Ginsburg, Garland, and Court Packing

Two related discussions.

The passing of Justice Ruth Bader Ginsburg just weeks before a Presidential election has reignited two debates. First, given the Merrick Garland precedent, should the vacancy be held open until the next Presidential term? And, second, presuming they win back the White House and Senate, should Democrats increase the number of justices on the Supreme Court to prevent their policies from being overturned by conservative ideologues?

Barack Obama, the victim of the Garland gambit, weighed in on the first in his tribute to Ginsburg:

Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in.

A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard. The questions before the Court now and in the coming years — with decisions that will determine whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures — are too consequential to future generations for courts to be filled through anything less than an unimpeachable process. [emphasis in original]

While I’m sympathetic to this argument, it’s not terribly persuasive. The difference between 2016 and 2020 is rather obvious: divided government.

Even though it worked out in a way I was happy with, I opposed the Garland gambit. While I agreed with my erstwhile co-blogger Doug Mataconis that Senate Majority Leader Mitch McConnell and the Republicans on the Judiciary Committee were acting within their Constitutional prerogative in not granting Garland a hearing, I believed then and still believe that it was unsporting. Mostly, though, that was because of the timing.

Justice Scalia died February 13 and Obama appointed Garland on March 16—just shy of eight months ahead of the election. Under modern precedent, the Republicans had every right to insist that Obama appoint a moderate. He did so. Not granting him a hearing with that much of his presidency left was unseemly.

Ginsburg’s passing comes a mere six weeks from an election in which the incumbent has been trailing badly throughout the contest. But, with the same party controlling both the White House and the Senate, they’re quite naturally going to confirm a replacement while they still can.

Would I view this as legitimate? I would. With a huge caveat: it needs to take place by the end of October.

So long as Trump nominates a highly-qualified Justice—one presumes under the circumstances that it will be a woman, probably Amy Coney Barrett—quickly and the Senate confirms her before Election Day, that person should be viewed as a rightful Supreme Court Justice. Were Trump to lose the election and ram someone through before Joe Biden’s inauguration, however, it would be more than unseemly or hardball politics.

The related question, then, is of packing the Court. I’m four-square against it but could be persuaded that adding a single Justice to undo a lame duck appointment was reasonable.

With the exception of a three-year period from 1863-1866, the Supreme Court has been at nine Justices since 1837—nearly two centuries. Even the incredibly popular Franklin Roosevelt generated enormous backlash when he proposed packing the court with younger Justices after growing frustrated at seeing his New Deal policies ruled unconstitutional. That was nearly a century ago. Nine is sacrosanct.

To add multiple Justices to the Court to “make up” for Garland and the inevitable replacement of Ginsburg would rightly be seen as turning it into a rubber stamp body. And, the next time a Republican President with a Republican Senate was elected, they would naturally further pack the Court.

Again, however, I’m persuadable that adding a single Justice to compensate for a lame duck appointment by a President who had lost the election would be seen as legitimate. But I don’t think it’ll come to that; Trump and McConnell will rush a nominee through.

Beyond that, I’m amenable to any number of true reform proposals—whether a Constitutional Amendment to term limit future Justices at 12 years, or a law giving every President two and only two Justice appointments per four-year term—aimed at correcting the current problems of the Court. But, to be perceived as legitimate, they would have to be done under a veil of ignorance, and thus not go into effect until the next Presidential term.

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FILED UNDER: *FEATURED, Law and the Courts, Society, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. charon says:

    Do we know how Chuck Grassley feels about rushed/ abbreviated hearings?

    Or does Mitch just bypass the judiciary committee, tell Grassley to just suck it up?

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  2. Hal_10000 says:

    I unfortunately agree with all your points. We are getting to the point in politics where no one can be nominated for SCOTUS unless the White House and Senate are in the same hands. The Republican Calvinball is unfair, destructive and utterly cynical. It is also Constitutional and legal. It’s not the first time these games have been played, but it’s gotten to its ultimate crisis point. Don’t like it? Vote.

    Also, Trump is not going to hold the seat open for electoral benefit. He’s going to fill it and then try to terrify his supporters about a liberal Court anyway and rally them about how mean the Dems were to oppose his nomination. At most, he nominates before the election, holds that nomination over the election, then confirms afterward, win or lose.

    And no, Kavanaugh isn’t being impeached. Don’t be silly.

    I’ve come 180 degrees on this. It’s time for SCOTUS term limits. Once every two years, with temporary appointments if a judge croaks. Enough of this armageddon every few years.

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  3. charon says:

    The difference between 2016 and 2020 is rather obvious: divided government.

    We could be set now to discover it is not a great leap from “not in the last year” to “not ever.” Thus enshrining the principle that judicial nominations are futile when the Senate and President are different parties.

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  4. Joe says:

    @charon:
    There is shorter explanation of the difference between 2016 and 2020: because we can. And on the off chance that they cannot confirm before the election and the Senate changes hands at the election (and moreso if Mitch loses), because they can becomes because it’s their last chance.

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  5. James Joyner says:

    @charon:

    We could be set now to discover it is not a great leap from “not in the last year” to “not ever.” Thus enshrining the principle that judicial nominations are futile when the Senate and President are different parties.

    Sure. The unspoken compromise that had been in effect since at least the Robert Bork hearings was: if it’s divided government, you have to pick a relative moderate. Obama honored the spirit of that compromise with the Garland appointment and McConnell and company moved the goalposts.

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  6. Scott O says:

    @Hal_10000: “Don’t like it? Vote.”

    More people voted for Hillary and Trump became president. More people voted for Democratic senators and Republicans hold the majority of seats. All constitutional and legal. Voting doesn’t seem to be working.

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  7. Hal_10000 says:

    @Scott O:

    Fair point. The GOP has a structural advantage in that they get lots of rural support whereas Dem support is more concentrated. But the electoral college isn’t going anywhere, nor is the Senate (delusion fantasies about giving DC 50 Senators aside). For anything to change, the Dems have to work from the ground up. State legislatures and governorships first. Fix voting rights and gerrymandering. That makes the legislature an easier target and maybe even forces the GOP to moderate.

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  8. gVOR08 says:

    While I largely agree with you, James, your borderlines on “legitimate”, “unsporting”, and ‘unseemly” seem more than a little arbitrary. Ramming through a nominee now is acceptable but not after October? What changes legally after they’re lame ducks, except that Susan Collins vote can be bought cheap? But we all know McConnell will do whatever he can get away with, as long as it enhances the wealth and power of Mitch McConnell.

    The Democratic response should be to harass the nomination and run on the threat to women’s rights, promising to set things right with legislation if given a Senate majority. And pray Clarence Thomas’ health holds out til February, but not much longer.

    I trust the commenters here realize abortion is only the visible tip of the iceberg. Mirroring the Republican Party, abortion is the faux populist face of the Federalist Society. It’s a bone the plutocratic funders of the Party can throw to the masses. They’d still be able to send their granddaughters and nieces to Paris for a shopping spree and a scrape. The real issue is the pro-business and partisan Republican bias of the Federalist clones.

    Until 2016 the tradition was that in a period of divided government the prez would nominate a moderate acceptable to the other party. Obama did that and Moscow Mitch spit in the face of comity. Returning to a Senate willing to compromise and bargain, as they did for two hundred plus years, is the solution to this. But there’s only one path back,

    GOPus Delendus Est.

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  9. James Joyner says:

    @Scott O:

    More people voted for Hillary and Trump became president. More people voted for Democratic senators and Republicans hold the majority of seats. All constitutional and legal. Voting doesn’t seem to be working.

    The basic rules of the game were set in 1787. The problem is that we overlaid democratic processes atop a weird set of compromises to deal with the political realities of a bygone era and the two are incompatible.

    Still, while I’d very much prefer direct election of the President and a more representative legislature, all the current arrangement does is slow down the pace of change. The country is, in just about every way, well to the left of where it was in 1990 or even 2000 now even with institutions rigged to favor conservative preferences.

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  10. charon says:

    @gVOR08:

    GOPus Delendus Est

    As have said before, I expect the GOP to be not much different through 2024 and perhaps a bit longer. But maybe by 2028 or 2032 it simply disintegrates the way the Federalists and Whigs
    did.

    (As it is running into some pretty brutal demographic and social trends.)

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  11. gVOR08 says:

    @James Joyner: Yes, the long trend is toward the left progress. But if Trump gets a second term we will have to endure a long, painful detour. At best, all progress is thwarted for four years with a D congress and an R prez at loggerheads. At worst we suffer a period of Putinesque oligarchy with a democratic facade. Once Germany and Italy went autocratic it took the near destruction of their countries to eradicate it. “It can’t happen here.” is generally said sarcastically, meaning clearly that it can happen here.

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  12. HarvardLaw92 says:

    I remain convinced that McConnell will not move on confirming a replacement prior to the election.

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  13. @Hal_10000:

    But the electoral college isn’t going anywhere, nor is the Senate

    And this is why I have reluctantly come to the position of adding PR and DC as states and adding members to SCOTUS. They are sub-optimal, semi-correctives to broader problems.

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  14. James Joyner says:

    @gVOR08:

    While I largely agree with you, James, your borderlines on “legitimate”, “unsporting”, and ‘unseemly” seem more than a little arbitrary. Ramming through a nominee now is acceptable but not after October? What changes legally after they’re lame ducks, except that Susan Collins vote can be bought cheap?

    Nothing changes legally but I think losing an election is a clear moral signal. Until then, Trump is fully President of the United States and entitled to the full force of his authority. If he loses in November, however, any major action will naturally be deserving of more scrutiny.

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  15. @James Joyner:

    all the current arrangement does is slow down the pace of change.

    I think I might have agreed with this some years ago, but the reality is that the system is actually starting to really strain on its lack of representation.

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  16. James Joyner says:

    @HarvardLaw92:

    I remain convinced that McConnell will not move on confirming a replacement prior to the election.

    He has said, repeatedly, for more than two years now that he would. So, the only thing holding him back is if he thinks he can’t get the votes.

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  17. James Joyner says:

    @Steven L. Taylor:

    the reality is that the system is actually starting to really strain on its lack of representation.

    Yes I agree with that. I’m still not with you here, though:

    I have reluctantly come to the position of adding PR and DC as states and adding members to SCOTUS. They are sub-optimal, semi-correctives to broader problems.

    I fear that this is a recipe for civil war.

    It would be a naked power grab that’s beyond the pale of the system—a nuclear bombardment compared to the BB gunshot that was the Garland gambit. Adding in the additional factor that DC and Puerto Rico and majority nonwhite will further inflame the situation, adding credence to the notion that the Democrats aim to replace white folks.

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  18. MarkedMan says:

    James, I get the sentiment but ultimately what you are calling for things that simply don’t exist. These norms were dependent on how both parties behave. The Republicans no longer honor those norms and haven’t for a long time. Pleading for one side to honor a norm while the other ignores it makes no sense.

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  19. James Joyner says:

    @MarkedMan:

    Pleading for one side to honor a norm while the other ignores it makes no sense.

    I’m not so much calling for anyone to do anything as explaining 1) how I would perceive those actions and 2) extrapolating to how I think the greater policy would perceive them. There’s a fine line between hardball politics and ending the legitimacy of our system of government.

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  20. Kingdaddy says:

    @James Joyner: As MarkedMan said, there are no Republican principles in play here. Mitch McConnell’s ghoulish announcement, hours after Ginsberg died, in direct contravention to what he did in 2016, is proof enough.

    In contrast, on the question of DC and Puerto Rico, there is a huge democratic principle. As a former resident of the District of Columbia, it’s outrageous that the people who live there do not have full representation, which is inextricably part of what it means to be a citizen. Ditto a hundred times over for the Americans who happen to live in Puerto Rico, bearing the responsibilities of being part of our nation, but not the full rights. We take do things like DC and PR citizenship because they’re right, not because we want to avoid “inflaming the situation” with a segment of white people. I don’t think anyone here would dare say, in person, to someone in the District, “You live in our nation’s capital, but we’re not willing to push for you to have full citizenship because we’re all afraid of some bigots.”

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  21. wr says:

    @James Joyner: “Adding in the additional factor that DC and Puerto Rico and majority nonwhite will further inflame the situation, adding credence to the notion that the Democrats aim to replace white folks.”

    So you’re saying we can’t move to make this nation’s government represent its majority because racist assholes in the minority live off of paranoid delusions?

    If that’s the case, how will we ever function except as a dictatorship of the minority and the moronic?

    [Hmm — Kingdaddy said this far more eloquently right above…

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  22. SteveCanyon says:

    “Under modern precedent, the Republicans had every right to insist that Obama appoint a moderate. ”

    What precedent is this? Reagan nominated O’Connor, Scalia, Kennedy and Bork. All save O’Connor were conservative, all received hearings, and all but Bork were confirmed. George HW Bush nominated Souter and Thomas both of whom were conservative (well Souter was supposed to be), received hearings and were confirmed. In Thomas’ case, he was conservative who replaced a liberal (Marshall). All these nominations were during a time of divided government. Since that time only Obama has made a nomination during a time of divided government and we saw the result.

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  23. wr says:

    @James Joyner: ” There’s a fine line between hardball politics and ending the legitimacy of our system of government.”

    But the ultimate determinant of the legitimacy of our system is the consent of the governed. And if McConnel can slime through another Federalist Society right-winger so that two thirds of the court is making decisions that two thirds of the country disagree with — how long before that consent gets revoked?

    If a Federalist-controlled court outlaws abortion against the stated beliefs of 77% of the American people (according to a recent poll), if they accelerate the transfer of power away from individuals and towards corporations and from the middle class to the poor, how long do you think the majority of the country will continue to see them as anything but political hacks?

    And if the people come to realize that no matter how huge a majority votes for one side, the other side always gets to win, how long will they accept that rule?

    You warn of civil war if the Democrats don’t meekly go along with everything the Republicans are doing instead of fighting back equally hard. HAL’s answer is that we should vote even though the left has been voting and winning and is still locked out of power — apparently we should just vote harder or something.

    Maybe you think there will be peace if the nation is simply handed over to the Trumps and McConnel’s to do with what they want. The thing about the laws that make guns so easy to buy is that — so far, at least — they apply equally to Republicans and Democrats.

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  24. wr says:

    @wr: Middle class to the rich, not poor. Dummy.

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  25. James Joyner says:

    @Kingdaddy:

    We take do things like DC and PR citizenship because they’re right, not because we want to avoid “inflaming the situation” with a segment of white people.

    I don’t want to derail the discussion with DC statehood, a topic I’ve written on dozens of times over the years and is only tangentially germane. Suffice it to say, 1) it was written into the Constitution literally before DC existed, 2) is therefore baked in, 3) would be unconstitutional absent an amendment, and 4) would require simultaneous repeal of the 23rd Amendment.

    I don’t have a strong position on PR statehood. PR has repeatedly voted down statehood referenda, presumably because they prefer getting most of the benefits of US citizenship without the obligations.

    Regardless, pairing DC and PR statehood in a move rammed through by Democrats would rightly be seen as a big Eff You to half the country and spark a massive backlash.

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  26. James Joyner says:

    @wr:

    If a Federalist-controlled court outlaws abortion against the stated beliefs of 77% of the American people (according to a recent poll),

    Not gonna happen. Even if Roe were overturned, abortion would remain legal in Blue America and, indeed, much of the rest.

    And since when has polling been taken into consideration when evaluating Supreme Court rulings? How popular was Brown vs Board of Education in 1954?

    And if the people come to realize that no matter how huge a majority votes for one side, the other side always gets to win, how long will they accept that rule?

    But that’s not the case. In both 2000 and 2016, the plurality winner lost the election. But both were close elections. Obama won election twice, rather handily, in between and Biden looks to win comfortably in a few weeks. I think the system needs serious reform but it’s just slightly skewed, not broken beyond repair.

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  27. James Joyner says:

    @SteveCanyon:

    Reagan nominated O’Connor, Scalia, Kennedy and Bork. All save O’Connor were conservative, all received hearings, and all but Bork were confirmed. George HW Bush nominated Souter and Thomas both of whom were conservative (well Souter was supposed to be), received hearings and were confirmed. In Thomas’ case, he was conservative who replaced a liberal (Marshall). All these nominations were during a time of divided government. Since that time only Obama has made a nomination during a time of divided government and we saw the result.

    As noted, I think that understanding became the norm after Bork. But you’re calling all the Republicans “conservative.”

    Kennedy, the compromise pick after Bork was defeated (and Douglas Ginsburg withdrew) was very much a moderate.

    Souter was a moderate at appointment who turned out to be one of the more liberal justices.

    Thomas was indeed a conservative and, frankly, likely wouldn’t have been confirmed if he were white. As it was, we had one of the most bitter confirmation fights in history.

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  28. ptfe says:

    Lifetime appointments need to end and/or a set of non-lifetime justices need to be added. Having the most dangerous president (by a wide margin!) appoint 3 members to the court in 4 years is an absurd amount of leverage for an executive who’s shown himself to be ethically compromised in so many ways. The prospect of this happening again should make us seek aggressive counter-measures.

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  29. James Joyner says:

    @ptfe: I’m amenable to any number of reforms. Most of what you suggest would require amending the Constitution, though, which is no easy task.

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  30. Michael Cain says:

    @James Joyner:

    Not gonna happen. Even if Roe were overturned, abortion would remain legal in Blue America and, indeed, much of the rest.

    This. Not just abortion, but probably a number of things devolving back to the states. How elections are conducted, for example. Environmental regulation also comes to mind: the states in the Western Interconnect will certainly finish shutting down their coal-fired plants over the next decade no matter what the feds say.

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  31. HarvardLaw92 says:

    @James Joyner:

    It’s of no political benefit to him to do it before the election. It would only serve to give Dems an issue to base get out the vote on and it puts several of his incumbents – notably Collins – on shaky ground with respect to Roe et al. The nominee will almost certainly be Amy Coney Barrett, and they won’t want that fight – with her record – prior to an election. Especially with a shutdown looming on the horizon.

    In his mind, not entirely without merit, even if Trump loses he can still push the confirmation through in a lame duck session after the election with far less potential fallout and with his members under cover. Makes no sense to make it an issue before the election when he doesn’t really have to. I expect Trump will make the nomination prior to the election, although politically he shouldn’t, but the Senate won’t take it up until after the election has been decided.

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  32. gVOR08 says:

    @James Joyner:

    Nothing changes legally but I think losing an election is a clear moral signal. … If he loses in November, however, any major action will naturally be deserving of more scrutiny.

    “Clear moral signal” and “deserving of more scrutiny”. Confirmation in a lame duck session is an unlikely hypothetical in that McConnell can probably ram it through quickly. But thank you for agreeing that being a lame duck session would have no legal impact and for adding that nothing else would change. Or at least nothing that would matter to McConnell or his Party.

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  33. James Joyner says:

    @gVOR08: We don’t disagree. I’m assessing the lines of legitimacy and I think they shift with lame duck status.

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  34. Jay L Gischer says:

    I agree with Obama. When you cite “modern precedent”, why do you discount what Mitch McConnell himself did and said back in 2016?

    Yes, I agree it’s constitutional. But “precedent” either means something to all sides, or it doesn’t. I’m not going to agree to unilateral disarmament. And you either stick to your principles when it’s inconvenient to you, or they didn’t actually mean anything when they said so.

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  35. Jay L Gischer says:

    @HarvardLaw92: It’s a distinct possibility that he thinks politics will work better for him that way. He wants to motivate his voters to turn out, and the prospect of getting a 6-3 majority is one major motivator for all those R voters who really don’t like Trump very much. I don’t expect Trump to understand this, but McConnell does.

    He will do whatever works better for him politically, and he’s pretty darn good at figuring out what that is.

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  36. Jay L Gischer says:

    Just wanted to drop this quote:

    The only relevant and timely thing I can think to add is this: You can’t work this kind of problem or operate in this kind of environment unless you’re ready to say what you’re going to do. You can’t start by saying McConnell has to follow his rule. You need to say what you’ll do when he doesn’t. Otherwise you’ve got one side with words and the other with the ability to act. And that’s a loser’s hand.

    From Josh Marshall.

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  37. Bill says:

    @SteveCanyon:

    What precedent is this? Reagan nominated O’Connor, Scalia, Kennedy and Bork.

    You forgot Douglas Ginsburg.

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  38. @James Joyner:

    It would be a naked power grab that’s beyond the pale of the system

    No, like stopping Garland and adding whomever it is that Trump will appoint, it is using constitutionally allowed processes to try and address the problems of the current system.

    I am not sure what else to do at this point.

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  39. Teve says:

    Interesting take here.

    @KevinMKruse

    Yep.

    FDR’s courtpacking effort failed because most Americans still (wrongly) saw the Court as divorced from politics and thus believed FDR had violated that norm.

    That’s not remotely the case today. A similar move would be seen as a warranted reaction to GOP’s overreach.

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  40. HarvardLaw92 says:

    @Jay L Gischer:

    I agree. The risk there is that Roe as an issue has generally proven to be more effective at motivating Democratic turnout than it has been for Republicans. I’m pretty sure he well knows that Trump is on borrowed time at this point. There is little chance of avoiding that loss. What he can do is preserve his chances of retaining control of the Senate. He doesn’t accomplish that by giving Dem voters another reason to show up or House leadership a reason to (and cover for) shutting down the government over the issue.

    Speaking strictly from a political strategy standpoint, he should be noncommittal now, make nice noises about seeing how the election turns out before setting off on something as drastic as confirming a justice, cut a deal with Pelosi to get the shutdown avoided, and then ram her confirmation through in lame duck when the Dems would be powerless to stop it and they’d have already lost the window to use it for election leverage. It won’t fool anybody with a brain, but it’ll neuter the issue from the perspective of Dems being able to use it against him until it’s too late to make a difference for them.

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  41. @Kingdaddy:

    on the question of DC and Puerto Rico, there is a huge democratic principle.

    This is the core issue. All citizens should have representation in government (I would include all the citizens of the other territories as well).

    Apart from: “We’ve always done it that way” there really isn’t a good argument to treat some citizens like they are second-class because of where they reside.

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  42. @James Joyner:

    Regardless, pairing DC and PR statehood in a move rammed through by Democrats would rightly be seen as a big Eff You to half the country and spark a massive backlash.

    Less than half the country, which is kind of the point.

    Quite frankly, the fact that Trump is president and will have, it would seem, appointed 3 Justices is a big Eff You to more than half the country. (As is the fact that if he wins a second term, it will almost certainly be, again, because of an inversion in the vote).

    And I know you know that.

    But I bring this up because if you are concerned about civil unrest, the existing Eff Yous have got to be addressed somehow,

    I understand where you are coming from (and have some real sympathy for your position), but as I wrote in my post this morning, I am to the point where I am not sure what else can be done except dramatic, but constitutional, moves went he majority of the country actually controls the government for brief periods of time.

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  43. We’re in Constitutional Calvinball/hardball and have been for two decades (Bush v Gore) with the courts. There is nothing stopping the court having 13 or 15 justices and in repeated iteration games, bad behavior only stops when there are clear and immediate consequences. Over the long run, a Constitutional amendment for fixed terms and regular replacement schedules is a stable equlibrium. anything else is an unstable equilibirum.

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  44. @James Joyner: As if calling in federal troops and police forces for a photo-op is not an affront to democratic governance.

    We’re not in a good place and calvinball is the dominant paradigm.

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  45. HarvardLaw92 says:

    @Steven L. Taylor:

    The problem there is that DC statehood would require amending Article I. There is no way around that, and the other states will never agree to ratify such an amendment. It’s a non-starter.

    With regard to PR, statehood has always been initiated at the request of the people living in a territory and by their consent. The voters in PR have been pretty adamant that they don’t want it, so another non-starter.

    I fully agree with the principle you’re stating – they should have representation, but we have better odds of being flattened by an asteroid. It’s just not in the realm of the possible.

    Packing the court, meanwhile, is a great deal easier. There is already a strong (and basically justifiable) drive to split the 9th Circuit. Package that with adding justices to the court and it’s just a matter of getting Congress to sign off on it. If the Dems win the Senate, especially if McConnell rams ACB through in lame duck as I expect, it’ll be a done deal in early 2021.

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  46. EddieInCA says:

    @James Joyner:

    Regardless, pairing DC and PR statehood in a move rammed through by Democrats would rightly be seen as a big Eff You to half the country and spark a massive backlash.

    Less than HALF the country. That’s the whole pucking phoint.

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  47. SteveCanyon says:

    @James Joyner: The majority of opinions Kennedy authored were conservative and he was viewed as a conservative when he was nominated. Yes Souter turned out to be a moderate but when he was nominated he was considered a conservative. (As Wikipedia says, “He was nominated for the Supreme Court without a significant “paper trail” but was expected to be a conservative Justice.”) In fact Republicans have griped for years about how Souter turned on them. As noted in another comment I did leave out Ginsburg. But he withdrew for marijuana use so I thought him not relevant to my point.

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  48. EddieInCA says:

    Dr. Joyner – You’re still defending the indefensible. You’re saying Legal and Constitutional like they mean something anymore. A government only works if it’s supported by the people. The GOP keep stepping on accepted norms, and you just keep saying “Oh, well. It’s legal. But damn those Democrats better not step out of line, or else it will REALLY get bad.”

    EFF you. Seriously.

    You expect Dems to play by a different set of rules over and over and over and over and over again.

    So I say again. Efff you.

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  49. Scott O says:

    @James Joyner: “ ending the legitimacy of our system of government”

    To me that ship has sailed.

    “a big Eff You to half the country”

    That’s how I viewed Trump’s nomination. His election was an even bigger Eff You. Is electing a man who does his best to turn us against each other not a recipe for civil war?

    ETA, I see that Dr Taylor has addressed these points

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  50. James Joyner says:

    @HarvardLaw92:

    The problem there is that DC statehood would require amending Article I. There is no way around that, and the other states will never agree to ratify such an amendment. It’s a non-starter.

    I think there’s a reasonable argument that you could make the federal District smaller and carve out a New Columbia or some such out of residential DC. But, unless we repeal the 23rd Amendment, that would be perverse indeed.

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  51. James Joyner says:

    @Scott O:

    That’s how I viewed Trump’s nomination. His election was an even bigger Eff You. Is electing a man who does his best to turn us against each other not a recipe for civil war?

    He . . . won the election. I thought he was a shitty choice and proved correct. But his opponent didn’t turn out the vote in states Democrats traditionally won. The winner of the election is allowed to govern.

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  52. James Joyner says:

    @EddieInCA:

    A government only works if it’s supported by the people. The GOP keep stepping on accepted norms, and you just keep saying “Oh, well. It’s legal. But damn those Democrats better not step out of line, or else it will REALLY get bad.”

    I call out norm violations by Republicans on a regular basis. I endorsed and voted for the last two Democratic nominees for President.

    I thought the Garland gambit was a horrible precedent. But, had Clinton won the election, it would have come to naught. Changing the size of the Supreme Court is a MASSIVE escalation that will simply render that institution illegitimate.

    Rather than blow up the system, I would prefer Democrats to fix the system. Invest in voting infrastructure. Root out voter suppression practices. Even expand the size of the House of Representatives to come in line with the Constitution (and thus indirectly change the Electoral College).

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  53. EddieInCA says:

    @James Joyner:

    Rather than blow up the system, I would prefer Democrats to fix the system. Invest in voting infrastructure. Root out voter suppression practices. Even expand the size of the House of Representatives to come in line with the Constitution (and thus indirectly change the Electoral College).

    You’re a smart man. A very smart man. But, damn, you can be dense when it comes to the real world.

    How the hell are Dems going to stop Voter suppression tactics? Dems won multiple governors races and watched GOP controlled state legislatures take away power from the Governor.

    Dems won 67% of the vote in Wisconsin but only won 35% of the seats allocated.

    Stop it. The system is broken, and you’re saying that bandaids will fix it. No. F-that. I want them to blow it up, and make the GOP pay for the BS. You think its’ a massive escalation? No. Stealing a seat from Obama was a massive escalation. This is payback.

    I’m a center-left person, but the last two years have put me firmly into the “almost a damn socialist” camp, because this shit cannot continue.

    So, No. I say it again. EFF you and that position.

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  54. HarvardLaw92 says:

    @James Joyner:

    The courts have been fairly clear that the “exclusive legislation” verbiage of clause 17 was intended to forestall statehood for the district. You’d need to obviate that verbiage, or whatever enabling statute you pass will be subject to challenge as a violation of Article I. That challenge would likely succeed, especially with this court.

    It would make more sense from a legal perspective to just seek to reverse the cession of land from Maryland that established the extant portion of the district in the first place – if the goal is actually to provide the residents of the district with the same degree of representation (which they deserve) as everybody else. That process has, after all, already occurred once in our history, so there is established precedent for it. The problem is that justification (representation) is somewhat being utilized as an umbrella for other, somewhat more partisan goals, and that’s fairly transparent.

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  55. dazedandconfused says:

    James,

    I can’t blithely dismiss Obama’s point. A major reason we instituted rule of law is to prevent the tyranny of the majority. Fairness in law must exist or that is lost, and that loss is more than unseemly.

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  56. James Joyner says:

    @HarvardLaw92: My longstanding position is retrocession, whether real or virtual, as well. But that’s mostly because I oppose the creation of any more small states so long as we have the absurd system we have now.

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  57. James Joyner says:

    @EddieInCA:

    Stealing a seat from Obama was a massive escalation. This is payback.

    I saw it as a fairly minor escalation of an ongoing process dating back to at least Bork of going tit-for-tat. It was only especially egregious because of the timing; it would have seemed perfectly reasonable in September but seemed outrageous in March.

    Republicans have, despite a slim majority, lost several cases. They had majorities in both Houses in 2017 but didn’t pack the courts.

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  58. wr says:

    @James Joyner: “I think the system needs serious reform but it’s just slightly skewed, not broken beyond repair.”

    Because you ignore the Senate — or wave this away by saying “well, that’s what the constitution says.”

    We are turning into a third-world kakistocracy because the Republicans have decided that laws only apply to Democrats. No matter how many times you say “but the senate is described in the constitution” it doesn’t change the real damage being done to real lives. I’m sure your arguments are valid and would do very well in a formal debate — but that has nothing to do with the reality of how people live and — far too frequently in the last six months — die.

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  59. wr says:

    @James Joyner: “Even if Roe were overturned, abortion would remain legal in Blue America and, indeed, much of the rest.”

    Oh, good. Only women in states where I don’t live will die because abortion is forced underground. I guess I have no reason to complain!

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  60. MarkedMan says:

    @James Joyner:

    Changing the size of the Supreme Court is a MASSIVE escalation that will simply render that institution illegitimate.

    The Supreme Court is a hair’s breadth away from illegitimacy in the eyes of much of the country now, and I don’t think you realize the damage another Trumper Justice rushed into place on the cooling corpse of the most beloved liberal Justice will do to this country. Any ruling, and I mean any ruling, that such a court makes in the coming election that in any way favors Trump will be viewed as corrupt. I won’t accept such a ruling and am perfectly willing to storm the walls of the White House if it happens, and I just turned 60 today. James, you have no effing idea how angry those younger than us are over this. The Republicans have trashed this country and their future. Your advice that we must continue to take it because otherwise we might offend people from the failed Trump states is ludicrous. We should have sent the troops in and hung the first Klansmen from the nearest tree. Placating these people is what got us a century and a half of tens of millions of our citizens trod under the heel. So the Trumpers will take it as big eff you? Boo effing Hoo.

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  61. wr says:

    @Michael Cain: “a number of things devolving back to the states. How elections are conducted, for example. Environmental regulation also comes to mind:”

    Well, it’s sure a good thing that toxic waste dumped into the air and water can’t travel across state lines!

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  62. @wr: FWIW, it is already very difficult to get an abortion in many deep red states. We might be better off if the issue devolved to legislatures instead of being eternally part of the SCOTUS fights, and by extension POTUS elections.

    Think about how many people currently hold their nose and vote for Trump because they think they are stopping the murder of babies.

    What if that ceased to be an issue for presidential elections?

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  63. wr says:

    @HarvardLaw92: “The voters in PR have been pretty adamant that they don’t want it, so another non-starter.”

    The voters is Northern Ireland have been pretty adamant that they don’t want to leave the UK and unite with the Republic of Ireland. But recently polls have started moving radically in the other direction as the Irish see how the Tories have so completely sold them out on Brexit.

    After the last four years, the people of PR might be ready to change their opinion…

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  64. Gustopher says:

    @James Joyner:

    I fear that this is a recipe for civil war.

    It would be a naked power grab that’s beyond the pale of the system—a nuclear bombardment compared to the BB gunshot that was the Garland gambit. Adding in the additional factor that DC and Puerto Rico and majority nonwhite will further inflame the situation, adding credence to the notion that the Democrats aim to replace white folks.

    Because only Democrats have agency.

    If you hope to get a workable compromise, both sides have to recognize that there is a problem. Right now, the Republicans in power don’t think there is a problem, and they need to eat a shit sandwich before they think there is a problem with unequal representation. Pack the court, and bring the Republicans to the table that way.

    On Puerto Rico, and the other territories, it’s long past time to give them Statehood or Freedom. Not for them, but for us — we are a country of equals, and we shouldn’t have second class citizens. If they don’t want to be states, they should be countries.

    And there we have the benefit that doing the right thing there puts things closer into alignment so this broken system we have can keep limping along for a few more years.

    You fear a civil war if the Democrats push as hard as Republicans do. Why don’t you fear one of the Republicans keep pushing?

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  65. wr says:

    @James Joyner: “Root out voter suppression practices”

    How? When the Roberts court has specifically ruled again and again that voter suppression practices are just fine.

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  66. Gustopher says:

    @Steven L. Taylor: The goal of the pro-life crowd isn’t to put abortion back in the hands of the states, it is to make it illegal everywhere.

    They call abortion infanticide, and murdering babies. I don’t think they are just NIMBYs on the issue. “Sure, murder babies over there, that’s fine, just not right here…”

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  67. wr says:

    @Steven L. Taylor: Alternatively, congress could pass legislation guaranteeing the woman’s right to control her body.

    But we’ve seen what happens when the issue devolves to state legislatures — we’ve already seen bills passing that allow women getting an abortion to be charged with murder.

    This is still the United States, not Gilead, and women should have basic rights no matter where they live.

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  68. James Joyner says:

    @wr:

    When the Roberts court has specifically ruled again and again that voter suppression practices are just fine.

    While I think they’ve gone too far in some rulings, the fact of the matter is that the Constitution kept in place the near-plenary power that state legislatures had over elections under the Articles. But Congress has enormous power to legislate, too, thanks to the 15th Amendment. The Court, correctly in my view, finally overturned the unconstitutional provisions of the Voting Rights Act of 1965 that accorded judicial oversight to only a handful of states. But they could absolutely legislate in a blanket manner in setting forth basic rules for representativeness of districts, ballot access, registration, and the like that would radically reduce the shenanigans.

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  69. Gustopher says:

    Would I view this as legitimate? I would. With a huge caveat: it needs to take place by the end of October.

    I really have no idea what you think is legitimate at this point.

    Sometimes it is “whatever the institutions allow”, and then you throw in a caveat like this.

    You worry about Democrats setting precedents, but think it’s wrong for the Democrats to follow precedents set by Republicans.

    It’s like you’re making it up as you go along so long as your side wins, and you haven’t quite realized that the current, pro-authoritarian Republican Party isn’t your side.

    Do you consider the Federalist Society your side? Because that I could at least understand.

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  70. Raoul says:

    This is power politics- pure and simple. Spare all the rationalizations and mentally contorted explanations. If Mitch can get the appointment through he will. If the Dems find the votes to pack the court in retaliation they will. You see how simple that was?

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  71. @Gustopher:

    The goal of the pro-life crowd isn’t to put abortion back in the hands of the states, it is to make it illegal everywhere.

    Trust me, I understand that.

    But if Roe were overturned, it would not make abortion illegal. It would revert the issue to state legilsatures.

    If Roe were no longer the focus of SCOTUS, it would change the political dynamic surrounding the Court and, by extension, the context for the presidency.

    Put another way: it would shift the focus of where pro-lifers would need to put their energies because it would be in a different place.

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  72. @wr: My point being that you are over-estimating the degree to which is not already the case that access is dictated by state. But yes, a Roe-less world could have a number of consequences.

    It is less that I am arguing in favor of that world as much as I am pointing out there are costs of the current status quo, some of which would be made better by shifting the fight.

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  73. Gustopher says:

    @ptfe:

    Lifetime appointments need to end and/or a set of non-lifetime justices need to be added

    As someone whose job is basically finding the alternatives that slip between the cracks, statements like these always trigger an almost instinctive response.

    We could limit the appointments to no longer be lifetime appointments… or we could limit their lives!

    I know, I know, it’s not a practical solution. If nothing else, a Supreme Court with a death sentence over their heads is going to make very odd decisions, and only the most committed ideologues would be willing to accept the appointment.

    But it’s a pretty clear sign that you’re not thinking through all the options when this isn’t even brought up.

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  74. James Joyner says:

    @Gustopher:

    I really have no idea what you think is legitimate at this point.

    Sometimes it is “whatever the institutions allow”, and then you throw in a caveat like this.

    You worry about Democrats setting precedents, but think it’s wrong for the Democrats to follow precedents set by Republicans.

    It’s like you’re making it up as you go along so long as your side wins, and you haven’t quite realized that the current, pro-authoritarian Republican Party isn’t your side.

    While I don’t identify as a Democrat, I’m functionally a member of that party at this point. I voted for their Presidential nominee and Representative in 2016; have voted for their gubernatorial, senatorial, and US Representatives 2017, 2018, and 2019; voted in their 2020 presidential primary, and will vote for their nominees come November.

    Party infighting is an inherent feature of our system. In cases, like Supreme Court nominations, where the President requires advice and consent of the Senate, it’s going to get contentious in election years. Had McConnell and company denied Obama a pick at this juncture in 2016, I would have thought it fine. In March, though, I thought it was unseemly—especially since Obama already compromised in nominating an older, moderate candidate.

    Similarly, I thought passing ObamaCare after Massachusetts elected Scott Brown to Ted Kennedy’s seat specifically to stop ObamaCare was unseemly. Legislation that big shouldn’t get through on parlor tricks.

    I think a lame duck President—one who has lost a re-election bid or a second termer whose party has lost in the election—should not pick Supreme Court justices. They have the legal right to do so but it’s beyond unseemly—a direct rebuke of the will of the voters on a major issue.

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  75. Gustopher says:

    @Steven L. Taylor:

    If Roe were no longer the focus of SCOTUS, it would change the political dynamic surrounding the Court and, by extension, the context for the presidency.

    Pro-lifer’s would want a Supreme Court ruling balancing the life of the unborn child on the same level as the life of the mother. The focus would still by SCOTUS, they would just move on to the same goal.

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  76. charon says:

    @James Joyner:

    It would be one thing if McConnell had said (truthfully) re Garland “We are doing this because we can.” (Which, obviously, most observers realized.)

    Instead, he lied, some BS about the President’s last year blah blah blah. Now, he looks like a hypocrite and that will blow back on him, and rightly so.

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  77. Raoul says:

    When the abortion issue is returned to the states- what happens when a woman has an abortion in Alabama, gets caught and escapes to Maryland? Are we going to have a Fugitive Abortionist Act? I suggest Congress pass a federal abortion law- something to the effect that it cannot be regulated by the states the first twenty weeks of gestation.

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  78. Raoul says:

    JJ: it is my understanding that Scott Brown won because the opponent was a particular bad candidate. It’s doubtful that the first state to pass an ACA law which was deemed very popular voted for Brown on this issue. That’s not say money from outside the state came in because of it.

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  79. Raoul says:

    JJ: Most constitutional scholars believe that DC can be a made a state as long as you carve out a federal enclave. The 23 amendment will literally become moot.

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  80. SC_Birdflyte says:

    My personally favored solution to the issue of whether or not to pack the court is this: Assuming Biden wins the election and the Dems regain control of the Senate, the Democratic leadership calls the Republican leadership in and offers them a choice: either live with 4 new Justices on SCOTUS, plus statehood for DC and Puerto Rico, or their vigorous backing for a Constitutional amendment establishing fixed terms for all Federal judges, to be imposed starting two years after ratification of said amendment.

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  81. Kingdaddy says:

    @James Joyner:

    He . . . won the election. I thought he was a shitty choice and proved correct. But his opponent didn’t turn out the vote in states Democrats traditionally won. The winner of the election is allowed to govern.

    In his mind, and in the minds of his enablers, he did not win the election to become President of the United States. He became the leader of some portion of the country, excluding everybody else. That portion of the country now has the “right” to seize control of the federal government and distribute spoils to themselves.

    In fact, he’s not even president of his own followers. If you live in a “blue state,” but you voted for him, screw you. Too bad if you’re on fire, or you need federal aid to address some other problem.

    I know this is what it must have felt like if you were, say, a right-wing Southerner when Kennedy and Johnson were presidents. But there are obvious differences, such as governing in the actual interest of the entire country. Or believing that it was OK for the other side to win the other election. And, of course, there should be a federal interest in ensuring that civil rights are not contingent on your current state of residence.

    Which makes a couple of these comments on this thread about why you shouldn’t worry about the federal role in civil rights and the environment hard to understand. Devolving abortion rights decisions to the states isn’t a good thing, because it then makes a critical civil rights decision, whether you favor the mother or the fetus, just an accident of zip code. Environmental regulations are extremely inappropriate to devolve too much to the states, given the externalities. Smoke spreading from the West Coast across a big swath of the rest of the country is just one immediate, easy-to-understand example.

    So, no, I’m not comforted by a states-centric approach to these issues.

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  82. Michael Cain says:

    @SC_Birdflyte:

    …or their vigorous backing for a Constitutional amendment establishing fixed terms for all Federal judges, to be imposed starting two years after ratification of said amendment.

    How long are they going to allow for ratification? Three years? Five? I’ll take the side of the bet that says there are at least 13 state legislatures that won’t ratify it no matter what their Senators say, at least partially because they think the Democrats will lose their narrow Senate majority before the ratification deadline expires.

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  83. Kingdaddy says:

    @Raoul: The comparison with slavery occurred to me, too. I would not be surprised if anti-abortion states took action to interfere with the right to abortions in other states. Just make it a crime for someone to have an abortion in another state. In fact, I’d be surprised if that did not happen.

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  84. Just nutha ignint cracker says:

    @charon: In what way will looking like a hypocrite blow back on McConnell? Who didn’t already know that he was a hypocrite? Who’s going to vote against him that would have voted for him now that the cat’s out of the bag? Who’s going to oppose him as next Senate Majority Leader because they don’t want a hypocrite in charge? Or in the alternative, vote for someone else as Minority Leader because of it? Is Elaine Cho going to be forced out of her DOT post? Where’s the blow back? I don’t see it.

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  85. Michael Cain says:

    @Kingdaddy:

    Just make it a crime for someone to have an abortion in another state. In fact, I’d be surprised if that did not happen.

    I know we’re arguing about the Supreme Court here, but wouldn’t such a law run into jurisdictional issues? State A is not normally allowed to prosecute people who performed acts legal in State B in State B. A few years ago the SCOTUS declined to hear a case where Nebraska and Oklahoma sued Colorado over Colorado’s state-level legalization of marijuana.

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  86. Joe says:

    And you either stick to your principles when it’s inconvenient to you, or they didn’t actually mean anything when they said so.

    I am sorry, Jay, is there a question here somewhere?

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  87. charon says:

    @Just nutha ignint cracker:

    In what way will looking like a hypocrite blow back on McConnell?

    It appears Dems are really pissed, fundraising through Act Blue is through the roof, people showing up at early voting sites mentioning this.

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  88. Kingdaddy says:

    @Michael Cain: Definitely not a lawyer, so I have no way of saying definitively whether a state can make an act committed in another state a crime. I do know that we have laws governing what corporations do outside the United States (bribery, blood diamond purchases, etc.), but I have no idea about the legal principles in play, and whether they apply to state laws.

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  89. Michael Cain says:

    @Kingdaddy:

    So, no, I’m not comforted by a states-centric approach to these issues.

    An obnoxious way to phrase this is, “How long are you willing to suffer the effects of having to fight something like Reconstruction again?” More importantly than you personally, how long are some of the blue state legislatures willing to suffer the effects of fighting something like Reconstruction again?

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  90. @HarvardLaw92:

    The problem there is that DC statehood would require amending Article I

    But I don’t think it does. I think you can redefine the District to basically the Mall to include the WH and Capitol Hill and then create a state out of the rest of the what is now the District.

    Article I gives a maximum size, but not a minimum one.

    Or am I missing something?

    With regard to PR, statehood has always been initiated at the request of the people living in a territory and by their consent. The voters in PR have been pretty adamant that they don’t want it, so another non-starter.

    This is a fair and legitimate consideration. Given the island’s various recent woes, however (and I mean more than the hurricanes), it seems possible to revisit the issue.

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  91. @James Joyner:

    But, unless we repeal the 23rd Amendment, that would be perverse indeed.

    Since leaving the 23rd in place would favor Democrats, it would not be hard to get the needed support to repeal it, I would think.

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  92. @James Joyner:

    Changing the size of the Supreme Court is a MASSIVE escalation that will simply render that institution illegitimate.

    You keep saying that, and I agree that expansion would further politicize it. But unless their ruling would be enforced, they would remain a legitimate part of the US government.

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  93. @Kingdaddy:

    So, no, I’m not comforted by a states-centric approach to these issues.

    To be clear, I am not either.

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  94. HarvardLaw92 says:

    @wr:

    Sure, if they vote for it, by all means. Historically they just haven’t, but anything is possible. There is supposedly yet another referendum coming up in November.

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  95. HarvardLaw92 says:

    @Steven L. Taylor:

    See the explanation I gave James above regarding the exclusive legislation verbiage of clause 17. The courts have consistently interpreted that to forestall statehood, so there is precedent that any move by Congress to attempt to pursue statehood would run afoul of Article I for that reason. This court, most certainly, would decimate such an attempt – gleefully – when it got in front of them (as it would, without doubt. Republican states would file suit before the ink was dry on the enabling statute). To pursue statehood for DC, you need to remove that constitutional impediment, and that will require an amendment none of the red states will ever vote to ratify. It’s just a non-starter.

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  96. Teve says:

    The Pod Save America people have a fundraiser called Get Mitch or Die Trying, raising money for 10 Democratic candidates. In the 36 hours or so since Ginsberg died, they’ve raised $17 million

    I don’t think the MAGA people are going to be happy on November 4.

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  97. HarvardLaw92 says:

    @Michael Cain: @Kingdaddy:

    Acts committed in one state generally have no jurisdictional relevance in another state, so no. That would be a non-starter.

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  98. Raoul says:

    There will be a plebiscite on the question of Puerto Rico status this Election Day so the anti-statehooders cannot boycott it like they did last time. A poll taken many months ago had a vote for statehood way ahead.

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  99. Scott O says:

    @EddieInCA:
    “So I say again. Efff you‘

    Eddie, Sir, James is not your enemy.

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  100. EddieInCA says:

    @Scott O:

    @EddieInCA:
    “So I say again. Efff you‘

    Eddie, Sir, James is not your enemy.

    On this issue, he absolutely is. He’s okay with what the GOP did to Garland. But he’s against Dems fighting back. I’ll stick to what I said earlier, thank you.

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  101. An Interested Party says:

    Adding in the additional factor that DC and Puerto Rico and majority nonwhite will further inflame the situation, adding credence to the notion that the Democrats aim to replace white folks.

    Wow…I don’t think you’re a racist but that really sounds like a racist argument…such an argument could be used to explain why Republicans are doing everything they can to make it harder for ethnic minorities to vote…because poor white folks don’t want to be replaced…

    Rather than blow up the system, I would prefer Democrats to fix the system.

    Mitch McConnell has already blown up the system…

    The problem is that justification (representation) is somewhat being utilized as an umbrella for other, somewhat more partisan goals, and that’s fairly transparent.

    It’s been done that way for a very long time, why stop now…

    I saw it as a fairly minor escalation of an ongoing process dating back to at least Bork of going tit-for-tat.

    Republicans/conservatives love to wave the bloody shirt of the Bork nomination, but here’s the thing, Bork actually got a hearing and an up or down vote from the full Senate, so that really can’t
    be used to justify what happened to Merrick Garland…

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  102. Scott O says:

    @EddieInCA: About a month or two ago you posted a comment about your life experiences, dealings with the police, that I found very impactful. There was an Eff You James in there, or maybe the follow ups, that I thought was warranted.

    I think the F bomb should be reserved for extreme situations. One can express very strong disagreement while still being polite.

    Dr Joyner is on our side most of the time. I respect both you and he.

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  103. Moosebreath says:

    @An Interested Party:

    “Republicans/conservatives love to wave the bloody shirt of the Bork nomination, but here’s the thing, Bork actually got a hearing and an up or down vote from the full Senate, so that really can’t be used to justify what happened to Merrick Garland…”

    Seconded.

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  104. EddieInCA says:

    @Scott O:

    Where I come from, a tossed F Bomb is being polite.

    Impolite is kicking the shit out of said person to whom the F Bomb was tossed.

    You can take the kid out of the hood, but you’ll NEVER take the hood out of the kid.

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  105. Gustopher says:

    @An Interested Party:

    Republicans/conservatives love to wave the bloody shirt of the Bork nomination,

    Maybe don’t nominate the man who said yes during the Friday Night Massacre? Just spitballing, but they probably could have gotten a crazed loon on the court if they didn’t insist on that crazed loon.

    Trump is going to nominate Bill Barr, isn’t he?

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  106. EddieInCA says:

    https://twitter.com/ProjectLincoln/status/1307492421572472836?ref_src=twsrc^tfw|twcamp^tweetembed|twterm^1307492421572472836|twgr^share_1&ref_url=https://www.rawstory.com/2020/09/lincoln-project-releases-devastating-new-ad-against-republican-lindsey-graham/

    Go donate.

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  107. Teve says:

    @Gustopher:

    loon.

    Trump is going to nominate Bill Barr, isn’t he?

    If he’s got to nominate somebody, Barr’s just about the best. Barr is 70 years old and it looks like he doesn’t exactly run laps with Fauci.

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  108. Jim Brown 32 says:

    Slighty disappointed that, after declaring his thinking about his politics gad “evolved”, Dr Joyner comes up with a streaming pile of a take like this.

    You still dont get it Joyner…the old paradigms have changed. Your take is relevant to American politics before 2001. Im going to say this again… tge Republican party is no longer in Competition with the Democratic Party.

    They are at War.

    If they were still in competition, they would acknowledge Democratic Party legitimacy and right to governance. It should be clear to you by now that the Republican party considers the Democratic party and their voters to be illegitimate. Their adherance to laws and norms and complaints about them are solely based on whats beneficial to their party.

    One of the worst mistakes a military man can make is not understanding the nature of the fight he’s in…and fighting the last War. If Democrats took your recommendations, they would be further marginalized, disrespected, and frankly…embolden Republicans to continue their course without any recalculations in tactics.

    Im sorry James, the train has truly left the station. We are already on the road to crisis. Your course of action is to prevent us from getting on that road. Thats OBE now. In order to gain leverage for de-escalation..Democratic must not respond proportionately. They have to turn the heat up…but leave room for an exit ramp. Something the Republican party isnt even doing…because they obviously have no interest in returning to a cooperative norm. They want to dominate without any check.

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  109. Gustopher says:

    @Teve: you’re right, he’ll nominate Jared or Ivanka. SCJPLF. (Supreme Court Justice the President’d Like To F)

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  110. wr says:

    @EddieInCA: “Where I come from, a tossed F Bomb is being polite”

    If I am elected president in November, my first act will be to pass a bill outlawing the moronic phrase “the F bonb.”

    Fuck is not a bomb. Fuck is a word. Fuck is probably the most-used word in the American vocabulary, and to treat it as some kind of deadly epithet, something too dangerous or vulgar ever to be mentioned, makes us all into infants.

    Especially since the people who are so considerate and thoughtful that they say “F bomb” instead of fuck use the word fuck as much as anyone else.

    No disrespect meant to you or the person you were conversing about, by the way. This has pissed me off for years, and I’m using your comment as my excuse for bringing it up…

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  111. EddieInCA says:

    @wr:

    Totally fair point. No disrespect taken.

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  112. SC_Birdflyte says:

    @Michael Cain: A good point. Perhaps some additional pressure would need to be applied.

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  113. An Interested Party says:

    @wr: Fuck

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