Just picking up Walt's comment 120 toward the end of Part Trois: I don't think court packing is around the corner, but we have to prepare the ground for it.

Prepare the ground for it by ...? Just generally floating the idea, stiffening the resolve of the resistance, etc.? The biggest issue in a successful court-packing maneuver (besides winning both houses of Congress plus the Presidency, obvs.) is that a number of Democratic Senators would face serious electoral blowback from their constituents.

It did strike me earlier today that if Kavanaugh is indeed confirmed, people are not going to stop digging into his background as a shithead; that's fodder for the impeachment option, though.

Actually, not just Dem Senators - also in the House.

I think you prepare the ground for court packing by normalizing the idea. For now, it means talking about it publicly. Maybe some good think pieces will emerge. The idea needs to gain respectability.

By 2020, every Dem running in Iowa or New Hampshire should have had to stake out a position on it - if not endorsing court packing, at least acknowledging it. Then, if the Dems don't fuck up and actually gain power that year, we can take stock and evaluate if its still an appropriate option that's worth spending the political capital on.

Some distraction for the lawyers. This 1999 WSJ op-ed by Kavanaugh, on Rice v. Cayetano, was posted on Twitter. The Rehnquist court found in favor of Rice 7-2, in accord with Kavanaugh's position (Stevens & Ginsburg dissented).

The Twitter thread (sans replies) is worth reading if you can stand the medium, e.g.: "On the 1st day of Kavanaugh's confirmation hearings a Native Hawaiian law professor told me this: 'The Supreme Court has always been an inhospitable venue for Native Hawaiian issues and indigenous issues. But this is just going to solidify that.'" It's no doubt true, although this is not my usual beat and I don't know what specific cases are likely to come up in the next decade or so.

I wonder if Kav's defense of the inherent dignity of immigrants would seem rhetorically unwise today, in this extremely post-Lincoln era for the GOP.

The thing to concentrate on right now is the mid-terms.* Talking about "impeachment" is a distraction that (as you pointed out) might actually hurt rather than help.

Impeachment is "easy" (not really) if the Dems get a majority in the House. What is nearly impossible is conviction after impeachment, since it takes a 2/3rds majority. That is just not in sight for Kavanaugh if he is confirmed, and not in sight for Trump either, barring some incredible intensification in one of his scandals. For example, the IRS seems uninterested in looking into his business dealings from 30+ years ago. NY is looking into them: that's a more fruitful source of hope, perhaps, but something like that could take years to resolve.

As an aside, court packing is another thing I keep hearing people propose (or SC term limits, or whatever). That one requires legislation, so therefore control of House, Senate, and Presidency. Save it for post-2020 if a Dem is elected President.

* This is true even if somehow Kavanaugh isn't confirmed.

Here are links to Part Trois, Part Deaux, and the first part, if anyone else wants to revisit the earlier parts of this epic saga.

Random, unresearched thought: exactly how bad is it if for a few decades the executive and legislature are solidly left-wing and the judicial is solidly right-wing? Obviously it's bad and that combination of circumstances is probably very unlikely, but, like, better, worse, or the same as a different branch captured for that long?

Collins sounds like she's a Yes.

Where is this stuff about "dark money left-wing organizations" coming from? Numerous Republican leaders have alluded to it -- I don't know what they're talking about.

A Supreme Court that overrules Wong Kim Ark is hard to come back from. How about Heart of Atlanta Motel as well?

I think fantasies like impeachment or court-packing is really harmful in the long run, because if Dems get the kind of narrow control that is right now the best case scenario, they can't do either, and then you end up with a bunch of pissed off people who thought they were promised more, and stay home the next time. We got killed in 2010 because some people thought an immediate end to the wars in Iraq and Afghanistan, and some sort of public option, had been promised in 2008. It doesn't matter that 80-90% of people understood what was going on -- that remaining 10-20% concluding that the Dems were no damn good and there's no point at all in voting was enough to set up a bloodbath.

exactly how bad is it if for a few decades the executive and legislature are solidly left-wing and the judicial is solidly right-wing?

I've been thinking about this, too. A well-functioning legislature would just rewrite policy to clarify and improve whatever the Supreme Court struck down. I can't imagine we'll ever have a well-functioning legislature.

I think fantasies like impeachment or court-packing is really harmful in the long run, because if Dems get the kind of narrow control that is right now the best case scenario, they can't do either, and then you end up with a bunch of pissed off people who thought they were promised more, and stay home the next time.

Technically my fantasy involves something bad befalling Kavanaugh and McConnell and the rest of the people I hate, making them all resign.

8.1: Are there pending cases before the Court putting those decisions in question? (First one to do with birthright citizenship, second one to do with enforcement of the Civil Rights Act of 1964, I gather).

Wait wait wait. In castigated the unknown leaker of Ford's letter, Collins just called Ford "a survivor," meaning... she thinks Kavanaugh assaulted her, but it's nbd? Or was that a slip?

I think she must be endorsing the view that Ford was assaulted, but it must have been someone else, not Kavanaugh.

Yes she went with the "I believe her but she's mistaken" approach. I watched a bit of the speech but couldn't stomach more than a few minutes, it was truly the distillation of the age-old "stupid or evil" question. She sounds so naive that you can't possibly think she believes all the bullshit she's spewing.
I hope in a few years someone edits together a nice interlaced montage of how many incorrect predictions Collins made in this speech. Kavanaugh will support Roe! Kavanaugh will respect precedent! Kavanaugh believes that presidents can be held legally accountable!

14: I think she's both, TBH.

Murkowski gets to vote "No", because Manchin voted yes. What's the appropriate response to Manchin's defection?

14: The phrase that comes to mind is "hollows out". We're already at the point where states and the federal government can impose a whole lot of restrictions on abortion as long as they don't completely outlaw it during the first trimester. Yet another question for the educated people around here, is there anything already written on the difference between overruling a precedent and hollowing it out?

It's the fusion of evil and stupidity for which no word really exists. I also listened only to a little of it and thought: alien mind, alien mind, alien mind. Like certain expressions of religious faith, the standpoint is beyond me.

NPR headline + angry senator photo: "Will the Kavanaugh Saga Leave Bruises That Heal Or Permanent Scars?" I assume (and am impressed) that it's set up so the "that's what she said" is implicit and the answer is obvious.

Technically my fantasy involves something bad befalling Kavanaugh and McConnell and the rest of the people I hate, making them all resign.

"Resign" was not how I expected that sentence to end.

You're right - "see the error of their ways and capitulate and govern from lefty principles" makes more sense.

If only we could find the right rationale to bring that about!

They'll have to fuck things up sufficient to cause pain for middle class white people before anything happens to change things.

A well-functioning legislature would just rewrite policy to clarify and improve whatever the Supreme Court struck down. I can't imagine we'll ever have a well-functioning legislature.

Not if the court brings back pre-New Deal jurisprudence to outlaw economic regulation in general.

Also: fucking fuckers, all of them.

You just wait until the Conservative party controls one of the branches to overturn the statute, like they did with the totally hallucinatiory voter rights decision. The only answer is to pack the court.(which probably doesn't actually require you to increase the number of judges)

The only answer is to pack the court.(which probably doesn't actually require you to increase the number of judges)

Huh? You mean via impeachment?

If Congress shrinks or eliminates a federal court who leaves? So couldn't you in theory shrink the court down to 1 then raise it back to 9 appointing new people. It's totally possible there is a rule saying you can't do this, but you know, appoint new people who say you can.

The Constitution says "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour", which is understood to mean lifetime tenure except via impeachment.

The ultimate comeback the legislative/executive branch can use is to change the things the SC has appellate jurisdiction over.

From Article III, Section 2: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

I recall the Republicans theorizing about this a gazillion years ago, I forget for what reason. (Probably abortion; everything is about abortion.) Nothing came of it but it's an interesting idea.

Still, the point is you can't do this without a majority. Hence, look to the midterms.

Everything is about abortion except abortion, which is about getting a Supreme Court that will say "putting nine-year-olds to work is fine if they they signed a contract."

I recall the Republicans theorizing about this a gazillion years ago, I forget for what reason.

They're always talking about jurisdiction-stripping. Most recent context I can recall was same-sex marriage. Last high-profile case I can think of where they actually did strip jurisdiction was over habeas for Gitmo detainees in the Military Commissions Act, but the Supreme Court struck that down.

The judges... shall hold their offices during good behaviour

But it doesn't say whose good behavior!

You guys, I think I found a loophole.

Fine, I bothered to find out what happened when they did shrink the court and my plan won't work without packing it first. Anyways the Dems should put 10 new car left justices on the court who promise to vote as a block, and then offer a constitutional amendment to change the court in some durable less shitty way. (Elected, limited terms, supermajority needed to overturn legislation.)

Parsi, one of the early things they teach you in law school is that no one argued for overruling Swift v Tyson in Erie Railroad Co. v. Tompkins. The whole balls and strikes frame is complete bullshit: they use cases as vehicles to accomplish what they want.

The question isn't whether someone in some case has asked to overturn Heart of Atlanta Motel-- every case touching civil rights laws gives an opportunity to either do it directly, or indirectly. Similarly, I can imagine all sorts of cases that could be used to call Wong Kim Ark into question; I'll bet they have a dozen or two every term.

IIRC, at least Thomas and Gorsuch want to kill dormant commerce clause jurispridence. This is a thing they'll be looking for chances to do.

LOL ygleasias basically posted my exact comment to twitter an hour after I made my post.

You guys are peddling a dangerous fantasy. And Yggles' whole now people will be see how badly the Supreme Court sucks, and finally be motivated to give a shit line falls apart in the despair that follows failure to reverse/undo bad bad shit.

The composition of the Supreme Court was the premier issue in the elections of 2000, 2004, and 2016. Didn't work then, isn't going to work next time or 2024.

Yeah, there is some fantasy going on and to some extent it should be contained. But there is a need for some fundamental changes in how the system operates. How do you get there from here? It feels like traditional means won't do it.

Then you don't run on it, you just do it. It's going to have to happen for the left to do anything.
The Supreme Court can't change hands without a once in a lifetime event like Scalia happening again, when the Dems control the White House, we can't postpone fixing healthcare or having an EPA until then.

10: ...forced by shame to end their lives by walking into an icy new hampshire lake at midnight with the pockets of their wool overcoats filled with heavy stones.

For all the nostalgia about Obama, he was inadequate to the need. I reserve some of my fury for him. He protected his own image when he should have been fighting harder; leaving us vulnerable to this.

In which, on foreign policy, you share the company of Robert Kagan. Of all people.

32. So we should all be trying to persuade any nuns we know to go on a bank robbery spree. But not until there's a D president and D majority in the Senate.

Ben Affleck tried that already.

Not to mention that all the "clever" ideas can also be used by the Republicans when they have power, as we have recently found out. Of course there's also the coming "permanent Democratic demographic majority." Like fusion it is always a generation away. What do we do in the meantime?

Mental and institutional hardening.

Domestic opponents and their foreign allies have changed the game which will require new tools.

What do we do in the meantime?

Get hired to do the overnight cleaning at Fox News headquarters. Then unplug everything.

46: Bellingcat contributed also to those Cameroon stories.

I think one weakness of the left broadly - defined as anyone left of Manchin, though especially the less engaged / more centrist - is the tendency to see the pendulum of history as an automatic process, rather than something we have to work at.

When you look at the histories of other republics it seems like largely luck that the US has had so many peaceful transitions of power over its existence.

The 2010 backlash was much stronger and more lasting than the 2006 backlash, and that's because the GOP worked so hard for it.

No, its because 2010 was a census year and they locked in the state legislatures and were able to gerrymander the shit out of things. Its a systemic problem, not a "those guys wanted it more" problem.

Yes, I stated it way too strongly, there's plenty systemic but I still think they recognize the slog nature of it. Note many of the systemic advantages are the result of their work (and yes, money available) over prior decades.

Yes. You need to win state legislatures.

49: Tim Snyder's got your back!

49: I would have made the exact opposite diagnosis, that liberals are all pessimists who always react to setbacks, "Well, that's it. We've lost forever."

Note many of the systemic advantages are the result of their work

Work, but also they outsmarted the left. They've had a plan for the last 50 years. We have not.

Our plan to to help people who don't have any money. Theirs is to help people who have a whole lot of money. Guess which side is better funded?

54 Not all pessimists, but we have enough in our coalition to mean we often have a headwind when we shouldn't. You don't have to look very hard to find people identifying left who think the Dems purposely held back re Kavanaugh. And this means there's no point in even trying to get a Dem majority. Kav is getting confirmed because he, and Trump, successfully made this a litmus test issue for rank and file Republicans. Most of the people favoring his confirmation do so only because they was the other side to lose, not because they have an actual opinions on Judge Kavanugh. (One of my sister's friends is arguing with people on my FB feed like this. She really doesn't get that almost none of the people she's arguing with are opposing Kav on a he's-not-my-team basis.)

It's true that if the one thing you want is Trump's removal from office, a one seat Democratic majority is going to be useless to you.

want

Fuck

56: Every time anyone tries to make anything a litmus test for Democrats, we get bogged down in "but what about the red state Democrats like Manchin?" Why does that strategy only work for one side? (Because they're authoritarians, maybe.)

Seeing the spike in Republican enthusiasm is really driving home how significant misogyny is as a political force. Fundamental even.
I know, late to the party.

Our plan to to help people who don't have any money.

Helping people who don't have any money is a nice outcome for a plan, but its a shit plan on its own. Republicans did better because they focused on institution building - like ALEC, talk radio, wingnut welfare, evangelical churches, Fox News.

Meanwhile, the left has let our institutions go to shit. Unions, academia, newspapers, government bureaucracy, the welfare state. All these things have been in an ongoing process of decay since the end of the Johnson administration. And, just this week, the judicial branch has fallen.

We need a better plan.

59: because there are more red-state Democrats than blue-state Republicans (certainly in the Senate, and I believe that's true in the House as well).

Republicans did better because they focused on institution building - like ALEC, talk radio, wingnut welfare, evangelical churches, Fox News.

Meanwhile, the left has let our institutions go to shit. Unions, academia, newspapers, government bureaucracy, the welfare state.

Because those R institutions are 1) cheap or profitable, 2) don't rely on public funding, and 3) are mostly just propaganda machines. Whereas the lefty institutions you list 1) actually serve a purpose besides being a mouthpiece, and 2) thus are more expensive to run, depending, and 3) run on public funding and therefore need Republican votes at times to be funded.

61: I strongly believe that you need something like left wing nut welfare - not for intellectual hacks. But it needs to be possible for people of from lower to moderate income families to go into political jobs and believe that they will land on their feet if their candidate loses.

The Republicans in Texas kind of do this. I knew a guy from a lower income Hispanic background who was active in the Republican club in college - partly because it was a good way to network and get jobs. And this wasn't at an elite school.

At some level it's for the best they put someone so obviously unsuited and corrupt on the court. Presumably have years to find out about the shady finances etc.

65 is my hopeful scenario for this.

65: One theory is that Trump chose Kavanaugh because he has the goods on him, and so can be certain that Kavanaugh will always rule in his favor.

Didn't Trump choose Kav because he was the only one on Kennedy's short list that the federalist society would go for? Trump was lukewarm on the guy until he saw him willingly lie to win. Now Trump knows he'll rule explicitly to trigger the libs.

61 is phrased as though there are two parallel but separate processes going on, but I think it's more accurate to see them as two parts of the same process. The right has built up its network of institutions over decades specifically in order to destroy the institutions on the left, and they've been very successful because they have more money, which in turn is because they're the rich-people side. It's not true that the left hasn't emulated their institution-building plan (for any right-wing institution you care to name there's a left-wing equivalent), it just hasn't worked because those institutions have less money and are therefore less effective.

I think the only plan that has any hope of successfully is mass popular action, starting with but not limited to voting.

The sorts of structural changes that people keep talking about (court-packing, new states, etc.) may well help in the long run, but to be able to do them at all you need to win some elections, which is also what you need to do to do anything else effectively. So in the short term it's not like there are a bunch of different strategies that we need to decide between; there is one strategy that is necessary to have a chance of doing anything else.

70: Mass Popular Action requires institutions too. The evangelical churches are effective because people feel an ongoing connection to them outside of just the issues and then they have relationships which bring them out to the polls.

Dean had DFA. Bernie has Our Revolution, but you need an organization that people feel a part of which lasts and which offers some kind of community so that people are motivated to do the kind of crap work that organizing involves.

We used to have Acorn and democrats threw it under the bus.

Democracy for America still exists. Not sure how much it accomplishes though. I went to its Web site to try to find out about my friend who used to work there and signed up for their emails in the process so I guess I'll find out. That friend worked at Greenpeace more recently, and I don't even know where he is now. I should check.

73: I know it exists. I had a friend in England who was a member of the Labour Party. They actually had social events that people went to.

In Massachusetts the Raise Up coalition was able to get paid family leave and a $15 minimum wage passed.

I collected some signatures one day, but it was kind of isolating. I didn't really feel like I was getting involved in anything.

I went to one of the coalition group's calling events. It wasn't well organized, and I couldn't participate. I didn't realize that there would not be phones. You were supposed to bring your own smartphone and lap top. The program they used which blocked your personal number was neat and it gave you the name of the voter's rep. You could call from home if you wanted. But requiring both a computer and a smartphone left a lot of potential volunteers out of the process.

I think 71 is very right, but I don't know how to do something like that. I assume people more social than me have more connections and may not see the need, but you really need some kind of thing where people show up at something every so often.

I think you prepare the ground for court packing by keeping the Kavenaugh story alive for as long as new evidence of problem behaviour -- be it sexual, drinking, or political -- can be unearthed, and then mentioning it whenever commentary on the latest Kavenaugh problem is needed, pointing out that it is legal and constitutional, and ending with a reminder of Merrick Garland. In other words, as the Democrats' legal response to Republicans' shady, norm-breaking shaping of the court. It is only a norm that dictates 9 justices, and since Republicans have already stopped adhering to norms, Dems have no other way to respond if the court is going to represent the majority of Americans.

Then the next time there's a Democratic president and majority in both houses, pass something universally popular and wait for the SC to strike it down. And the ground will be laid.

As for building left institutions, I think a lot about how to counter reality-defying right wing media, which feels like such a big and hard-to-solve part of the problem. I remember hearing somewhere that Russian young people had basically learned to ignore state media, knowing it's all BS, and had become savvy at building their own narratives from online channels. It seems like focussing on younger, more media-skeptical people for whom not believing the garbage their parents are watching on Fox is an individuating exercise is a good start to the long-game part of institution building.

The problem with the reality-defying right-wing media isn't just that it is all BS. It's also that it means the right can get away with having-their-cake-and-eating-it things such as where Kavenaugh is either going to destroy Roe or keep it, depending on whether or not you are talking to a mall church or Senator Collins. That's a problem without a countermeasure that I want to see, because I don't actually want Democratic leaders to treat me the way the Republicans treat their rank and file voters.

https://thehill.com/blogs/blog-briefing-room/news/410243-cop-who-fatally-shot-tamir-rice-hired-by-ohio-police-department

If this is the kind of practical problems in the way of GOTV efforts these days, the problem seems both simpler and more complicated than I thought.

So how big does the concentration camp in Texas have to get before we're all 'Trump's Willing Executioners'?

(Not that there aren't plenty of ghosts of Yemeni kids who would like to have a word with those of us paying war taxes, but you know, out of sight, out of mind.)

76: "...and ending with a reminder of Merrick Garland."

We already have a slogan: Fight for fifteen!

Merrick Garland, who will finally get a hearing, and five distinguished women.

Given me druthers, I would also say that none of the distinguished women should be graduates of Harvard or Yale law schools, that some of them should have experience as defense attorneys, and that not more than two of them should be white.