I'm so depressed. And I don't think the Dems have the balls to pack the court because they'll feel like they're cheating or they'll catastrophize about how republicans will retaliate.

fuck fuck fuck.

Fuck us. Is there any leverage with someone like Susan Collins being worried about her seat? Any hope that Romney might commit to some democratic norms?

Tim just told me this, and my heart sank. It's an election year. We need to let the voters decide first.

Its ok the Senate can't vote to confirm a Supreme Court justice in an election year. There is precedent.

We are so fucked. But we were already so fucked. What's more fucked than fucked?

Call your senators. Tell them that if Trump is allowed to fill this seat, they have to pack the court. I just left a message for Schumer, now calling Gillibrand.

Do you remember when Scalia died, and we thought Obama would be able to turn the Court liberalish.

is there precedent that mitch mcconnell might choke on his own testicles and die?

6: Couple questions.

(1.j Is calling better than writing?

(2.) Do you have sample language I can mimic. When you say pack, what exactly do you have in mind?

Create at least two new seats on the Court, for a total of eleven, and fill them.

I don't know about calling versus writing. I've been told that email gets ignored, but I don't know if that's true.

is there precedent that mitch mcconnell might choke on his own testicles and die?

That's what happened to Scalia, no?

Spike, you seem to misunderstand the precedent, even thought Senator McConnell has been very clear. It is that when one party controls the Senate and the other the presidency, vacancies should not be filled in a presidential election year. When the same party controls both the Senate and presidency, confirmations may proceed.

Can we not push for things that assume that the Democrats win both the White House and the Senate. It's making me have anxiety attacks.

My mother thinks he was murdered. Of course, she also thinks Osama bin Laden is still alive.

10: yes, ok. I wasn't sure if you had a larger sized body. Is that what you said: "I'm L Breath and a constituent. I'm calling to say you must not let Trump fill this vacant seat or if you do, we need to expand the court by 2 seats and fill them.". Or did you just say "pack the court"?

he -> she? Or is the conspiracy deeper yet?

I said "pack the court" -- I think it's conventionally understood shorthand.

15: Scalia?

15 was to 12. Mom thinks Scalia was murdered.

I have only one senator who can be called under this scenario, but I'm assuming that pressure on Feinstein is as needed as it usually is.

Mom's beliefs are idiosyncratic.

Where's the reset button? I think I'd like to do 2020 all over again, or maybe just skip it entirely ...

RIP, notorious RBG.

this fucking week could not get much worse.

My stress level was already through the roof. Now I very much fear there will be blood running in the streets before Thanksgiving.

24: Oh good God now you've done it.

Think he's going to nominate Ted Cruz like he said he would?

I called Warner and Kaine. Let a message for the former. The latter doesn't have voice mail turned on. I'll call them again Monday. (I do feel some sympathy for the person who will be tallying the messages from over the weekend.)

Shanah tovah, heebie!!!!! [emoji]

27: No, Neomi Rao is too perfect to pass up.

5 gets it exactly right.

2: Yes possibly to both, but the Republicans have three votes to spare.

Susan Collins is a lost cause. We can all be disappointed in her just like she's always disappointed by the President. I called Markey and Warren.

Left my message on Feinstein's voicemail.

I won't be surprised if Ernst, Murkowski, Daines, Tillis, Perdue, Gardner, and/or McSally flinch.

Politically, it's probably better for Trump to have a nominee teed up but not confirmed, rather than already confirmed. That way the pro-lifers have to turn out for him not matter what else they think of Trump. If McConnell pushed Judge Barrett through, they'll have gotten everything they need from Trump, and can just chill.

Obviously, not confirming her before the election risks every getting her on the court to overturn Roe, but Trump doesn't care about that. And he doesn't have to care about having her vote if election issues come up: it's already 5-3, and Roberts isn't going to buck Trump on anything where the law is even a little bit murky.

Or Sasse.

She fucked up. She shouldn't have let herself die.

37: I'm really angry with her for not retiring sometime between 2011-2013.

38 Same. Furious.
Awful news to wake up to.

38 Same. Furious.
Awful news to wake up to.

35 is astute

If Trump tees up a replacement but loses the election (or outcome in doubt), is there any mechanism that would prevent confirmation during the lame duck period?

I'm still in shock. Not only is it tragic but it feels like this will re-shape American politics at a moment when things already felt very unstable. I already had enough to worry about, now this is too much.

42 There are, afaik, no mechanisms anywhere to prevent McConnell from getting it done. Can he get 50 votes in the lame duck? Failure to deliver could cost Republicans pro-life votes for a long time. McConnell will be focused on getting the Senate back in 2022 -- if he loses it in 2020, I don't see how he doesn't confirm the Trump nominee in the lame duck. If Trump wins and the Republicans hold the Senate, McConnell can as well wait for January, to preserve his bullshit precedent for the next time he needs it.

I am assuming there will need to be demonstrations. Calling and voting is necessary, but more things will be as well. People should probably, if possible, drive in to D.C. for demonstrations there.

I'm am very sad and very angry.

I speculate (without any basis) that John Roberts, in his heart of hearts, would prefer that the next president fill the seat.

Thanks, Charley, 44 is about what I'd assumed. Lord, Lord, Lord.

If Trump tries to rush though a nominee that's basically him admitting that he doesn't think he's going to win the election.

There is, as before, nothing at all anyone can do outside from working to win the election. Thinks are just worse now.

I was hoping this wouldn't be one of the thinks I could think.

46: There's little question in my mind that Roberts would prefer a reliable 5-4 majority, overseeing largely Republican appeals courts, preserving the illusion of non-partisanship.

CCArp - what was the name of the organization you said you'd heard good things about? Sister something?

Now that I'm breathing a bit slower, I suppose that after the unthinkable outcome of this unthinkable election is when a pressure campaign toward court-packing really becomes necessary.

10: Adding two seats would be pretty pointless, leaving the right with a 6-5 majority. Adding four is the bare minimum that would be worth doing, and yet seems unimaginably radical in terms of what Dems could possibly be expected to do. This is the darkest timeline.

Why focus on a court packing campaign that you can't even hope to do if you don't win the election when the odds are, with more optimism that I like to allow myself, still less 50/50 that you'll win the election soundly enough that the people are pressuring can do anything at all? There's the election and there's shouting into the void.

Right, yes, I wasn't counting straight. Four seats it is.

Sigh, yes, targeted assassinations/induced ball-choking it will have to be.

I didn't mean to kill the thread with flippancy. I do think Moby is right.

6 seats. There should be 15 Justices on the Court. 15 is a lucky number because it is the product of two prime numbers, which is very rare.

Seven plus eight.

I think, though, that it's not correct to say that Gorsuch is going to rule for Trump in an election dispute, unless the grounds for the dispute are really there. Not Roberts either. We have to win the election, presidential and Senate -- but I think people should avoid defeatism in the fight against fascism.

I'll be pretty surprised if Roe survives. I'm not mad that Ginsburg didn't resign 7 years ago. But we, as a people, have no good excuses for not electing Hillary Clinton.

Wait. Five and three.

[It's not as if we have a coherent editorial policy or anything, this just gave me the creeps when I woke up and saw it, so I've deleted it. LizardBreath.]

Let's not do this please.

61: I think our best excuse is that the majority of us did vote for her.

63: I know exactly which five men I'd like you to get in a room with, and when. I need to stop writing about this lest I be taken too seriously.

63: Whilst such thoughts are tempting to kick around, I don't think this is the forum even for idle speculation. I say this not to chastise, just to say such talk is best reserved for shooting the shit with one's buddies when drunk and there are no recording devices.

21 is not as lucky a number because it is the product of 3 and 7 and everybody thinks 7 is lucky but really its overrated. So is 3, for that matter.

Someone should consider deleting 63. Its existence isn't likely at all to matter. But if it does happen to matter, it's going to matter in ways that are absolutely nothing but terrible.

Spike, I was just reading a Globe story about a sheriff race in SW NH. What on earth?

If they do get up the nerve to pack the courts, I wish they'd go the rest of the way and do other necessary work. Increase the number of circuits, add more judges everywhere, twenty year terms for judges. That kind of thing.

If Trump tries to rush though a nominee that's basically him admitting that he doesn't think he's going to win the election.

If Trump rushes through a nominee, that's him ensuring a sympathetic vote when he contests the election. I wouldn't be surprised if it was Bill Barr.

If they hear the ACA case when it is 8-person court and split 4-4 the lower court opinion holds, correct? Sheesh. Of course with a 9-person Trump-filled court it is worsr.

For everything...

Market's twitter says that if McConnell abandons his precedent, we need to abolish the filibuster and expand the Supreme Court.

73 should say "Markey's".

I think 61 is maybe the most wrong thing I've ever seen on the internets.

Because the most important thing right now is minutiae of Unfogged etiquette: if you're a regular considering using a presidential pseudonym to contemplate political violence, don't. The same impulse that makes you not want to have it associated with a stable identity of yours should tip you off that none of the other regulars or front page posters want it associated with a stable identity of theirs.

76: maybe take out the 2nd to last 2 words in the 2nd clause of your 76 and then delete this comment.

20-year terms is not actually possible (short of a constitutional amendment), so it causes me pain when people casually list it as a goal. I am optimistic there is some bullshit work-around with do-nothing senior status positions, but it requires real work.

I was on the ice coaching little kids and my wife texted me "RBJ died" and I was running through my head who the fuck that could be.

24: Oh good God now you've done it.

In the mere half-day since I taunted fate, one of the cats peed in one of the kid's bed, we woke up to the low battery chirp of the smoke alarm at 5 am, and Rascal kicked Jammies in the nuts for the next hour until we were all out of bed. I'm starting to think this 2020 thing can go fuck itself.

29: l'shana tovah to you and yours as well! <3

Fight for fifteen! Five distinguished women and finally a hearing for Merrick Garland.

Relatedly, study up on Belarus and Ukraine. We may need to follow their example soon.

Of course Trump will nominate someone, of course McConnell will try to get her confirmed, of course Trump supporters will say "the Democrats said it was horrible and evil to not take nominations in the final year of a Presidency, and we agree, so FU, Democrats."

I personally think packing the court is a really bad idea. It opens the door to tit-for-tat the next time the Republicans are in power. When FDR tried it and failed, the failure led to the existing court being somewhat intimidated and kinda-sorta-halfway-or-more letting him do the things they had previously struck down. What's the equivalent today? Abortion? Immigration?

All that being said, there's a good chance the moderate Republican Senators (Collins, Murkowski, Romney, etc.; the ones the Trumpists call RINOs) will not go along with a nomination. A nomination that fails will stir up Trump's base while not stirring up the Democrat's base, which is already stirred up. I can see McConnell thinking that trying to get a nomination through in October is a win-win even if it fails.

I personally think packing the court is a really bad idea. It opens the door to tit-for-tat the next time the Republicans are in power.

That's a misunderstanding of Republicans. The door is already open for Republicans to pack the court, and they will avail themselves of that opportunity if it presents itself and seems advantageous, regardless of what the Democrats do.

Here's the New York Times today:

Senator Mitch McConnell vowed late Friday that he would move to put President Trump's nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court, breaking with his 2016 stance ...

Anybody who was paying attention understood that McConnell's "2016 stance" was to grab everything he could for the Republicans. Did anyone paying attention in 2016 think that things would play out any differently if RBG died?

Apparently if it goes to November, and the Democrat wins in Arizona, he could be seated by November 30, because technically, it's a special election.

83: In the past I might have agreed with you, but unilateral disarmament in the face of a constitutional crisis is no good. Marbury v Madison established the Supreme Court as the final arbiter of what is constitutional. But I think there is an important role for the other branches of the public to play a role in figuring out how our government is constituted. If the Supreme Court turns into an institution that violates all legal norms and undermines our government, are we still obligated to respect it as the ultimate authority on what constitutes the boundaries of what is constitutional?

I personally think packing the court is a really bad idea. It opens the door to tit-for-tat the next time the Republicans are in power.

And why doesn't the Republican theft of a Supreme Court seat open the door for tit-for-tat by Democrats?

Tim Kaine gets it:

"If they show that they're unwilling to respect precedent, rules and history, then they can't feign surprise when others talk about using a statutory option that we have that's fully constitutional in our availability," he said. "I don't want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that."

Out of curiosity, did McConnell ever float packing the court in 2017-18?

Opens the door to tit-for-tat by Republicans? It'd make a cat laugh.

Come back when you've caught up on the last thirty years of political news. It's been a wild ride.

LB is right - the mere fact that anyone is mentioning the phrase "packing the court" guarantees 100% that McConnell will pack the court the very first chance he ever gets, and will cite the vague chance of tit-for-tat by Democrats just from the mere mention of it in September 2020.

I'm not at all confident that Democrats have the spine to do it, though. After all, we wouldn't want to spook voters who can't decide if it's better to vote for the stock market or against children in cages in two months.

87: He just went ahead and packed the lower courts in 2017-2018. He didn't need a new law because by refusing to fill the bench in the years before, just getting back up to normal was packing.

Spike, I was just reading a Globe story about a sheriff race in SW NH. What on earth?

Oh, god. I believe I mentioned here recently that our local trans anarchists were on the right? This is who I had in mind.

Anyway, we have a really good Democratic sheriff here, going into his fifth term, so the GOP didn't bother putting up a candidate to run against him. So the local band of publicity-seeking libertarian assholes put up one of their candidates, as they always do.

In fact, this particular candidate had previous run in the primary for a certain city council seat against someone you know, and came in fourth with less than 30 votes. Even when people from this group run in the bigger races they usually don't don't get more than a few dozen votes. This time, however because she was running unopposed, she actually won the GOP nomination.

At first I though it was kind of a nice because its great when the GOP looks stupid. However, since winning, she has joined the lawsuit in my city against our recently passed (and highly successful!) mask ordinance, and so my bemusement has fully run its course. And I'm pretty annoyed that every time my community gets national attention, its not for all the great stuff we have going on here, its always for stupid stuff like this.

So the medicaid expansion is basically going to be revoked next year, right? That's going to make things really, really rough on my family, since my brother is basically unemployable but does not qualify for disability and has diabetes and a couple of other expensive conditions. As a family we don't have enough money to pay for the kind of care he needs out of pocket.

Why cast doubts on the spine of the elected Democrats when it is still very much in doubt that they win the election? There's promising signs, but things are still very much up in the air and I don't think anybody knows if Ginburg's death makes a win more or less likely.

Wrong that Gorsuch and Roberts may not set themselves and the Republic on fire for transparent bullshit?

Wrong that despair helps fascism?

Wrong that Roe isn't going to be overturned?

Wrong that November 2016 wasn't a fucking game, and that there was no place, in a serious Republic, for stupid fantasies about how change happens?

92: If Biden wins and the Democrats get the Senate, even if it fails in the Supreme Court, something similar will be created to replace it.

But the insulin situation is a scandal that didn't become a scandal because faster-acting horrors have been coming one after another too quickly for many huge problems to come to light.

Moby Hick gets it exactly correct. I feel angry* and grieving the death of RBG and, in the short term, the only constructive thing to do is try to win as many elections as possible in November.

More broadly, I think packing the court is a terrible idea, but may be the best available option. That Trump might fill two seats on the Supreme Court under dubious circumstances feels like too much. One of the people I used to play bridge with used to quote a line (from an old movie or TV show) of somebody saying at a poker game, "I'm a reasonable man, I don't mind one or two extra aces in a deck, but [this is absurd]." I feel like McConnell's treatment of Merrick Garland was like somebody getting caught with a 5th ace in the deck, and that it still made some sense to just sigh and let it go because there was no good alternative at the time. But this does feel like too much.

But heck if I know what response would actually improve things and make American political institutions more functional, and I don't think there's any reason to spend much time imagining exactly what a court-packing plan would look like between now and the election. Between the election and January 20th might be a great time to think about it, but for me, right now, feeling angry and sad, that doesn't make me feel any better.

* I am mostly angry, again, about 2016 and the fact that having a Supreme Court seat open mattered so little to people (other than anti-abortion voters). But I'm also angry, again, at Kennedy choosing to resign when he did and approving of Kavanaugh as a replacement, also helps poison the well for whatever happens next to fill RBG's seat.

2016 was an unmitigated disaster. 2020 could be worse.

LOL at people still being mad about 2016. I wish the Dems had taken it seriously enough to not run the most unpopular politician in the country.

I'm worried because I want Pennsylvania religious conservatives to be thinking about almost anything but abortion next month and now, regardless of what happens, they will be thinking about abortion next month.

Not that it seems worth quibbling over details, but Trump will only have filled one seat under dubious circumstances. The theft of the Garland seat is and will forever be an absolute disgrace, procedurally speaking. Filling RBG's seat would just be rank hypocrisy, and I think voters should take to the streets and elected Democrats should wring their hands, issue threats about court-packing and other forms of retribution, and generally make a fuss, but I don't think the circumstances are any more dubious than usual: a Supreme Court justice died, a seat is empty, the president has a Constitutional right to fill it.

I'm happy to have different arguments about whether this particular president should be allowed to do govern at all. There's an in-my-opinion reasonable case to be made that his presidency is entirely illegitimate. But Congress tried to make a version of that case and failed, so here we are.

101 was to 97. I'm very slow.

opens the door to tit-for-tat the next time the Republicans are in power

Hey, remember Harry Reid making this argument about the filibuster?

RBG's death is a disaster on top of all the other disasters. I think it puts the election in doubt. If Trump loses he will do what he always does. He will sue and keep suing until it goes to the supreme court.

101 There aren't enough cases to define a pattern, but one could look at the history and say that vacancies within 100 days of the election have typically been held open until after the election: https://fivethirtyeight.com/features/what-ruth-bader-ginsburgs-death-could-mean-for-2020-and-the-supreme-court/

I figured the response to my 83 would "OMG, we have to counter everything the Republicans do with something even more outlandish." Sigh. Welcome to the demise of the republic, brought to you by both gangs of idiots.

That's a nonsense argument. Once your start creating extra-Constitutional criteria--100 days! no, 113 days! no, 1000 days!--what even is the point? This is why LB's original post is correct: the right response to this bit of bad luck, heaped as it is atop the theft of the Garland seat and the general fuckery that has characterized the Republicans' approach to the federal judiciary (and, well, everything) is to pack the Court.

106: you are both far-seeing and wise. Thank you for deigning to walk amongst us occasionally. May I touch the hem of your garment?

Worrying about packing the court because the Republicans will do so in return if/when they return to power is ridiculous because the alternative is already a Republican dominated court.

107: As you say, it isn't worth quibbling over details but, given that there are more examples of presidents waiting until after an election to fill a seat than examples of successful court packing, why is the former a nonsense argument and the latter obviously correct?

109: Also, it is not even close to certain they will be out of power.

110: I didn't say it was "obviously" anything. What I said is that it's nonsensical to point to a tiny number of data points, untethered from the text of the Constitution or judicial precedent, and suggest that they're an argument for anything other than...I'm not even sure what. Those data points are, at best, a thought experiment or, more realistically, clickbait.

I'd just add that they're also a loser of an argument. The defenders and beneficiaries of minority rule are not going to be persuaded by appeals to made-up history (what I mean here is that arranging a few isolated cases into a narrative that doesn't reflect important realities about the past isn't actually history). Heck, they're not going to be persuaded by anything other than raw power. I think that's probably the nature of defenders of minority rule--and very much something that's hardwired into our political structures, apparently, which is a real problem, perhaps THE real problem that we need to consider.

106: you sound like all of my colleagues who think that actually making a substantial effort to solve problems like the climate crisis or the healthcare crisis is "outlandish." Yes, the important thing is that we elect people who always sound very calm and talk about being bipartisan while they get steamrolled on any issue that actually matters, because politics is some kind of abstract gentleman's game instead of a literal matter of life and death. For a state full of Democrats, MA sure does have a lot of idiots--and I don't mean the same people you do.

112/3. I considered whether to use the word, "obviously" since you hadn't, but on the other hand you hadn't given any reason for arguing that court-packing was correct beyond, "your argument is nonsense . . . This is why [court-packing]" which I thought implied that you thought the arguments in favor were obvious.

Look, I don't think we're very far apart. I think, despite McConnell's, statements that it's worth making the argument for not holding a confirmation hearing until the next congress. I don't expect that argument to carry the day, but I'm glad for anybody -- from Joe Biden, to Obama, to Lisa Murkowski who is making that argument right now.

I also agree that there's no clear rule which would prohibit Trump from nominating somebody and McConnell from holding a confirmation hearing. I do think there are norms, and some sense of what is reasonable, and my observation about 100 days before an election isn't an attempt to make a rule it's an attempt to appeal to some shared understanding of convention -- the same sort of shared understanding which would prompt Lindsey Graham's comment, "I'll tell you this - this may make you feel better, but I really don't care - if an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait until the next election."

As LB says, the last 20 years have demonstrated that norms and shared conventions have only limited power (and were never perfectly consistent to begin with), but I don't think that means that appeals to convention are pointless or that we should fully embrace the idea that formal rules are the only things that matter.

I feel comfortable calling it "dubious" if the Senate confirms a justice this year.

I also agree, that court-packing may, ultimately, be the next step. I'd rather not -- I'd much prefer that the Senate not confirm a Justice this year, but that's not my decisions -- and it may be worth it, but it wouldn't be without cost.

Congressional Democrats seem to have a hard time with the concept that limited retaliation in kind is a standard tool for norm enforcement (as in WTO rules), not "the low road".

I'm on a similar page as Kevin Drum.

(As an aside, liberals can complain all they want that Mitch McConnell would be a hypocrite for blocking a Supreme Court nomination during Barack Obama's final year while allowing one during Donald Trump's final year, but Mitch McConnell doesn't care. He's going to do it and that's that. Still, liberals should complain anyway. Not only is it worthwhile to make McConnell look bad, but if it's done right it's even possible--barely--that it could persuade four Republican senators to block a nomination. The odds are long, but it's worth a try.)

...

For liberals, then, the best strategy is likely the following:

• Behind the scenes, Democratic senators should quietly make it clear that confirmation of a Republican nominee does indeed mean war. But they should do it in a way that keeps it out of the public eye.
• Publicly, Democrats should hold their noses and appeal to voters in the middle by talking about how abortion is a heart-rending decision, but one that should be left up to a woman and her doctor.
• At the same time, Democrats should try to figure out a way to bait conservatives into going full lunatic over abortion. This would go a long way toward turning off a lot of people.

Per of course: https://crookedtimber.org/2020/09/19/the-supreme-court-and-normcore/

Congressional Democrats seem to have a hard time with the concept that limited retaliation in kind is a standard tool for norm enforcement (as in WTO rules), not "the low road".

Can you give examples of when that has worked in Congress, and what you would identify as a successful, "limited retaliation in kind"? I feel like the problem is doing something which is recognizably, "limited retaliation in kind" as distinguishable from further escalation. I'm not trying to be sarcastic, I recognize that what you're talking about works in Baseball (for example), but I'm less sure what it would look like on Congress.

Per of course: https://crookedtimber.org/2020/09/19/the-supreme-court-and-normcore/

Henry concludes

If (1) you take Levitsky and Ziblatt's account of the benefits of norms in avoiding chaos and political breakdown seriously, and (a different question) (2) you also believe that the tradeoffs are acceptable, then (3) you still need to think about how norms actually work. If norms rest - as surely they must - in part on implied threats of what will happen if the other side stops adhering to them, then the best strategy for preserving norms will often not be to commit to adhere to them unconditionally. Instead, the best strategy to preserve norms may be to make it clear that your adherence to the norms are conditional, that you will retaliate if the other side deviates from the norms, and to actively and vigorously retaliate against the other side if they do deviate, delivering on your threats. That's the lesson that I think FDR has for normcore, even if it isn't the lesson that Levitsky and Ziblatt emphasize in their book (which in all fairness is a general book for a popular audience; I'd be surprised if Levitsky and Ziblatt don't have some idea of this critique, and they may have a counterargument to it).

That seems correct to me. At the risk of violating the analogy ban It also strongly reminds me of much of the recent arguments about "cancel culture" -- which was also about the questions of, "what counts as a violation of norms, and what are acceptable ways to punish those violations." I'm not sure what to make of that analogy except that the questions are both important and difficult.

At the SC now. Wish I had something more substantive to say than that it's crowded. Lots of flowers, but maybe fewer signs than I would have expected. The street is open, which is inconvenient for the crowds.

I gave some money to Sara Gideon, the Democratic challenger to Collins? Is it worth giving money to Jaime Harrison?

Laurence Tribe linked to a Flip the Senate Blue donation page.

Sara Gideon
Theresa Greenfield
Steve Bullock
Jon Ossoff
MJ Hegar
Dr. Alan Gross
Barbara Bollier

Is there anyone on that list I should consider giving to?

It doesn't matter whether McConnell cares! Jesus!

What matters is whether some portion of people (not single issue pro-life people) decide that Steve Daines' insistence on waiting until the people had been heard in 2016 cannot be reconciled with his haste now, and draws enough of an inference about his character to support Bullock. Are there vanishingly few such people? There are, but in a close election, margin plays make the difference.

Also, obviously, it's important to store up credibility/capital for when changes to the Court get proposed in 2021. Not with Republicans, but with the folks who aren't partisans but whose support will be necessary for it to work.

There is no way, no way on earth, that McConnell is going to pass up the chance to confirm a pro-life justice in 2020. He's been rewarded for failure up to to now, to be sure, but this is within his reach, and if he doesn't do it, then Republicans lose a lot of single-issue pro life voters, maybe for more than just a cycle.

I think we should start saying "Expand the Court" instead of "Pack the Court". I don't think the plan is to make the Justices share seats and offices, is it?

The slogan can be "More Justices -- for More Justice!"

And people that are worried about the Republicans responding by adding even more Supreme Court Justices -- well, the logical end to this will be that everyone will be a Supreme Court Justice. It's a roundabout way to Universal Basic Income, and Universal Health Insurance, but I'll take it.

We're in a constitutionally formative moment here, with an empowered minority finding it ever more difficult to maintain its power against demographic and cultural change and willing to choose power over democracy. Protecting democracy means breaking that minority power and forcing Republicans (or their successors) to figure out what they stand for once white supremacy is off the table.

How about making sure white supremacy is actually going to be off the table?

99 is coming from someone who is still mad about 2003.

LOL, as you say.

126: That's the first step. This Republican Party has to be destroyed so that something less twisted can emerge. There are some echoes of the pre-Civil War period here, although I think this is unlikely to end nearly that badly.

Moby is the sanest voice in this thread, which is always eerie.

I'm worried things will go back to pre-New Deal.

130: Me too.

I also wonder whether the fight might move us forward. Like we get Medicare for all, cause straight taxation is constitutionally permissible - unless, they manage to find Social Security unconstitutional.

CharlieCarp- Point one and two in your 94 look like denial to me. In 3 what you call despair, others may call acceptance. 4 Since the upper level Republicans seem to believe in nothing except the exercise of power I expect them to find some fig leaf to keep Roe v Wade, likely in name only.

5. I object to you recasting " I'm not mad that Ginsburg didn't resign 7 years ago. But we, as a people, have no good excuses for not electing Hillary Clinton." from 61 as "Wrong that November 2016 wasn't a fucking game, and that there was no place, in a serious Republic, for stupid fantasies about how change happens?"

I understand the urge to absolve those one identifies with and blame those who differ but I think this kicks it up too many notches. Besides when blame is diffuse it doesn't really mean anything.

Has anyone gamed out physically occupying the Senate? I don't know if that would do anything procedurally, though, or if McConnell would just convene elsewhere.

I think that would guarantee Trump wins the election.

Roberts and Gorsuch have each ruled in ways that Trump and his ilk don't like. They expect to be there long after he's gone, and that their legacies will live on. I'm not saying they won't be looking for ways to rule for Trump, but he's going to have to show some actual evidence of fraud. He's suing our governor right now to get an order precluding counties from sending ballots to everyone, but instead only send ballots to people who ask for them. I don't expect our federal judge to rule for Trump, or the Ninth Circuit. And I don't see Gorsuch and Roberts going with Trump on stuff like that, at least not quickly enough to matter. (Ballots get mailed on Oct 9.)

The US Supreme Court has already twice declined to stay our state courts' decision to strike the Greens from the ballot. (The Greens got qualified for the ballot as part of a Republican funded, led, and executed petition drive -- with no actual involvement from the local Green party. The guy running as a Green for my state senate district is the foremost gun rights lobbyist in the state -- the party of armed socialist revolution? State Dems got enough people to withdraw their signatures to disqualify the party, but the Republican secretary of state said it was too late and the withdrawals weren't done properly. Court ruled for the Dems, ordered Greens stricken. Federal court refused to intervene. State Supreme court affirmed, but still hasn't issued an opinion. First US Sup Ct denial was a request of the SecState for a stay. Second was from Green candidates. In the meantime, ballots have been approved and printed, without Greens.)

A huge part of the Republican coalition -- enough to control it, as much as anyone can -- wants Roe overturned, and isn't going to settle for it being left on the books, even if its a dead letter in a number of states. Then they're going to want a nationwide ban. No Republican will be able to buck them, and, in the future they imagine, rich Republicans will go to Canada to terminate unwanted pregnancies. It's the cost of keeping power, and they'll gladly pay it.

I don't think that in September 2020 we are at a point where we have to accept Trump's reelection and McConnell continuation in 2021 as majority leader. Obviously, 2 months from now, we could be in a very different fix, for for now, I think we have the chance to avert both, but only if we take it. I have a bunch of things I'll be doing, and I hope you do as well.

We're never going to agree on 2000 or 2016.

I'm not sure what our disagreement was about 2000. On 2016 I don't know if I can forgive Republicans or not, I'm only trying for Allah's sake, but in 2009 RBG was diagnosed with cancer or am I wrong?

I don't think we have to abandon hope that Trump will lose just yet, but fascism is another matter.

I'm not sure what two dominant parties cooperating to block a third party from viability proves, maybe you could clarify?

I guess we will see what the supremes do if it comes up, I think it may depend on the magnitude of the bribe Trump is willing to offer.

Maybe I'm too cynical now, there is a first time for everything.

Per Minivet in 118, Henry over at CT is very good on the subject of tit-for-tat:

Without a willingness to punish, we end up in the McConnell equilibrium, where one side concocts ever more extravagantly contrived normative justifications for doing what it wants to do, while the other issues grave statements deploring the breakdown of civilty. That is not precisely a recipe for norm maintenance either, unless by "norm maintenance" you mean a mere preservation of outward forms and decorum.

"Outward forms and decorum" is what essear in 114 was talking about:

politics is some kind of abstract gentleman's game instead of a literal matter of life and death.

The Green party wasn't trying to get on the ballot. The Republicans were trying to get the Green party on the ballot because they think that will hurt Democrats. At least here, the candidate who tossed his hat in the ring as the Green candidate had no prior affiliation or involvement with the Green party. (He wasn't trying to prevent the Dem from winning the seat, I don't think, but maybe messing with the Republican incumbent, who had sided with our Democratic governor on Medicaid, and on tribal water rights. White supremacists

The US Supreme Court has twice been asked -- the first time by a Republican office holder -- to intervene and put the Green party back on the ballot. If they were simple handmaidens of the right, they would have done so.

This is a big deal. Control of the US Senate may come down to the Montana Senate race, and if the Democratic candidate wins, it will probably be because the Greens were stricken from the ballot.

+hate that stuff

I'm not sure what two dominant parties cooperating to block a third party from viability proves, maybe you could clarify?

In fact, no such collaboration exists. Republicans are very hopeful that the Greens will rise up and have promoted Greens in Wisconsin and elsewhere.

Contempt for voters is the sine qua non of the Lefty Third Party Nuts, and that contempt is returned at the ballot box.The people who have cooperated to keep down third parties are the voters.

Asteele in 99 tells us voters are not even qualified to tell us who they like. Actual voters preferred Hillary to everybody who ran against her, but those people are irrelevant to the question of Hillary's popularity.

85: are we still obligated to respect it as the ultimate authority on what constitutes the boundaries of what is constitutional?

I'm sure we've probably talked this to death in the distant past, but I was thinking again the other day about USians relation to/reverence for/misunderstanding of the constitution and how it compares to the same motif in German civil life. A mpls artist had a little profile in an English-language arts/news website run by a German journalist in Berlin. In his mission statement, he feels it meaningful to mention that the policy of the site is to support the Liberal Democratic Basic Order (his capitalization). Here in the US, I don't think you can really discuss anything similar without grounding it in an analysis of race & white supremacy in the founding of the country. I don't know enough about how race works on either a societal or interpersonal level in Germany nowadays to know how that plays into German feelings on the Basic Law (obvs. more with relation to Jews, Roma and Middle-Eastern Germans and Others than descendants of African chattel slaves in the Western Hemisphere.) And of course the two countries' differing approaches to religion in general are meaningful as well. It's always weird to discuss this stuff with other anarchists, especially anarchist lawyers, given that aestheticizing the politics of the US Constitution's aura is exactly the sort of thing that virtually every sort of anarchist should militate against. And yet, it's often too far outside the discourse to apply that very normal anarchist critique to discussions of law and politics that focus on the Consitution. Same kinda dissonance I get from reading Emma Goldman when she quotes Freud or the New Testament. But then, while there are now an even more formidable array of women and trans anarchists active in various parts of society, anarchism as a body is still indefinitely mired in patriarchy & with it, hierarchy and domination. When Adam delve and Eve span...

And this little Piketty cried "oui! oui! oui!" all the way home

LOL at people still being mad about 2016.

So this is basically a game for you? A light-hearted jeu d'esprit, or what have you?

Are you angry and upset over the Trump admin's woefully inadequate, shockingly immoral, and probably criminally dishonest, response to the crisis of COVID-19? LOL! It's so cute, and so amusing, how you can't get over 2016.

(And yes, I am still angry about 2016. I'd have to be brain-dead, or else a Trump supporter [if those two are not one and the same thing...] not to be.)

I occasionally teach very (very, very) basic introductory game theory. When I teach the Prisoners' Dilemma, one of the lessons is that the best strategy for a repeated PD game is to cooperate on the first move, and then use tit-for-tat on subsequent moves. When it comes to respecting Senate norms, it's pretty clear that the Dems already need to be in tit-for-tat mode (thus, they need to defect from observing norms such as the filibuster and not court-packing), and that cooperation cannot and should not happen until Republicans in the Senate decide to rebuild trust through repeat cooperation (which is not going to happen anytime soon, if ever).

I learned that strategy from a Piers Anthony book.

144: But what if you are in a one-move game, where history and consequences aren't relevant? If you can ignore the past and the future, it's possible to arrive where DaveLMA is.

146: The lesson of the single PD is that the most likely result (mutual defection) is also suboptimal. The Senate, however, is not in a single PD. As long as it continues to exist as a body, members are subject to "the shadow of the future," which reminds them that how they behave in this instance has consequences for what happens in the next instance.

(This is all according to neoliberal institutionalism, which doesn't particularly appeal to me as a way to explain politics, but might have some utility in plotting our strategy.)

So I'm thinking there needs to be an articulated exit strategy for the tit-for-tat. Something like, "Every time you ram through a partisan justice in defiance of previous protocol [this would need to be better defined, but including Gorsuch via blocking Garland, Kavanaugh via stifling investigations, etc.], we will expand the court by two seats, but if you stop next time you have a turn, so will we." Or maybe the exit strategy is 20-year terms, I don't know.

The exit strategy is presumably some kind of "grand bargain" that results in term limits and a set court size or something.

When I'm teaching PD, I have students play multiple rounds with partners, and award Smarties to the winners. Maybe the Senate just needs more sugar.

Right, and the articulation part is essential. Currently Dem leadership tuts and refuses to entertain hypotheticals.

"The whole point of the exit strategy is lost if you keep it a secret!"

It's also kind of hilarious that I teach this, as most of what I know about game theory comes from a single (very well written) article:

Jervis, Robert. "Cooperation Under the Security Dilemma." World Politics, vol. 30, no. 2, 1978, pp. 167-214. JSTOR, www.jstor.org/stable/2009958.

Jervis once reviewed an article I do-wrote, and was very kind.

s/b "co-wrote"

De-escalation is an option on some things. Redistricting is one area where it's worked.

The Supreme Court is way tougher, because no matter how many justices there are, you're still going to have high stakes nominations, and closely divided courts on some issues. The thing about an expended court is that you're likely to end up with panels -- like we do in the circuits -- which adds an element of randomness that's going to be all the worse.

Megan mentioned more circuits in 70 -- that's been on the Republican wish in the West for many years. Getting a PNW circuit so we're not subject to California judges. I'm sure we can learn to grouse as annoyingly convincingly about Portland and Seattle if given the chance.

I think I met him once. Guest lecture. I know I took detailed notes on at least two of his books.

148: The exit strategy of tit-for-tat is built into the game itself. Republicans can stop being assholes at any time they choose. If they don't nominate a justice pre-election, the Dems don't retaliate.

If ten percent of Senate Republicans develop a conscience, the Dems don't retaliate.

Republicans have no interest in an exit strategy because nobody is actually playing tit-for-tat. Not yet.

You, me, we can talk about consequences until we are blue(r) in the face, the fact is that neither McConnell nor Daines and the rest are anywhere near as scared by what Democrats might do -- especially since we're the party of functional government -- than they are of what a plurality of their coalition *will* do. The Republicans can, I think, get away with holding the vote over until after the election. Maybe. If Biden wins, though, and they don't confirm Trump's nominee in the lame duck, there will be hell to pay. Real hell, not some stupid procedural consequence that only really matters to the insiders.

One of the narratives Trump used to take over the Republican party was that its elites were taking most of the coalition for granted. It worked because it's true. It's also still true, inasmuch as the governance Trump has provided has mostly been elite-driven. Trump is able to get away with this because of his cultural warrior stance. But here we have the goddam Super Bowl, and if the Republican team won't suit up and play to the full extent of its abilities, no amount of whinging about the Deep State or Nancy Pelosi or whatever is going to save them.

If both players play tit-for-tat, doesn't it lead to permanently not cooperating once one player doesn't cooperate?

Yes. They are going to suck until they fuck things up badly enough that Republican primary voters feel pain, which will come well after decent people are smashed.

I too got my introduction to Game Theory from the Piers Anthony novel.

I don't know how informative Game Theory is in the current situation. There are clearly more than 2 actors, for example, and various unequal power dynamics which are not captured by the standard prisoners' dilemma*.

I've also been thinking about the idea of norm breaking as targeted punishment, and I would add that it is much more likely that one's actions will be understood as punishment if they aren't something which benefits the person doing them. If you say, "because you did something bad I'm going to do [something I already wanted to do" an observer is likely to be suspicious that the idea of punishment is just a pretext. "Because you did something bad I'm going to do something which doesn't benefit me but sends a clear signal that I find your behavior objectionable" is a much stronger message, but I'm not sure how to pull that off in the current situation.

* searching for information on asymmetric prisoners dilemma I find this

The research reported in this paper focuses on whether or not payoff asymmetry affects individual choices in the prisoner's dilemma game, and how choices are related to whether the decision maker is payoff advantaged or disadvantaged. The research is motivated by the fact that, in the naturally occurring world of social dilemma situations, the gains from mutual cooperation are often times not equally distributed. That is, even when both individuals gain by cooperating with each other compared to the case in which both defect, one might gain more than the other. Field researchers have often concluded that heterogeneity is a cause of management failure, or alternatively, ignore within community asymmetries when there are successes (Agrawal and Gibson, 1999). More recently, some have cautioned against making broad claims about the putative negative role of heterogeneity (Baland and Platteau, 1996; Lam, 1998; Ruttan and Borgerhoff Mulder, 1999; Bardhan and Dayton-Johnson, 2001, 2002; Ostrom, 1990, 2001; Ahn, Lee, Ruttan, and Walker 4Varughese and Ostrom, 2001). For that matter, researchers within the international relations tradition have typically emphasized the beneficial effects of heterogeneity among states (Snidel, 1995), and those studying adaptive resource management institutions stress the positive role of actors with heterogeneous motives. Thus, the field research provides mixed views on the role of payoff asymmetry and at least one of the reasons for this inconclusiveness seems to be the difficulties involved in identifying the payoff structures precisely, even when it is rather clear that the situation under investigation constitute a social dilemma

The thing about 155 and 157 is that when you're talking about the Senate, there are not two players. Senators are much more responsible to their voters than they are to their leadership. When it comes to protecting choice, every Democratic senator has the same interest, because none of them can win without the votes and energy of committed pro-choice voters. When it comes to whatever the 'consequences' are going to be, though, there isn't going to be the same unity. (Our congressional candidate is very explicitly saying that she's *not* going to just do whatever the Speaker wants.) If we have a 52 Democrat Senate in 2021, one of those is going to be Manchin. I don't know who the next two most rightward are, but they exist, and if your model doesn't account for them, you're going to end up using terms like 'feckless' which are useless and despair-inducing.

This is (slightly) encouraging.

NEW YORK (Reuters) - A majority of Americans, including many Republicans, want the winner of the November presidential election to name a successor to Ruth Bader Ginsburg on the U.S. Supreme Court, according to a Reuters/Ipsos poll released on Sunday.

The national opinion poll, conducted Sept. 19-20 after Ginsburg's death was announced, suggests that many Americans object to President Donald Trump's plan, backed by many Senate Republicans, to push through another lifetime appointee and cement a 6-3 conservative majority on the court.

The poll found that 62% of American adults agreed the vacancy should be filled by the winner of the Nov. 3 matchup between Trump and Democratic former Vice President Joe Biden, while 23% disagreed and the rest said they were not sure.

Eight out of 10 Democrats - and five in 10 Republicans - agreed that the appointment should wait until after the election.

That's impressive, that it cracked through the 45% crazification factor.

It's only one poll, others have been more like 52/42 (with a majority opposing an appointment).

I certainly think McConnell is capable of ignoring the polls but my feeling is that if an appointment comes up for a vote Republicans will confirm, so the goal, for the moment, has to be putting pressure on McConnell/Lindsey Graham to not bring a nominee up for a vote. It's unlikely to succeed, but polls like that help.

I'm just amazed that that high a percent seems to remember the events surrounding Merrick Garland.

Who?

Jammies' cousin named their baby Merrick in the past few years and I've never once commented on the name around anyone beside Jammies.

(Also, a different cousin of his who is very Christian named their baby Cohen and was not aware that it had a non-Christian significance. This cousin once scoffed rudely when my kids once were caught off-guard by praying before Thanksgiving dinner and were clearly like, "wait, what are we supposed to do in this situation?" and the cousin was very "omg these idiots" so it brings me some pleasure to scoff back.)

Apparently this is a thing other people have noted too.

AIHMHBALO, when I was an undergraduate, I went to the library knowing I needed a book by a guy named "Cohen". I remembered his first initial and the general topic, but not the title. I was completely flummoxed that I did not have enough information to limit the number of titles down to where I could find the book. I had to go home and get a full citation and then go back to the library.

Anyway, to the best of my knowledge, the word "Cohen" does not appear in English translations of the Bible. However, sometimes people learn that "Maccabee" could mean "hammer" and that the Hanukkah would have more of a noir feel if it was about "Judah Hammer."

Judah "the Hammer" -- https://comicvine.gamespot.com/judah-maccabee/4005-29750/

I don't read comics much. I also knew an old friend of mine was in the naming business, but I didn't know she wrote-up "Cohen" until I looked just now. (She also had a different hat when I knew her.)

We ran across a baby Cohen recently in the extended-extended family too, and I was puzzled. I think it's the rhyming-names thing a la Jayden, Brayden, etc.: in a cluster with Owen, Rowan, and Bowen (?). The only one you could really add beyond those is... oh, it would totally be "Johan" pronounced like Cohen, right? Lovely.

While I'm bitching about nothing on the edge of disaster, I had to click on this to see if there was anybody I know. Apparently I suck at noticing the beauty of my surroundings because I lived 18 years in the town mention in the first picture and never once saw an old windmill that looked so nicely framed by the grass and sky.

Also, I spent a whole couple of hours in Pioneers Park and never noticed any pillars.

Interesting procedural point just made on Twitter: While 50 votes plus Pence can confirm a justice, you need 51 senators to establish a quorum, so only 3 defctions could theoretically block action.

They can block an action until after the election and use the selection of a Supreme Court justice to try to win re-election by rallying anti-abortion voters who otherwise hate them. Then, if they win, they go ahead and put in whoever they want. If the lose, the go ahead and put in whoever they want during the lame duck session.

They are dragging this shit out because it might benefit them and costs them nothing. There's no way to stop them, but to take it seriously as anything but an attempt to have their cake and eat it too is just going to lead to frustration.

172: what about Flowin, Goin, and maybe even little Moanin? I really feel there is a larger gerund pool to tap.

I named my faucet "Moen".

I wonder what percentage of people who name their children Cohen have never got beyond Terry Pratchett.

179: Now you're being pfunny again.

OT but the House 737 Max report is out, and extremely damning of both Boeing and the FAA. https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf

We discussed it here, almost exactly a year ago:
http://www.unfogged.com/archives/week_2019_09_22.html#017012

169: Yes, "Cohen" or "Kohen" is translated into English as "Priest" in the Bible.

As for "Judah Hammer" -- Maccabee is not the common word for hammer in Hebrew. When you hear Maccabee in Hebrew the odds are that it's in reference to a sports team.

If my last name were "Cohen", I would be very tempted to name my first-born "Genghis", as in the Pynchon character.

Googling, I find that Pynchon was accused by Romain Gary of stealing the name from a novel of his, which Pynchon denied, declaring that he took the name from Genghis Khan, the "well-known Mongol warrior and statesman".

Apparently, there's also a real life person of that name, owner of the well-known indoor shooting range Machine Guns Vegas.

Also a throwaway joke in a Terry Pratchett novel, and (I have just learned) a BBC comedy about an SS officer being haunted by a Jew he murdered.
https://www.memorabletv.com/tv/genghis-cohn-bbc-drama-robert-lindsay-antony-sher/

Also this Kliban cartoon (sort of).

https://i.pinimg.com/originals/67/4d/f3/674df3c0cd9254b736d0aa826f321a33.jpg

What do y'all court-packers think of this.

189: I'm puzzled by that one. I don't understand what he's saying about the relationship between the courts and the other branches of government. If you can ignore an edict from the Supreme Court, can you ignore other courts?

He brings this up to rebut it, but I don't think he succeeds:

Indeed, most Americans are taught from a young age that the Supreme Court being able to strike down laws is what it means to have the rule of law.

Not just "strike down," but interpret and enforce. And not just the Supreme Court, but other courts. The sole example he provides of ignoring the court is Lincoln and habeas corpus and, uh, that was a lawless move.

188: Ignoring the Supreme Court is possible in a limited category of cases, and not the ones everyone cares about. E.g. the Supreme Court reverses Roe v. Wade. The President says he will ignore the ruling. But 20 or so states start imprisoning doctors who perform abortions, and a few random women of color who obtained abortions. Ignoring the ruling doesn't help those in jail, and also doesn't make abortions available after doctors decide they don't want to risk it.

Or the Affordable Care Act is declared unconstitutional in its entirety. An insurance company stops covering people with pre-existing conditions. The President says he is ignoring the law, and pre-existing conditions must be covered. The insurance company refuses to pay a claim, the claimant sues for reimbursement, and the Supreme Court rules for the insurer. The claim will go unpaid.

And when the President can overrule the Supreme Court, we probably don't want her to. E.g. the President could try to force coverage of preexisting conditions by imprisoning the insurance company executives, and then ignoring the court rulings granting them habeas corpus.

I'm down to overturn Marbury vs. Madison. Seems like judicial review mostly stops things from happening, and it stops good things from happening more than it stops bad things from happening.