Amy Coney Barrett

[Kevin]

Originally Posted by bevinpiphi

Well. This election cycle is certainly reminding me that bad faith arguments aren't worth my time.

This.

This is really about the GOP wanting a 6-3 majority and that they are going to do their damnedest to achieve it. Right and wrong do not matter in politics. Winning is what matters. All of this silly bullshit moralizing about "How Lincoln didn't appoint a justice in an election year" and about Merrick Garland's failed nomination is nonsense. The GOP has the means an opportunity for a huge win. I don't like it. I don't think a supermajority on the Court is going to be a good thing for either side in the long run. If PP v Casey was really overturned, and reality sets in for a lot of women, I think the backlash will be massive for the GOP. Similarly, if you take away expanded Medicare for millions of people, there's going to be a massive political price for that. I am not sure why the GOP wants to achieve either of those results because either result for the GOP is simply an exercise in self-immolation.

I would similarly have no problem if the Court was to be expanded if the Dems win the Presidency and both houses. One raw exercise of power invites the next one and that'll continue until we have a 3rd party or until we have a failed Republic.

[Benzgirl]

Originally Posted by Kevin

This.

This is really about the GOP wanting a 6-3 majority and that they are going to do their damnedest to achieve it. Right and wrong do not matter in politics. Winning is what matters. All of this silly bullshit moralizing about "How Lincoln didn't appoint a justice in an election year" and about Merrick Garland's failed nomination is nonsense. The GOP has the means an opportunity for a huge win. I don't like it. I don't think a supermajority on the Court is going to be a good thing for either side in the long run. If PP v Casey was really overturned, and reality sets in for a lot of women, I think the backlash will be massive for the GOP. Similarly, if you take away expanded Medicare for millions of people, there's going to be a massive political price for that. I am not sure why the GOP wants to achieve either of those results because either result for the GOP is simply an exercise in self-immolation.

I would similarly have no problem if the Court was to be expanded if the Dems win the Presidency and both houses. One raw exercise of power invites the next one and that'll continue until we have a 3rd party or until we have a failed Republic.

I just fell virtually in love with you!

[Kevin]

Originally Posted by Ronaldo9

As an originalist I, of course, disagree slightly with this. I would like a 9-0 originalist court, frankly.

That said, I do agree with your position that one raw exercise of power invites the next. I would just note, however, that the Democratic Party would have the power to block and filibuster the ACB nomination right now except McConnell removed the filibuster on SCOTUS judges. He did that to make good on a promise he made to the Democrats that he would take that course of action if they used their 2011 Senate majority to remove the filibuster on Circuit and District court judges, which - despite the warning this would be the response - they did.

So, yes, we are seeing the raw exercise of power inviting the next, however, this process was set in motion - not this year - but in 2011 and by Harry Reid. In other words, were it not for an action taken by Harry Reid nine years ago, there would be no chance ACB will be confirmed the week after next as will happen.

So your response is that the Dems did it first and that justifies equal retribution. Okay. I guess that's fair. It's a bit juvenile--and "He hit me first" in the schoolyard nowadays still results in both students going home. It's regrettable that option is not really available.

And if that continues, absent intervention, that'll spell the end of the significance of being a Senator rather than a Representative and we'll have a "judicial" body consisting of 30 some-odd justices acting as essentially a super-legislature. I don't want that. I would hope no one wants that. I would hope one side would pump the brakes, but everyone is so cynical, that they rightly or wrongly believe that one side pumping the breaks would simply invite the other side taking full advantage of that situation.

I'm not sure there are really any true originalists on the Court or whether there ever have been. Off of the top of my head, Scalia had a rather expansive interpretation of the interstate commerce clause when it came to finding federal jurisdiction under the interstate commerce clause exists to regulate marijuana grown entirely within a State using only implements from within the State. I've found "originalist" judges are often using originalist arguments to complete the mental gymnastics necessary to obtain a certain result, e.g., reading the Second Amendment's clause regarding "a well-regulated militia" to essentially be without meaning or importance in interpreting the right to bear arms.

I used to think I was an originalist. Then I went to law school and saw how inconsistently the philosophy was applied. And now I'm a lawyer who uses whatever argument to advance my cause which I think has a chance at working. Was I to serve on the bench, I would aspire to originalism, but recognize it's a much more squishy proposition than anyone wants to admit considering the Bill of Rights contains that whole 9th Amendment thing.

[Sister Havana]

Originally Posted by Ronaldo9

I would just note, however, that the Democratic Party would have the power to block and filibuster the ACB nomination right now except McConnell removed the filibuster on SCOTUS judges. He did that to make good on a promise he made to the Democrats that he would take that course of action if they used their 2011 Senate majority to remove the filibuster on Circuit and District court judges, which - despite the warning this would be the response - they did.

So, yes, we are seeing the raw exercise of power inviting the next, however, this process was set in motion - not this year - but in 2011 and by Harry Reid. In other words, were it not for an action taken by Harry Reid nine years ago, there would be no chance ACB will be confirmed the week after next as will happen.

Let’s remember why Reid and the Democrats changed the rules to remove the filibuster for all but Supreme Court nominations. It’s important to understand it in context. McConnell and the Republicans used the filibuster a then-unprecedented amount of times to block or stall pretty much all of Obama’s appointees. They filibustered appointees they all agreed were qualified, for no other reason than Obama was doing the appointing. They even filibustered Chuck Hagel’s nomination for Secretary of Defense - yes, that would be former Republican Senator Chuck Hagel.

The event that was really the tipping point for the rule change was when Obama nominated three judges to fill three vacant seats on the DC Circuit Court. Not only did Senate Republicans scream and yell about how Obama was court-packing (by filling existing vacancies!), but they even introduced legislation to remove those three seats from the DC Circuit so Obama could not appoint people to fill them. (It didn’t pass, obviously.) This was the climate in which the rule was changed. Harry Reid didn’t do it just for fun.

And if the filibuster hadn’t been removed during the Obama years, anyone who thinks Mitch McConnell wouldn’t have done it himself the first time Democrats tried to filibuster any of Trump’s nominees has not paid attention to Mitch McConnell.