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The Supreme Court - What's Next?

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  • toddnjoyce

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    @benenglish, there are several advocacy groups who’s desire to accomplish their stated objectives believe the ends justify the means.

    Demand Justice is one and Arabella Advisors is another. Sen Whitehouse, when questioned under oath this week, refused to answer items related to his relationship with Arabella Advisors, despite some of their advisory rhetoric being seem in action with his threat to SCOTUS “The court is not well” amicus brief in this year’s NY state gun case.
    DK Firearms
     

    SQLGeek

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    Actually, no. Republicans refused to replace a justice when Republicans controlled the Senate and Dems the White House.

    Democrats have a long history of breaking procedural norms on judges. While packing the Court would be their most radical decision to date, it would fit their escalating pattern. Let’s review the modern historical lowlights to see which party has really been the political norm-breaker:

    The Bork assault. When Ronald Reagan selected Robert Bork in 1987, the judge was among the most qualified ever nominated. No less than Joe Biden had previously said he might have to vote to confirm him. Then Ted Kennedy issued his demagogic assault from the Senate floor, complete with lies about women “forced into back-alley abortions” and blacks who would have to “sit at segregated lunch counters.” Democrats and the press then unleashed an unprecedented political assault.

    Previous nominees who had failed in the Senate were suspected of corruption (Abe Fortas) or thought unqualified (Harrold Carswell). Bork was defeated because of distortions about his jurisprudence. This began the modern era of hyper-politicized judicial nominations, though for the Supreme Court it has largely been a one-way partisan street.

    No Democratic nominee has been borked, to use the name that became a verb. Even Justice Sonia Sotomayor, whose left-wing legal views were obvious upon her nomination, received a respectful GOP hearing and was confirmed 68-31 with nine GOP votes. Justice Ruth Bader Ginsburg was confirmed 96-3, Stephen Breyer 87-9, and Elena Kagan 63-37.

    Democrats, meanwhile, have escalated to character assassination. Clarence Thomas was unfairly smeared on the eve of a Senate vote and barely confirmed. Democrats accused Samuel Alito of racism and sexism for belonging decades earlier to an obscure Princeton alumni group.

    Democrats promoted the uncorroborated claims of women accusers against Brett Kavanaugh from his high school and college years. Sen. Sheldon Whitehouse undertook a deep dive into Justice Kavanaugh’s high-school yearbook. This treatment has become the real Democratic Party “norm.”

    Filibustering appellate nominees. It’s mostly forgotten now, but in George W. Bush’s first term Senate Democrats pioneered the use of the filibuster to block nominees to the circuit courts. That was also unprecedented.

    Miguel Estrada was left hanging for 28 months before he withdrew, though he had support from 55 Senators. A 2001 Judiciary Committee memo to Sen. Dick Durbin was candid in urging opposition to Mr. Estrada because “he is Latino” and couldn’t be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court.

    Democrats also filibustered or otherwise blocked appellate nominees Priscilla Owen, Janice Rogers Brown, Charles Pickering Sr., Henry Saad, Carolyn Kuhl, William Pryor, David McKeague, Richard Griffin and William Myers, among others.

    This violation of norms was stopped only after the GOP regained the majority and threatened to change Senate rules. A handful of Senators in both parties then negotiated a deal to vote for nominees except in “extraordinary circumstances.” Republicans did not unilaterally break the filibuster for judicial nominees.

    Breaking the filibuster for appellate nominees. That norm-breaker was executed by Democrats in 2013, led by then Majority Leader Harry Reid with the enthusiastic support of Barack Obama. Democrats rewrote Senate rules in mid-Congress, on a party-line vote, to add three seats to the D.C. Circuit. The goal was to stack that court with liberals who would rubber stamp Mr. Obama’s “pen” and “phone” regulatory diktats.

    Those liberals have done that numerous times, while sometimes blocking President Trump’s deregulatory rule-makings. But the political cost has been high, as we warned at the time. Harry Reid’s precedent allowed GOP leader Mitch McConnell to do the same when Democrats tried to filibuster Neil Gorsuch. The GOP majority can now confirm Mr. Trump’s next nominee with 51 votes.

    Urged on by the progressive media, Democrats are now vowing that they’ll break the 60-vote legislative filibuster rule to add two, or even four, new Justices to the Supreme Court next year for a total of 11 or 13. But they have already been saying this for months. Barack Obama gave the green light when he used John Lewis’s funeral to call the filibuster a “Jim Crow relic.” Never mind that as a Senator he endorsed a filibuster of Mr. Alito. Mr. Whitehouse and four colleagues explicitly threatened in an amicus brief that the Court would be “restructured” if Justices rule the wrong way.

    Republicans could surrender and not confirm a nominee, and Senate Democrats would still break the filibuster. Court packing would then become a sword hanging over the Justices if they rule contrary to the policy views of the Senate left. Leader Schumer won’t resist because he is quaking at the prospect of a primary challenge from Rep. Alexandria Ocasio-Cortez in 2022.

    Contrast this Democratic record, and now this court-packing threat, with the GOP record. In 2016 Mitch McConnell and his colleagues refused to confirm Merrick Garland and said the voters should decide the issue in the election. Mr. Schumer had previously vowed the same standard in the final years of George W. Bush. Mr. McConnell essentially made a political bet by putting judicial philosophy and the Supreme Court at the center of the 2016 campaign.


    Judges were also on the Senate ballot in 2018 after the Kavanaugh ugliness. The GOP gained two net seats. The use of their elected Senate power now to confirm a nominee would be a wholly legitimate use of their constitutional authority. They should not be cowed by Democratic threats from confirming a nominee. Democrats have shown they will do what they want with Senate power no matter what Republicans do now.


    What Republicans should do is let the voters know about the Democratic filibuster and court-packing plans, and make them a campaign issue. Democratic Senators and candidates should have to declare themselves not merely on Mr. Trump’s nominee but on the filibuster and court-packing that Mr. Schumer has now told the country will be on the table.

    That's a great Op Ed by the WSJ.
     

    benenglish

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    My thoughts on court-packing are, first, that it can't happen if Trump is re-elected. If that happens, everybody can take a pause and catch their breath. That would be a good thing right about now.

    As to the future, the thing that gets me is that the dangers are so incredibly obvious. Weaponizing the nomination/confirmation of judges for political purposes is pretty awful if you're on the losing end. The Dems succeeded with it for a while but now the Republicans have learned to play that game and the Dems don't like it. But court-packing? That's not just hurting the process, that's attacking the whole concept of an independent judiciary. By extension, it attacks the whole concept of the separation of powers and fundamentally endangers the Union.

    Everyone, literally everyone including even the dimmest of the Dems, should appreciate that the result, maybe in 4 years or maybe in 40, will be mutually assured destruction.

    The bright side? This creates an opening. If Trump is re-elected, I think (well, maybe feel more than think) that it should be possible to sell enough Dems on that proposed constitutional amendment to set the number of SC judges permanently to 9. Surely enough of them realize that court-packing is a nuke and that detonating it is not in the best interest (or even the mid- or long-term cravenly selfish interest) of anyone.

    How would this work?
    • R - Support this amendment.
    • D - Why would I do that? We're trying to pack the court to hurt you guys.
    • R - After you pack it with 15 judges, you'll hand us the issue. You'll never be able to get an amendment limiting it to 15.
    • D - So what?
    • R - Well, someday we're going to be back in power and the first thing we'll do is pack it to 25 judges.
    • D - <light bulb over head slowly turns on>
    • R - So support this amendment, take this weapon off the table, and we'll never be able to use it against you.
    • D - <light bulb fully warms up>
    Surely it should be possible to get enough Dems to sign on, particularly in light of what an obvious, public mess they've made of these procedures over the last decade. Their constituents, at least the ones who are even half awake, would scream for it.

    Wouldn't they? Or do I still have too much faith in my fellow man?
     

    oldag

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    My thoughts on court-packing are, first, that it can't happen if Trump is re-elected. If that happens, everybody can take a pause and catch their breath. That would be a good thing right about now.

    As to the future, the thing that gets me is that the dangers are so incredibly obvious. Weaponizing the nomination/confirmation of judges for political purposes is pretty awful if you're on the losing end. The Dems succeeded with it for a while but now the Republicans have learned to play that game and the Dems don't like it. But court-packing? That's not just hurting the process, that's attacking the whole concept of an independent judiciary. By extension, it attacks the whole concept of the separation of powers and fundamentally endangers the Union.

    Everyone, literally everyone including even the dimmest of the Dems, should appreciate that the result, maybe in 4 years or maybe in 40, will be mutually assured destruction.

    The bright side? This creates an opening. If Trump is re-elected, I think (well, maybe feel more than think) that it should be possible to sell enough Dems on that proposed constitutional amendment to set the number of SC judges permanently to 9. Surely enough of them realize that court-packing is a nuke and that detonating it is not in the best interest (or even the mid- or long-term cravenly selfish interest) of anyone.

    How would this work?
    • R - Support this amendment.
    • D - Why would I do that? We're trying to pack the court to hurt you guys.
    • R - After you pack it with 15 judges, you'll hand us the issue. You'll never be able to get an amendment limiting it to 15.
    • D - So what?
    • R - Well, someday we're going to be back in power and the first thing we'll do is pack it to 25 judges.
    • D - <light bulb over head slowly turns on>
    • R - So support this amendment, take this weapon off the table, and we'll never be able to use it against you.
    • D - <light bulb fully warms up>
    Surely it should be possible to get enough Dems to sign on, particularly in light of what an obvious, public mess they've made of these procedures over the last decade. Their constituents, at least the ones who are even half awake, would scream for it.

    Wouldn't they? Or do I still have too much faith in my fellow man?
    I think they are too short sighted for this.
     

    Shady

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    My thoughts on court-packing are, first, that it can't happen if Trump is re-elected. If that happens, everybody can take a pause and catch their breath. That would be a good thing right about now.

    As to the future, the thing that gets me is that the dangers are so incredibly obvious. Weaponizing the nomination/confirmation of judges for political purposes is pretty awful if you're on the losing end. The Dems succeeded with it for a while but now the Republicans have learned to play that game and the Dems don't like it. But court-packing? That's not just hurting the process, that's attacking the whole concept of an independent judiciary. By extension, it attacks the whole concept of the separation of powers and fundamentally endangers the Union.

    Everyone, literally everyone including even the dimmest of the Dems, should appreciate that the result, maybe in 4 years or maybe in 40, will be mutually assured destruction.

    The bright side? This creates an opening. If Trump is re-elected, I think (well, maybe feel more than think) that it should be possible to sell enough Dems on that proposed constitutional amendment to set the number of SC judges permanently to 9. Surely enough of them realize that court-packing is a nuke and that detonating it is not in the best interest (or even the mid- or long-term cravenly selfish interest) of anyone.

    How would this work?
    • R - Support this amendment.
    • D - Why would I do that? We're trying to pack the court to hurt you guys.
    • R - After you pack it with 15 judges, you'll hand us the issue. You'll never be able to get an amendment limiting it to 15.
    • D - So what?
    • R - Well, someday we're going to be back in power and the first thing we'll do is pack it to 25 judges.
    • D - <light bulb over head slowly turns on>
    • R - So support this amendment, take this weapon off the table, and we'll never be able to use it against you.
    • D - <light bulb fully warms up>
    Surely it should be possible to get enough Dems to sign on, particularly in light of what an obvious, public mess they've made of these procedures over the last decade. Their constituents, at least the ones who are even half awake, would scream for it.

    Wouldn't they? Or do I still have too much faith in my fellow man?


    even if Biden is elected they would need to flip aprox 16 Republican Senate seats to get the 60 votes needed for it to happen.

    I do not think the Nuclear Option is available for packing the court but then again I was almost wrong 1 time before :)
     

    benenglish

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    I do not think the Nuclear Option is available for packing the court
    Fair enough and I think you're right. However, is this next little while going to be scary enough to make both sides support a constitutional amendment that renders court packing impossible? I'm hoping so.
     

    benenglish

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    Post #21 is an answer to post #23. I know some of y'all will wonder how toddnjoyce was able to reply to my post before I had written it. Well, the relative time stamps are screwed up due to my actions and it's an error I can't fix.

    Sorry about that. At least I learned something new about how to do my job.
     

    Shady

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    Fair enough and I think you're right. However, is this next little while going to be scary enough to make both sides support a constitutional amendment that renders court packing impossible? I'm hoping so.


    I would love to see see the SC locked at 9. I do not think you will get the Dems to vote that way under the current situation or any thing in the next 4 years or so.

    Lets hope I am wrong.
     

    Axxe55

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    I would love to see see the SC locked at 9. I do not think you will get the Dems to vote that way under the current situation or any thing in the next 4 years or so.

    Lets hope I am wrong.

    I think the Democrats are responding about packing the courts, because they know that Trump is going to nominate a conservative judge to fill the vacancy. That is three in the last four years for Trump. They are getting scared because they are losing their liberal justice's influence over rulings, and maybe, if there is a situation that the election is contested, and makes it way to the Supreme Court, that really scares them.

    Purely an opinion.
     

    TipBledsoe

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    Watching Fox News reporting on the Louisville KY grand jury in Breonna Talyor killing, I saw a demonstrator's sign saying "Capitalism is killing us" - apparently written by someone who has no idea what the definition of capatalism is.
     

    etmo

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    We have two outstanding candidates for the Supreme Court vacancy.

    We hope we do. We actually don't have tons of info on either one, so it's quite the gamble, and both candidates have serious warts. Perhaps another thread...

    My thoughts on court-packing are, first, that it can't happen if Trump is re-elected.

    Well, if the democrats gain enough seats to override a veto, then they can pack the Court even with Trump in the Oval Office.

    Surely it should be possible to get enough Dems to sign on,
    Wouldn't they? Or do I still have too much faith in my fellow man?

    Amending the Constitution is virtually impossible -- so much cooperation and mutual trust is required. There is nothing in the Constitution which says, "When you convene an Article V convention, you can limit the potential changes to the Constitution to only those topics on some arbitrary piece of paper". IOW, when the Constitution is on the table for surgery, everything is an option. You can't tell someone, "No, we can't discuss removing the 2A" because everything is on the table. So the anti-2A states would lick their chops about removing the 2A, and adding new amendments to force critical race theory or some crap on all of us forever, and some states would try and get abortion banned, and some states would try to change the rules for amending the Constitution, and on and on. Want to give Texas back to Mexico? Let's talk. It's mind-bending.

    So nobody wants to give their political opponents even a sniff of that much power, which is why an Article V convention would probably never even be convened, even though the various parties might agree on a theoretical amendment. Plus, it would destroy Congress' schedule, because it would obviously be the most important thing in 100 years, and since it's so difficult to make a change, most would say, "Not worth the hassle".

    But there's another reason, and yes, imo it's because you have too much faith in your fellow man. I agree with Ben Shapiro's take on this issue (and the following is essentially my translation of what he said) -- the democrats believe they are the One True Voice of America, and any attempt to interfere with that they want is heresy, blasphemy and treason all wrapped into a breakfast burrito.

    So most of them will agree with you that yes, after the dems stuff the courts and wreck the nation, if the Republicans ever got power back they would re-stuff the courts and undo all the democrat changes and etc, etc, but they're OK with that. Because they are the True Voice, once they have power and create their utpoia, the people will never give the Republicans power again, so they don't need to worry about consequences. These modern leftists we're dealing with are essentially religious zealots, not rational people.

    Of course, some democrats are actually reasonable people, but the up-and-coming democrats like AOC / the Somalian / etc believe those dems are dinosaurs, and will soon be replaced by more true believers, or at least enough of them that the true believers will be able to do whatever they want.
     

    benenglish

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    So most of them will agree with you that yes, after the dems stuff the courts and wreck the nation, if the Republicans ever got power back they would re-stuff the courts and undo all the democrat changes and etc, etc, but they're OK with that. Because they are the True Voice, once they have power and create their utpoia, the people will never give the Republicans power again, so they don't need to worry about consequences. These modern leftists we're dealing with are essentially religious zealots, not rational people.
    If you're right then I grieve for the nation that will be here after I'm gone and I feel sorry for the poor bastards that will have to live in it.

    OTOH, as long as I'm alive I'll cling to the hope that those religious zealots are not a majority of Democrats. If that's true, we need only to find the course that leads the Dems down the same path as the Whigs, into the dustbin of history. Whatever new organization arises, I fervently pray, will marginalize the zealots simply because supporting them is too costly.

    And on the third hand, my brain is talking to my heart right now, incredulously asking "Just how stupid are you?"
     

    etmo

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    OTOH, as long as I'm alive I'll cling to the hope that those religious zealots are not a majority of Democrats.

    Interestingly, Shapiro's show from today covered this exact topic -- how progressivism is actually intertwined with the religions of these democrats. No, I can't see the future nor do I know Shapiro, this is just a coincidence.


    There are some seriously creepy examples. Apparently a congregation of kinda-Jews substituted the words of RBG for the words of their prophets in an actual religious ceremony. Kid you not, he has the footage. Apparently some psuedo-Christians did something similar. You cannot make this stuff up.

    And on the third hand, my brain is talking to my heart right now, incredulously asking "Just how stupid are you?"

    Depends on whether or not you really believe you have a third hand ;)

    But seriously, I think it's another example of weak people making hard times. These lunatics will help bring down our civilization, and we'll have to go round again through the tough times. If we can avoid it, that would be great....open to ideas that don't require an answer to the question, "What caliber for progressives?"
     

    ScorpionHunter

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    If the Dems have the House, Senate and Presidency, a 6-3 conservative Supreme Court might actually help them. The conservative view is, basically, if you don't like the law, write a new one. So, the Dems can write laws to enshrine the progressive wet dream into the US Code and SCOTUS can't stop them unless there is a viable challenge. Even when SCOTUS declared certain parts of FDR's New Deal as unconstitutional, it wasn't due to the policy, but rather Congress giving the President too much power, or violating interstate commerce. FDR and the Dems cleaned up the laws and got what they wanted. The leviathan US gov't is what we have 80 years later. Plus, there are still enough liberal lower court judges out there that will strike down any challenge. That's why re-electing Trump and Republican Senators is so important. They can keep filling courts with pro-Constitution judges.
     

    etmo

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    If the Dems have the House, Senate and Presidency, a 6-3 conservative Supreme Court might actually help them. The conservative view is, basically, if you don't like the law, write a new one.

    Well, it would have to be a Constitutional law, and that is often a real stumbling block for democrats

    "The legislature ... ignores whether or not it is constitutional or not. We go ahead and make laws because we're California. We do it anyway." - Assemblymember Reggie Jones-Sawyer from

    Plus, there are still enough liberal lower court judges out there that will strike down any challenge.

    That's why we wouldn't file a challenge in the district of a liberal judge. We'd go to a known originalist and file the challenge in that district.
     

    phoenix

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    ANYONE who values gun rights should be as nervous as a hot mouthed intern around bill clinton of a liberal picking that seat. Now if its not fill or even if it is, if biden wins the WH ( they are trying to steal florida paying felon fines) and dems take the senate they are already discussing packing the court. In the 6 justices conservative or at least 5 have balls if there is a challenge they could stop it from happening. Sadly roberts hates trump so much i fear how he will rule.
     
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