) for congress to enforce subpoenas and require testimony. If they want to take it through the courts, that’s fine - but you can sit in jail and pay a fine every day you’re there while you wait for it to wind through the system.

Man I don’t know. I’m just watching this whole thing crumble while Republicans smirk and more and more dark money flows into the political coffers that it might just be time to start the process of leaving. If I can hold on for two more years, I’m sure I can find a visa as an RN, a teacher, or a Firefighter somewhere.

first bit: this is exactly how district and appeals courts operate

second bit: This literally already exists precisely how you describe it, the Sergeants at Arms, they simply opt not to use it because 'decorum'

Romney supports filling the seat.

Gremlin wrote:

One approach is to strip legitimacy from both the executive and the courts and recenter the balance of power in Congress instead of the other two branches, probably accompanied by making Congress more representative. That might work, but it'll be opposed by people married to the status quo (Democratic leadership), people entrenched in power (Republican politicians), rich landowners who control rural real-estate (who the current system over-favors), and the white supremacists and theocrats who are trying to build an exclusionary apartheid nation-state.

The theocrats scare me the most, probably because I used to be one.

I feel like if you've got the power to make Congress both more powerful and more representative over that kind of opposition, you'll already be in a position to deny them the Presidency. As for fixing the Courts, I'm not sure there's much of a difference between court packing and jurisdiction stripping if you've also got a lock on the Presidency and the Congress.

Really, I feel like it all comes down to whether Democrats can keep Latinos in the coalition long enough for the Republican Party to collapse. If you can keep the Republicans from making Latinos into The Next White People, then Demographics will actually be Destiny.

Chairman_Mao wrote:

Romney supports filling the seat.

Of course he does. If you think any of these asshats are not party above country, you haven't been paying attention. They will bitch and complain about feeling "conflicted" a little for the cameras, then they will vote to make sure it still goes on as it should.

Elections have consequences. If Biden wins, he better push as much as he can as fast as he can - and screw if Minority Leader McConnell whines about "precedent".

At least Romney never complained about feeling conflicted this time!

I am at the point where the best-case outcome (or least terrifying in this case) I can foresee is a conservative justice is appointed. My worst case scenario (which I think is very much a possibility) is that this issue drives conservative voter turn out enough to maintain a republican majority in the senate and reelect President Trump.

Edited because I meant a senate majority, not White House.

cheeze_pavilion wrote:

Really, I feel like it all comes down to whether Democrats can keep Latinos in the coalition long enough for the Republican Party to collapse. If you can keep the Republicans from making Latinos into The Next White People, then Demographics will actually be Destiny.

This used to be a source of optimism for me: "demographics is destiny" and minority groups will soon make up the majority in the US. Felt like the cavalry was coming and we just need to hold on until they get here.

Seeing how Trump is actually doing better among Latino voters now than he was in 2016 despite four years of Stephen Miller-led, blatantly white supremacist immigration policies is not instilling me with much hope in this regard any more.

thrawn82 wrote:
BlackSheep wrote:

I’m not very keen on adding S.C. justices, simply because it sets a pretty poor precedent; however, there is little doubt that the legislature has its hands full if they plan to overhaul executive overreach and judicial partisanship.

For the SC, there are a lot of ways to go about this — 1) enact age limits (and thereby term limits) — no one under 45 or over 75 can sit as a justice. This allows for a more controlled transfer of power because there’s a lower chance of one dying while in service.
—2) Consider a pool of Supreme Court judges, like 18 or so, and require that those who have involvement with the legal issue personally at some point be required to recuse themselves from being seated and the other 9 justices are selected and seated randomly to overhear the cases. I don’t know how well this would actually work, but it would blunt the partisanship of all of this.
—3) require that the Senate to vet candidates and that it takes precedence over all other legislation except budget. If the senate majority leader refuses to vet the candidate, then it falls to the minority leader, who becomes the de facto majority leader for these proceedings since the majority leader has willingly ceded such power.

For the executive:
—1) Something has to be done about our AG position. I don’t even know what at this point, but Barr and Trump have shown that this position, which isn’t ‘supposed’ to be a partisan one is nothing more than a cudgel for the president to wield or withhold. I’d be ok with the position being filled by Congress at this point just as a check on executive power.
—2) closing the loopholes for temporary staff and cabinet members that aren’t vetted by the Senate. Man, this one has been abused terribly as well-Trump is putting in someone whose basically a suicide bomber to do something wildly inappropriate, get hammered for it and then be removed after all the damage has been done - a la DeJoy as our latest and greatest example.
—3) Create an enforcement arm (or add it to the US Marshals) for congress to enforce subpoenas and require testimony. If they want to take it through the courts, that’s fine - but you can sit in jail and pay a fine every day you’re there while you wait for it to wind through the system.

Man I don’t know. I’m just watching this whole thing crumble while Republicans smirk and more and more dark money flows into the political coffers that it might just be time to start the process of leaving. If I can hold on for two more years, I’m sure I can find a visa as an RN, a teacher, or a Firefighter somewhere.

first bit: this is exactly how district and appeals courts operate

second bit: This literally already exists precisely how you describe it, the Sergeants at Arms, they simply opt not to use it because 'decorum'

Unfortunately, the US Capitol police, which he oversees don’t have anywhere that they will bring in lawfully subpoenaed individuals to testify in front of Congress; their (and his duty) primarily falls on safeguard and protection of the sitting members of Congress. In fact, I mention the US Marshals because it would be jurisdictionally more appropriate for them to handle serving and arresting those that flaunt the summons whereas, I’m not sure the US Capitol Police have any jurisdictional control outside of DC without having to work with interagency groups.

gewy wrote:
cheeze_pavilion wrote:

Really, I feel like it all comes down to whether Democrats can keep Latinos in the coalition long enough for the Republican Party to collapse. If you can keep the Republicans from making Latinos into The Next White People, then Demographics will actually be Destiny.

This used to be a source of optimism for me: "demographics is destiny" and minority groups will soon make up the majority in the US. Felt like the cavalry was coming and we just need to hold on until they get here.

Seeing how Trump is actually doing better among Latino voters now than he was in 2016 despite four years of Stephen Miller-led, blatantly white supremacist immigration policies is not instilling me with much hope in this regard any more.

Be very wary of the Latinx numbers. Any real movement in the numbers is probably made up entirely by Cuban Americans drifting back to their normal Republican leaning levels. Nationally, Hispanic or non Cuban LatinX numbers can be harder to gauge in national or even state level polling.