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The Future of the Supreme Court (Page 10)
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subego  (op)
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May 19, 2021, 08:52 AM
 
Originally Posted by Thorzdad View Post
It kind of depends on how narrowly the decision is written. If the court finds that 15 weeks isn't an undue burden, that will signal to other states to set even more stringent limits, eventually to test how stringent can the limits be? 14 weeks? 12? 8? At some point, you run into a timespan where the mother doesn't yet know she's pregnant. Eventually, you end up with a defacto end of Roe. But, that takes time, and many more court cases.

On the other hand, if the conservatives on the court decide to broadly find that the state is within its right to set whatever time limits it wants, that will be the end of Roe in many states, without actually striking it down.
In recent history, the conservatives on the court have let Alito be their abortion point-man. His position has consistently been a restriction that violates Casey is not okay, and to my eyes he’s always made a good faith effort at interpreting Casey.

Casey itself is a bit of a freak show of a case. It confuses the **** out of me, and I have limited understanding of it. I have no idea how the undue burden framework set up in Casey addresses the questions this particular case brings up.

Now, it needs to be stressed that in none of the cases did he have to consider the validity of Casey itself. If that happens, all bets are obviously off.
     
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May 19, 2021, 10:03 AM
 
With only one clinic in the state, likelihood is that appointments are hard to come by, plus the woman has to drive several hours to get there, take time off work... snipping a week off the available time will have effects, and one snip is a slippery slope. Like Thorzdad said, you will run into that "am I just late again or am I pregnant" timespan.
     
subego  (op)
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May 19, 2021, 02:31 PM
 
Whether it’s a slippery slope (or how slippery) depends on how the decision interprets the rules in Casey. That could go either way.

I’d be curious about what percentage of capacity the the clinic is at. I dug up 2018 numbers, and they were averaging 2.7 (non-chemical) per day.

Chopping off a week would have affected somewhere between 25-100 cases out of 3,005 total that year (this total includes both chemical and non).

If it is a slippery slope, it’ll have to contend with that number getting higher and higher with each week chopped off. Week 15 is probably closer to 25 than 100. Week 12 is probably over 100.
     
subego  (op)
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May 19, 2021, 09:09 PM
 
Read a little more of the Appeals Court decision. A doctor from the clinic testified they do 52 abortions a year at 15 weeks or later. I think that’s all of them, rather than just elective ones, which are the only ones relevant to the case. As an added detail, the clinic will perform an abortion after 16 weeks for health reasons, their 16 week cutoff is only for elective ones. In 2018, there were 4 post-16 week examples.

I also took a look at the law itself.

http://billstatus.ls.state.ms.us/doc...9/HB1510SG.pdf

One thing to note about it is it’s what’s known as severable, which means if a court finds a part it to be unconstitutional, the rest of the law stays in force. This was Alito’s big beef with Hellerstedt. The law under review in that case was also severable, and rather than severing the unconstitutional parts, the majority just flipped the entire law.

There’s not a whole lot to this law though, so there might not be too big a role for that to play.
( Last edited by subego; May 19, 2021 at 09:35 PM. )
     
subego  (op)
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May 19, 2021, 09:31 PM
 
Oh... I forgot the important part from the Appeals Court decision. It refers to what they consider the relevant part of the Casey test, which is “no pre-viability bans, full stop”. I’m noodling over what angle I’d work if I was trying to get around that.
     
subego  (op)
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May 19, 2021, 10:15 PM
 
So, in this post, I gave a rundown of an abortion case Kavanaugh presided over as an appeals judge.

If I’ve counted my weeks right, Kavanaugh’s opinion was that forcing the plaintiff to wait until 15-and-a-half weeks was kosher.


Edit: and the plaintiff argued making her wait jeopardized her health because of the risks involved when that far along.
     
Thorzdad
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May 20, 2021, 07:36 AM
 
Meanwhile, over in Texas...
The new legislation also allows Texas citizens to sue abortion providers or anyone who helped someone obtain an abortion after a fetal heartbeat was detected for up to $10,000 for every abortion performed, even if the individual had no connection to the person who obtained the abortion.
     
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May 20, 2021, 12:03 PM
 
I don't see how a state can grant standing to uninvolved people. In order to sue over anything, you must show how you are personally affected.
     
subego  (op)
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May 20, 2021, 12:41 PM
 
I see that law getting slapped with an injunction before it even takes effect.
     
Thorzdad
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May 20, 2021, 01:21 PM
 
Originally Posted by reader50 View Post
I don't see how a state can grant standing to uninvolved people. In order to sue over anything, you must show how you are personally affected.
I think they see it as akin to aiding, or having knowledge of, a murder. I'm pretty sure something similar is on the books in another state, only that law states that anyone can stop an abortion from happening, even if they aren't in any way involved. Dunno if it's been blocked, though.
     
subego  (op)
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May 20, 2021, 01:23 PM
 
Was able to go a little deeper with the Mississippi case.

My revised prediction is things will center around what constitutes a regulation, which Casey allows, versus a ban, which it doesn’t.

The Appeals Court decided any prohibition of an elective, pre-viability abortion is a ban and not a regulation.

I don’t think that’s what the Supreme Court was going for when they designed the Casey test, and if it was, it needs to be reinterpreted, because that’s utterly horrific.
     
subego  (op)
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May 23, 2021, 09:58 AM
 
Originally Posted by Thorzdad View Post
...that will signal to other states to set even more stringent limits, eventually to test how stringent can the limits be? 14 weeks? 12? 8?
Originally Posted by Thorzdad View Post
Two points.

The second post is strong evidence other states don’t need a signal. They’ll just try it anyway.

While I’m not aware of a law as restrictive as this Texas one the Supreme Court could pick up right now, there are ones available which are more restrictive than the one they picked. I think it’s notable they didn’t pick a more restrictive example, or didn’t wait for something wildly restrictive like this Texas law.
     
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May 23, 2021, 07:17 PM
 
Has there been any more noise about expanding the SC?
I have plenty of more important things to do, if only I could bring myself to do them....
     
subego  (op)
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May 23, 2021, 08:34 PM
 
Nothing that I’ve heard about, but I’ve only been halfway listening since I don’t like the idea and it makes me grumpy.

My assumption is the Democrats made their threat, and are now waiting to see how the conservatives on the Court react. The ball is in their court as it were.

My assumption is also if the Democrats end up trying, the conservatives on the Court will just flip it.
     
reader50
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May 23, 2021, 08:38 PM
 
Expanding the court is not possible today. Because Dems don't have 60 in the Senate to overcome a filibuster. And they don't have even 50 votes to abolish the filibuster. Biden is opposed to repealing, so Dems cannot even count on Kamela's tiebreaker vote.

However, the Court conservatives should be concerned. If they did something outrageous, all Senate Dems could get on board (with Kamela) to repeal the filibuster. Then expand the court as much as they liked. So the conservatives don't have a free hand to do absolutely anything.
     
subego  (op)
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May 23, 2021, 09:57 PM
 
The only thing staying their hand is removal via conviction by the Senate. They can flip anything else the other two branches throw at them.
     
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May 24, 2021, 02:06 AM
 
Originally Posted by subego View Post
The only thing staying their hand is removal via conviction by the Senate. They can flip anything else the other two branches throw at them.
reader's point as I understand it is that there is no constitutionally fixed number of seats on the Supreme Court. If the Supreme Court did something outrageous, this could tip over hesitant Democratic senators. Once that happens, Democrats could end the filibuster, add seats and shift the balance of the court this way. That could end the current conservative majority.

Since the number is seats is a regular law passed by Congress, all it takes is a simple change of law, not an amendment to the US Constitution. The Supreme Court would have no constitutional grounds to object to the law that changes the number of seats.
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subego  (op)
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May 24, 2021, 10:27 AM
 
Originally Posted by OreoCookie View Post
If The Supreme Court would have no constitutional grounds to object to the law that changes the number of seats.
They don’t need constitutional grounds to object. They can literally write “nanny-nanny boo-boo” as justification for an opinion, and the decision becomes the law of the land regardless.
( Last edited by subego; May 24, 2021 at 11:22 AM. )
     
subego  (op)
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May 24, 2021, 12:16 PM
 
Further, I’d put money on the Court unanimously flipping any attempt to stuff because they’d all see it as an attack on the integrity of the institution... and they’d be right.

We have a system for rebalancing the Court. That system is removal by the Senate, or waiting for justices to retire/die.
( Last edited by subego; May 24, 2021 at 12:36 PM. )
     
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May 24, 2021, 01:56 PM
 
SCOTUS has no say or power of review when it comes to adding more justices. As there is no defined number of justices set in the Constitution, it's out of their perview. It's entirely for Congress to decide. Congress would have to pass a bill that allows for additional justices, which has an extremely slim chance of ever going anywhere. If Congress did happen to pass such a bill, the President would still have to nominate justices, and the Senate would have to do their advise and consent dance to approve/disapprove the nomination.
     
subego  (op)
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May 24, 2021, 02:34 PM
 
They have the power of review over the government getting sued.

The stuffing law gets passed, someone sues the government over it, the Court grants the case a writ, and then they hack the stuffing law into tiny little pieces.

In the “rock-paper-scissors” game of government branches, Judicial always beats Legislative and Executive, unless Legislative can throw a removal.
( Last edited by subego; May 24, 2021 at 03:16 PM. )
     
Thorzdad
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May 24, 2021, 04:48 PM
 
You cannot sue “the government” because of an act Congress passes. The government enjoys sovereignty. Generally, citizens can only sue individuals or agencies within the government, under tort law, over matters where they have suffered actual loss or injury.

A party that has standing can, of course, challenge the constitutionality of a law. But, again, expanding the court isn’t a constitutional matter (or even a law, really. It’s more like housekeeping) There’s also the issue of someone somehow being judged to have standing in the matter in the first place. Who would be injured or experience loss by an expansion of the court?
     
subego  (op)
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May 24, 2021, 07:05 PM
 
More precise language would have been for me to have called it a “bill”, and say “the bill gets challenged in court”.

Whether a party has standing to challenge a bill is a decision made by the courts, which puts it under the direct purview of the Supreme Court, no?

Once the Supreme Court has it they can tear the bill apart regardless of whether anyone else thinks they have justification.

Like I said, the system is rigged so if the Legislature picks a fight with the Judicial branch, Judicial always wins, unless the Senate has the votes to start removing justices.
( Last edited by subego; May 24, 2021 at 11:11 PM. )
     
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May 24, 2021, 07:13 PM
 
Originally Posted by subego View Post
They don’t need constitutional grounds to object. They can literally write “nanny-nanny boo-boo” as justification for an opinion, and the decision becomes the law of the land regardless.
Two things here: the case would have to reach the Supreme Court first. Who has standing to sue here? The GOP? I don’t think so. States? Can’t see how. And if that were to happen, that conflict would likely tear the fabric of the American system apart. Plus, I have the suspicion that at least some of them, e. g. Justice Gorsuch and Chief Justice Roberts would not go along.
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subego  (op)
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May 24, 2021, 07:19 PM
 
It doesn’t matter who has standing. Anyone can try, and work the appeals process up to the Supreme Court. The Supreme Court can say the party has standing regardless of whether they actually do or not.

To reiterate what I said before, I’d bet on all 9 justices being against the idea because they’d all see it as a grossly partisan attack on the integrity of the institution.
( Last edited by subego; May 24, 2021 at 11:08 PM. )
     
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May 25, 2021, 12:55 AM
 
Originally Posted by subego View Post
It doesn’t matter who has standing. Anyone can try, and work the appeals process up to the Supreme Court. The Supreme Court can say the party has standing regardless of whether they actually do or not.
I don’t think it is as easy as you make it sound. AFAIK with extremely few exceptions (if memory serves conflicts between states over shared territory like rivers are an exception), you have to make your way through the court system. And you can’t just appeal without end until it reaches the Supreme Court.
Originally Posted by subego View Post
To reiterate what I said before, I’d bet on all 9 justices being against the idea because they’d all see it as a grossly partisan attack on the integrity of the institution.
Against what? Against adding seats to the Supreme Court?
And even if they hated the idea, does that give them the right to override the legislature?
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subego  (op)
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May 25, 2021, 09:03 AM
 
Originally Posted by OreoCookie View Post
I don’t think it is as easy as you make it sound. AFAIK with extremely few exceptions (if memory serves conflicts between states over shared territory like rivers are an exception), you have to make your way through the court system. And you can’t just appeal without end until it reaches the Supreme Court.
The process I was describing was,

1) Submit a case to the District court
2) The loser of 1 makes an appeal to the Circuit court
3) The loser of 2 asks the Supreme Court to grant a writ
4) If the Supreme Court grants the writ, the case comes before them.

There is no “appeal without end” here. The simplicity or lack thereof is irrelevant. The only thing that matters is would someone be willing to put in the effort to pursue the process to its conclusion. With the stakes this high, the answer to this question is an unqualified “yes”.


Edit: there are only two relevant questions for this part of the discussion.

Is there a way for the bill to enter the court system?

Once it’s in the court system, is there a way for the Supreme Court to get a hold of it?

I understand the answer to both of these questions to be yes.
( Last edited by subego; May 25, 2021 at 11:47 AM. )
     
subego  (op)
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May 25, 2021, 09:51 AM
 
Originally Posted by OreoCookie View Post
And even if they hated the idea, does that give them the right to override the legislature?
Are you asking whether there is a legitimate train of legal thought which would let them make the decision, or whether they need one?

The point I’ve been stressing is they don’t need one.

If I was on the Court, what I would offer as a legitimate train of legal thought would be like what I said before. The framers clearly indicated what degree of consensus they felt was required to change the direction of the Court. They did not believe it should be accomplished with a simple majority.

Further, stuffing makes an unapologetic mockery of the Court’s position as a check and balance against the legislature.

I would also argue there’s a legitimate train of legal thought which leads to the allowance of judicial activism in extreme circumstances. This would be an example of not only extreme circumstances, but the most extreme circumstances the Court has ever faced.
( Last edited by subego; May 25, 2021 at 11:51 AM. )
     
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May 25, 2021, 07:42 PM
 
Originally Posted by subego View Post
Are you asking whether there is a legitimate train of legal thought which would let them make the decision, or whether they need one?

The point I’ve been stressing is they don’t need one.
Sure. They can also cite Edgar Allen Poe in their ruling in lieu of a justification. They could give standing to my wife‘s pet turtle. But the Supreme Court derives its legitimacy derives from the acceptance of its verdicts. It has little to no power to enforce its rulings. If the Supreme Court did that, the entire US political system could crumble.

Especially the majority of the Court with links to the Federalist Society would have to jettison their entire judicial philosophy, which includes literalism and “not rocking the boat”. Could they do that? Sure. Some people who opined on the importance of character in office during the Clinton impeachment became fervent Trump supporters. And judges are just people and not immune to that.
Originally Posted by subego View Post
If I was on the Court, what I would offer as a legitimate train of legal thought would be like what I said before.
Which is?
There is nothing in the US Constitution and there is precedent where the Supreme Court had more than 9 justices.
Originally Posted by subego View Post
The framers clearly indicated what degree of consensus they felt was required to change the direction of the Court. They did not believe it should be accomplished with a simple majority.
Where do you find that in the Constitution? The US Constitution is quite vague when it comes to the Supreme Court. Article Three establishes that there shall be a US Supreme Court, that federal judges (including those on the Supreme Court) have lifetime tenure and that judges are proposed by the President and need to be confirmed in the Senate. And there needs to be a Chief Justice.

But it does not stipulate that there must be a super majority in the Senate or fixes the number of Justices. In fact, the number of justices on the Supreme Court has changed over time. In fact, it had ten justices for a while. The claim “this is what the Founders wanted” is simply not backed by historical facts. Usually I find that this is a copout anyway, because we can‘t very well ask them. Would they have approved of refusing confirmation hearings? If the Founding Fathers had cared so much about the number of Supreme Court Justices, they would have included a number in the Constitution.

All the arguments against an expansion of the Supreme Court are political, but not legal and especially not constitutional.
Originally Posted by subego View Post
Further, stuffing makes an unapologetic mockery of the Court’s position as a check and balance against the legislature.
You are very narrowly viewing Supreme Court expansion through a partisan lens. The current number of 9 justices was established in 1869 when the US had a population of 38.5 million. Now it has 331 million living within its borders, roughly a difference of a factor of 10. That means the number of court cases has also increased quite substantially, but the Supreme Court was not scaled up.

For example, you could think of increasing the size of the Supreme court to 21 = 3*7, where you now have e. g. three panels of judges for each case, chosen at random. Not all ideas of Supreme Court expansion are linked to partisanship or “court packing”.

I‘d also say that the current composition of the Supreme Court does not reflect the gamut of judicial philosophy, it is becoming more and more of a mono culture. I think this is bad, because mono cultures everywhere in life are bad.
Originally Posted by subego View Post
I would also argue there’s a legitimate train of legal thought which leads to the allowance of judicial activism in extreme circumstances. This would be an example of not only extreme circumstances, but the most extreme circumstances the Court has ever faced.
It is precisely this train of thought that also paves the way for court packing in the narrow sense. What happened to Garland, for example, is part and parcel of that — legal according to the letter of the law, but clearly against its spirit. I‘d also add that not filling vacancies during Obama‘s Presidency and letting Trump do it so quickly that they ran out of qualified candidates is also a form of court packing. Was that what the Founders had in mind?
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subego  (op)
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May 25, 2021, 10:47 PM
 
Originally Posted by subego View Post
The framers clearly indicated what degree of consensus they felt was required to change the direction of the Court.
Originally Posted by OreoCookie View Post
...there is precedent where the Supreme Court had more than 9 justices.

If the Founding Fathers had cared so much about the number of Supreme Court Justices, they would have included a number in the Constitution.
These feel like responses to an argument I’m not making.

I can answer your questions, but I want to be sure this part is clear. I’m not talking about the framers’ opinion on the number of justices, I’m talking about their opinion on changing the direction of the court.
( Last edited by subego; May 25, 2021 at 11:15 PM. )
     
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May 26, 2021, 01:25 AM
 
Originally Posted by subego View Post
I’m not talking about the framers’ opinion on the number of justices, I’m talking about their opinion on changing the direction of the court.
I understand your political argument, and this is a valid argument, but I just see no way to link that to any opinion of the Founding Fathers. I am not aware that they considered this specific point. Put another way, it seems to me you are trying to bolster your argument by invoking the names of the Founding Fathers to lend your arguments more credence, proof by intimidation.
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May 26, 2021, 04:59 AM
 
Originally Posted by subego View Post
I’m not talking about the framers’ opinion on the number of justices, I’m talking about their opinion on changing the direction of the court.
Hasn't the courts direction already been co-opted by the other side though? Can't imagine the framers would approve of the shenanigans that led to that happening.
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May 26, 2021, 10:21 AM
 
Originally Posted by Waragainstsleep View Post
Hasn't the courts direction already been co-opted by the other side though? Can't imagine the framers would approve of the shenanigans that led to that happening.
The framers explicitly gave the Senate the right of consent. I doubt the framers would consider the Senate using that right as shenanigans.

Honestly, the framers very well might approve of it. I much prefer power being invested in a distributed body rather than an individual (an idea I understand the framers to have been rather sympathetic towards). That was the original premise of the thread.
( Last edited by subego; May 26, 2021 at 10:58 AM. )
     
subego  (op)
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May 26, 2021, 12:17 PM
 
To reiterate the original premise, for most of my life, the savvy political spectator understood Supreme Court appointments to be the only thing the President does which has any lasting legacy.

Now it’s in the Senate’s hands. The President no longer has a lasting legacy. That’s a good thing.
     
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May 26, 2021, 08:34 PM
 
It's always been in the Senate's hands to confirm the nominee, or not, and is a fine check/balance. What's appalling is refusing to even begin the nomination process, for some arbitrary reason when it benefits your party, but ignoring that same reason when it would hurt your party.
     
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May 26, 2021, 08:47 PM
 
Originally Posted by subego View Post
The framers explicitly gave the Senate the right of consent. I doubt the framers would consider the Senate using that right as shenanigans.
You know what Waragainstsleep was referring to: sticking to the letter of the law, but violating its spirit. I don't think anyone designing the constitution of a modern state would like to see that happen. I think the naïve expectation is that judicial vacancies are filled in a timely fashion — not when the power constellation is just right for one party. When a candidate is rejected by the Senate, the President is free to propose another one.
Originally Posted by subego View Post
Now it’s in the Senate’s hands. The President no longer has a lasting legacy. That’s a good thing.
It has always been in the Senate's hands to confirm a judicial candidate or not. Even in cases when a candidate was not approved in the end, e. g. Harriet Miers who was nominated by George W. Bush, then it was mostly due to lack of support among the President's party.

It is just a recent development that rather than deliberate over candidates and then confirming them with broad majorities or not at all, nominations for federal judgeships (including the Supreme Court) have become subject to simple party politics, a process that has been escalated by the GOP. They held up filling vacancies during the Obama Administration and then filled them during Trump's term. You can say that this was in accordance to the letter of the law, but I still maintain it is a blatant violation of its spirit.
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May 27, 2021, 08:34 AM
 
Originally Posted by andi*pandi View Post
It's always been in the Senate's hands to confirm the nominee, or not, and is a fine check/balance. What's appalling is refusing to even begin the nomination process, for some arbitrary reason when it benefits your party, but ignoring that same reason when it would hurt your party.
If the Republicans believe their lame duck argument, then the way they applied it is in fact hypocritical and appalling.

The Republicans never believed it, though. They were playing the optics game, colloquially known as lying.

It wasn’t difficult for me to see through the lie, so I’m not that angry about it, especially since the Republicans don’t hold a monopoly on interfering with Supreme Court appointments. Democrats can do the exact same thing back to the Republicans, which they should.
     
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May 27, 2021, 08:45 AM
 
Originally Posted by OreoCookie View Post
I think the naïve expectation is that judicial vacancies are filled in a timely fashion — not when the power constellation is just right for one party.
What stopped the vacancy from being filled was the Executive refusing to pick a nominee the Senate would consent to.

The system didn’t cause the delay in filling the seat, the Executive did.

To fill a seat, the Executive has to play ball with the Senate. This is in keeping with both the spirit and letter of the law. The spirit of the law is if the Executive and the Senate can’t come to a satisfactory compromise, the seat should remain unfilled until the time comes when they can.
     
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May 27, 2021, 09:15 AM
 
Originally Posted by OreoCookie View Post
I understand your political argument, and this is a valid argument, but I just see no way to link that to any opinion of the Founding Fathers. I am not aware that they considered this specific point. Put another way, it seems to me you are trying to bolster your argument by invoking the names of the Founding Fathers to lend your arguments more credence, proof by intimidation.
I’m taking what the framers did offer their opinion on and am drawing inferences from it.

For example, the framers decided a Representative should serve a term of 2 years, the President serves 4, a Senator serves 7, and a Supreme Court justice serves for life.

Am I not supposed to infer from this the framers envisioned these institutions reacting to change at different rates?

Is it not obvious the framers intended the Court to change its makeup at a glacial pace?
     
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May 27, 2021, 09:23 AM
 
Originally Posted by subego View Post
What stopped the vacancy from being filled was the Executive refusing to pick a nominee the Senate would consent to.
Garland was not refused a hearing, because the Senate didn't like him. I remember Lindsey Graham saying that even if Obama nominated him, he'd reject himself. This was not about the candidate, this was about the bet that the Republican candidate might win the Presidential election.

The same goes for not filling vacancies in the lower federal courts. This wasn't an issue of candidates lacking qualifications, just a way to unfairly tip the balance in the direction of the GOP.
Originally Posted by subego View Post
To fill a seat, the Executive has to play ball with the Senate. This is in keeping with both the spirit and letter of the law. The spirit of the law is if the Executive and the Senate can’t come to a satisfactory compromise, the seat should remain unfilled until the time comes when they can.
The GOP in the Senate was not interested in a compromise. They wanted to have the chance to have a Republican president make the nomination. So a clear violation of the spirit of the law.
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May 27, 2021, 09:32 AM
 
Originally Posted by subego View Post
Am I not supposed to infer from this the framers envisioned these institutions reacting to change at different rates?
The last change in the number of Supreme Court Justices was 1869. Even if I buy your premise that's pretty glacial change in my book. The population in the US has grown roughly by a factor of 10.
Originally Posted by subego View Post
Is it not obvious the framers intended the Court to change its makeup at a glacial pace?
No, they wanted to ensure the independence of Supreme Court Justices, i. e. that they did not need to worry about getting a job afterwards or being reelected. And life expectancy was much, much lower, 38 years, apparently. So life time tenure did not mean the same thing then than it does now when average life expectancy is approaching 80. Overall, I don't think that the intent was that the institution of the Supreme Court shall change at a glacial pace.
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May 27, 2021, 09:33 AM
 
Originally Posted by OreoCookie View Post
Garland was not refused a hearing, because the Senate didn't like him. I remember Lindsey Graham saying that even if Obama nominated him, he'd reject himself. This was not about the candidate, this was about the bet that the Republican candidate might win the Presidential election.
I like Graham, but isn’t it obvious the guy’s full of shit?

It was easy for him to say that because he knew Obama wasn’t going to back down from Garland. Had Obama reversed course and nominated Scalia 2.0, the Republicans would have been in a much more difficult position. One where them being ****ers gets us Hillary, a Democratic Senate, and RBG 2.0.

And let’s be honest here... whenever Graham wanders off the reservation, the powers that be threaten him with an outing.
     
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May 27, 2021, 09:39 AM
 
Originally Posted by OreoCookie View Post
And life expectancy was much, much lower, 38 years, apparently. So life time tenure did not mean the same thing then than it does now when average life expectancy is approaching 80.
I’m singling this out because it’s quick.

Historical numbers for life expectancy are worthless unless they correct for infant mortality.
     
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May 27, 2021, 09:59 AM
 
Originally Posted by OreoCookie View Post
No, they wanted to ensure the independence of Supreme Court Justices
Exactly.

Which is why they would disapprove of expanding the Court for partisan reasons. It’s a direct attack on the independence of the Court.

If we want to discuss expanding the Court for non-partisan reasons, be my guest. Show me where the Court can’t handle their caseload, and please understand arguments like the Court has become too monolithic make it appear as if partisanship is involved.

Is it understood why I might be skeptical the Democrats are thinking about this in a non-partisan manner?
     
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May 27, 2021, 10:05 AM
 
Originally Posted by OreoCookie View Post
The last change in the number of Supreme Court Justices was 1869.
I was talking about change in the makeup of the Court, not its size.
     
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May 27, 2021, 11:58 AM
 
Originally Posted by subego View Post
What stopped the vacancy from being filled was the Executive refusing to pick a nominee the Senate would consent to.

The system didn’t cause the delay in filling the seat, the Executive did.

To fill a seat, the Executive has to play ball with the Senate. This is in keeping with both the spirit and letter of the law. The spirit of the law is if the Executive and the Senate can’t come to a satisfactory compromise, the seat should remain unfilled until the time comes when they can.
The executive picked a middle of the road mild Democrat, not an extreme left winger, not someone who donated $$$ to certain parties. There was nothing wrong with the nominee. Turtle knew it, but refused hearings anyhow.

The fact that you knew they were blatantly lying about their "reasons" does not mean they get a pass.

Do two wrongs make a right?

In the case of Democrats, it seems whenever they behave as republicans do, they are held to a higher standard and vilified for it. Ohohoho, you aren't going high? Ohohoho, you are filibustering? Ohohoho... HOW DARE YOU BEHAVE LIKE WE HAVE.

By this logic, democrats should storm the capitals of every republican state, trash the joints, and then claim it was just a normal protest.
     
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May 27, 2021, 07:02 PM
 
Originally Posted by subego View Post
Historical numbers for life expectancy are worthless unless they correct for infant mortality.
Sure, but even when you adjust for that, life expectancy was still significantly shorter and a life time appointment. For example, third Chief Justice Ellsworth died when he was 62, his predecessor Rutledge died when he was 60. John Jay and the infamous John Marshall were much older when they died, but I think my point still stands.
Originally Posted by subego View Post
It was easy for him to say that because he knew Obama wasn’t going to back down from Garland. Had Obama reversed course and nominated Scalia 2.0, the Republicans would have been in a much more difficult position.
The Senate Republicans acted in bad faith. They could have held a hearing and rejected Garland then, but didn’t want to, because they knew Garland was both, eminently qualified and moderate.
Originally Posted by subego View Post
I was talking about change in the makeup of the Court, not its size.
Even here, history does not back you up. In the beginning of the Supreme Court Justices chose to serve shorter terms. John Jay (a Founding Father himself) served roughly six years, Rutledge a few months (we can count him an outlier if you wish) and Ellsworth 4 years. The first long-serving Chief Justice is John Marshal with over three decades on the Supreme Court. But just going through the list, there were Chief Justices afterwards with shorter tenures as well (e. g. because they died in their 60s rather than late 70s or 80s). The number of Supreme Court Justices was also in flux for the first 80 years. If anything, I think there was way more flux in the make-up on the court in the early years of the Republic than now.
Originally Posted by subego View Post
Which is why they would disapprove of expanding the Court for partisan reasons. It’s a direct attack on the independence of the Court.
I still maintain you are just invoking them for no reason than to give more heft to your argument. You don’t need to claim that the Founding Fathers would be on your side if they were still alive. I think the Founding Fathers would be big enough to see the flaws in their construction and would be the first to point out that things like the filibuster are not part of their design, and that the design of the Constitution was just for a more perfect union that should be adjusted as needed. (See what I did there?! )

Like I wrote, this is indeed a difficult political question with no clear answer. Because I do think the GOP creating a backlog of judges so that they can then appoint a whole slew of them at the next opportunity does unfairly stack the deck and is not representative of the United States’s gamut of jurisprudence. Small-d democratic political systems are based on balance, and the balance is severely out of whack, including on the Supreme Court. And that will stay that way for roughly one generation. That’s big damage to the United States, especially considering that the Trump administration had so many positions to fill that they ran out of suitably qualified candidates in some cases. How do you heal this? Should you wait a decade and hope that the GOP does not continue on its present heading? Or should you do something proactive, which might further escalate the situation? I don’t know which one is better here.
Originally Posted by subego View Post
If we want to discuss expanding the Court for non-partisan reasons, be my guest. Show me where the Court can’t handle their caseload, and please understand arguments like the Court has become too monolithic make it appear as if partisanship is involved.
IMHO you cannot neatly separate the partisan aspect from this. I think it is perfectly legitimate to propose a change that leaves the US Supreme Court in a better position to handle its challenges in the 21st century, especially since the composition of the court has not changed since the 19th century.
Originally Posted by subego View Post
Is it understood why I might be skeptical the Democrats are thinking about this in a non-partisan manner?
I never claimed that the Democrats were thinking about this apolitically, and part of their motivation is political. But that does not make it a bad idea or invalidate their justification why they are considering such a move.
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May 27, 2021, 07:59 PM
 
Originally Posted by OreoCookie View Post
I still maintain you are just invoking them for no reason than to give more heft to your argument.
This reads like I’m being accused of doing it on purpose.
     
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May 27, 2021, 08:07 PM
 
Originally Posted by subego View Post
This reads like I’m being accused of doing it on purpose.
Don't read it as an accusation. No matter whether it is done inadvertently or on purpose, I'm just saying this is how it is perceived on my end and I don't think it helps your argument.
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May 27, 2021, 08:22 PM
 
Originally Posted by OreoCookie View Post
Don't read it as an accusation. No matter whether it is done inadvertently or on purpose, I'm just saying this is how it is perceived on my end and I don't think it helps your argument.
I’m making an originalist argument. Originalism invokes the framers by definition.


P.S.: thank you for clarifying no accusation was intended.
     
 
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