Patterico's Pontifications

10/26/2020

Justice Amy Coney Barrett

Filed under: General — JVW @ 5:05 pm



[guest post by JVW]

I’m watching live on CSPAN-2. Judge (now Justice) Barrett has 52 yes votes versus 43 no votes. Instead of voting audibly when called upon, Democrat Senators appear to be making a show of walking down to the Senate well in order to literally cast a thumbs-down vote. But she has passed the 51 vote threshold and the confirmation is now done.

Congratulations to President Trump for nominating a fine jurist and impressive woman. Congratulations to his team and to the folks at the Federalist Society for bringing her to his fleeting attention. Congratulations to Cocaine Mitch McConnell and Senator Lindsey Graham for their resolve in seeing her through, and for uniting Republicans with the exception of Susan Collins in support of her.

– JVW

104 Responses to “Justice Amy Coney Barrett”

  1. It’s now 52 to 46. I’m not sure who hasn’t yet voted. Perhaps Senator Collins will chose not to vote instead of casting a “no” vote. I’m sure we’ll hear more about it.

    JVW (ee64e4)

  2. The final tally is 52 to 47.

    JVW (ee64e4)

  3. This is a good thing. Meanwhile, I see a member of the Senate posting that Originalism is “racism,” “white supremacy,” and “fascist.”

    Simon Jester (545ea7)

  4. Now CSPAN-2 is saying that it was 52-48, so I guess one last “no” vote was recorded before Sen. Grassley announced the approval of the nomination.

    JVW (ee64e4)

  5. I saw one imbecile give a double thumbs down, he probably will be credited for 2 votes.

    mg (8cbc69)

  6. Meanwhile, I see a member of the Senate posting that Originalism is “racism,” “white supremacy,” and “fascist.”

    He’s truly an idiot. I’m wondering if in retrospect I didn’t wish the obnoxious Kennedy kid had beaten him in the primary.

    JVW (ee64e4)

  7. I hear that the swearing in will be by Joe Biden’s favorite member of the Supreme Court.

    If Biden remembers who that is, I mean.

    Simon Jester (545ea7)

  8. Thank you, JVW. I’m pretty sure we would get along just fine IRL. Appreciate your posts.

    Simon Jester (545ea7)

  9. When the history of the United States Senate is written, doesn’t Mitch McConnell have to be considered one of the chamber’s absolute masterminds? I sure hope he wins reelection, but by the same token I hope he also retires gracefully once that term is completed.

    JVW (ee64e4)

  10. Back at’cha, Simon Jester. Always a pleasure to have you comment on a post of mine.

    JVW (ee64e4)

  11. I truly believe that Cocaine Mitch has internalized this scene, JVW.

    https://youtu.be/6PQ6335puOc

    Simon Jester (545ea7)

  12. Collins voted no; said it was a vote against rushing the confirmation during an election, a reflection of the nominee’s qualifications.

    Barrett is the first justice since 1869 to be confirmed without bipartisan support.

    Dave (1bb933)

  13. *not a reflection

    Dave (1bb933)

  14. Perhaps “Mr. Frosty” aka Markey is trying to gin up votes in his bid for reelection.

    mg (8cbc69)

  15. Stephen L. Miller
    @redsteeze

    Harry Reid is an American Hero and he deserves at statue.
    __ _

    Hopefully this new justice will support and defend the Constitution of the United States.
    __ _

    harkin (7fb4c9)

  16. JVW (ee64e4) — 10/26/2020 @ 5:06 pm

    The final tally is 52 to 47

    The missing Senator is Kamala Harris, out campaigning.

    Sammy Finkelman (a69e24)

  17. Disagree w/originalists/originalism; but she’s quite qualified and will likely be Chief Justice some day. But first, food and beverage duty.

    Will be amusing to watch this government bureaucrat– now secure w/a lifetime gig and a sweet bennie-package [w/all those kids, she needs it]– mellow over time like a wine– or a cheese… and inevitably disappoint the very ideologues who championed her.

    DCSCA (797bc0)

  18. Trump will be holding another super-spreader event at the WH tonight for her swearing in.

    200 guests are expected.

    Dave (1bb933)

  19. Well, she was missing yesterday.

    But today:

    https://lmtribune.com/barrett-confirmed-by-senate-for-spot-on-supreme-court/article_c8faa3ec-17e8-11eb-84be-4ff8fee5b968.html

    In a display of party priorities, California Sen. Kamala Harris, the vice presidential nominee, returned to Washington from the campaign trail to join colleagues with a no vote.

    Sammy Finkelman (a69e24)

  20. Yeah, it ended up with all 100 Senators voting, so clearly Collins and Harris both were able to cast their “no” votes.

    JVW (ee64e4)

  21. Dave (1bb933) — 10/26/2020 @ 5:28 pm

    Trump will be holding another super-spreader event at the WH tonight for her swearing in.

    The seats will be somewhat further apart.

    (and maybe it will be all outdoors.)

    It’s the vice president’s staff who have positive cases.

    Sammy Finkelman (a69e24)

  22. Spoiler alert:

    Justices Roberts, Thomas, Alito, Gorsuch and Kavanaugh all contract the virus at the second super-spreader event, allowing President Biden to cement an 8-1 liberal majority in the first weeks of his term…

    Dave (1bb933)

  23. For Gorsuch it will be like a mild flu; is Roberts even invited, northern catholic hoosier solidarity be damned?

    urbanleftbehind (1c6d77)

  24. (Obviously I wish no harm on any of our black-robed masters, but it would be the ultimate own-goal for a president who specializes in scoring for the opposing team…)

    Dave (1bb933)

  25. Most potential superspreader events don’t actually result n the spread of the virus; most people who get it survive, and Trump has access to the cure (Democrats are in denial about that)

    Sammy Finkelman (a69e24)

  26. The Hill
    @thehill

    Harris blasts GOP for confirming Amy Coney Barrett: “We won’t forget this” http://hill.cm/L8TAZ4N
    __ _

    Prospective VP does not understand Constitution but is more than happy to bail out rioters.

    What could go wrong?
    __ _

    harkin (7fb4c9)

  27. Prospective VP does not understand Constitution but is more than happy to bail out rioters.

    What could go wrong?
    __ _
    harkin (7fb4c9) — 10/26/2020 @ 5:58 pm

    Biden could keel over and we are stuck with POTUS Harris…

    Hoi Polloi (92d467)

  28. Harris called the Barrett confirmation process “illegitimate” not unconstitutional.

    Harkin, would packing the court be illegitimate in your view?

    If so, does that indicate that you don’t understand the constitution?

    Dave (1bb933)

  29. Oath being administered.

    Sammy Finkelman (a69e24)

  30. My favorite American swearing in one heckuva Lady.
    What a country.

    mg (8cbc69)

  31. The new justice gave an excellent speech. I’m sure the Dems are clutching their pearls and calling for smelling salts overcome with “the vapors.”

    Marci (405d43)

  32. @28 There’s nothing illegitimate about it either. I don’t think that word means what Harris seems to think it means.

    frosty (f27e97)

  33. @30. He’s looking a bit Uncle Tomish… outta hit the salad bar.

    DCSCA (797bc0)

  34. 31. Yes, young people have sharper minds.

    Four more years of George.. errr… George-a… 😉

    DCSCA (797bc0)

  35. The guests appear to be social distancing, so that is good.

    DRJ (aede82)

  36. Congrats to Ms. Barrett.

    Paul Montagu (77c694)

  37. Congrats to everyone who voted for Trump.

    beer ‘n pretzels (042d67)

  38. Most guests are also wearing masks:

    Most guests on the South Lawn were wearing masks, but not the First Lady or Jesse Barrett, husband of the new Associate Justice. Guest seating was spaced apart, but less than 6-feet social distancing.

    Dana (6995e0)

  39. @37. You mean George.

    DCSCA (797bc0)

  40. “There’s nothing illegitimate about it either. I don’t think that word means what Harris seems to think it means.
    _

    Oh what fun we’re gonna have!
    _

    harkin (7fb4c9)

  41. So which month do the Handmaids camps start?
    _

    harkin (7fb4c9)

  42. I can’t see this helping Collins. She will piss off some people who were going to vote for her and nobody who wasn’t now will.

    Kevin M (ab1c11)

  43. Congrats to everyone who voted for Trump.

    Because President Cruz might never have thought of it. Luckily, we have Trump’s 90-dimensional mind to thank.

    Kevin M (ab1c11)

  44. Harkin, would packing the court be illegitimate in your view?

    It would be as illegitimate as overturning Brown vs Board of Education.

    Kevin M (ab1c11)

  45. @42 My assumption is that they’ve given up on her winning. There is no way they should’ve taken this vote before the election otherwise.

    Nic (896fdf)

  46. My assumption is that they’ve given up on her winning. There is no way they should’ve taken this vote before the election otherwise.

    My guess is they don’t give a crap.

    Kevin M (ab1c11)

  47. @46 Maybe not, but if the Rs keep the Senate it seems likely to be by a Very slim margin. You’d think they’d give a crap about every single vote, unless they don’t care if they keep the Senate or not, or if their internals are really definitive in one direction or the other.

    Nic (896fdf)

  48. I think not voting before the election could have lost a half dozen Senate seats, so losing only a few (that were already questionable, e.g., Collins, Gardner, McSally) because of this vote was preferable.

    DRJ (aede82)

  49. Seen on Facebook:

    “Black man swears in woman appointed by racist misogynist.”
    _

    heh
    _

    harkin (7fb4c9)

  50. Congratulations to Justice Barrett, who seems to be a wonderful person and a very smart lady.

    Dave (1bb933)

  51. Congrats to everyone who voted for Trump.

    beer ‘n pretzels (042d67) — 10/26/2020 @ 6:44 pm

    hahahahaha

    Oh man you guys are great

    Gonna be a wild week with you

    Dustin (4237e0)

  52. Congratulations Justice Barrett.

    Back to my hiatus.

    NJRob (eb56c3)

  53. I was just thinking about you today, NJRob. I haven’t seen you or kishnevi or Colonel Haiku in ages.

    norcal (a5428a)

  54. Good morning everyone!

    I’ve been reading this blog from far away since a number of years, maybe I can ask a question:

    Why do people see the appointment of conservative justice(s) to the Supreme Court as an achievement for Trump? Wouldn’t have any other Republican president have easily done the same? Isn’t the only “achievement” picking a name from a list, while neither the list has been compiled by him, perhaps not even the distilled shortlist? I assume that any name on the list presented to Trump would have been considered an achievement after confirmation… So what is it that Trump accomplished?

    The situation would be different if he had to do something to unite and get the votes. Did he?

    Acoustics-Mike (254e70)

  55. They also serve who get out of the way of people who know what they are doing.

    I don’t think we’ll really appreciate Justice Amy Barrett until she strikes down President Kamala Harris’s universal ban on the consumption of beef, limiting the ban to only on Fridays.

    nk (1d9030)

  56. It’s not the oilmen that need to worry about a Biden-Harris Presidency — like I pointed out on the other thread, crude oil is now indispensable for a thousand other uses besides fuel, from nylon stockings to spacecraft and more. It’s the cowboys.

    nk (1d9030)

  57. not looking good for the fifth avenue nancy boys either mr nk

    not looking good at all

    Dave (1bb933)

  58. …limiting the ban to only on Fridays.
    nk (1d9030) — 10/27/2020 @ 1:17 am

    HA! Good one.

    felipe (023cc9)

  59. 1/3 of the court are Trump appointed after 4 more years it may be 2/3.
    Winning

    mg (8cbc69)

  60. JVW, this made me think of you.

    https://www.powerlineblog.com/archives/2020/10/justice-barrett.php

    I cannot ever get people to consider how a rule change can be used by opponents.

    Simon Jester (545ea7)

  61. Taft, in one term, appointed a majority of the Supreme Court.

    Harding, in less than a term, appointed 4 out of 9.

    Franklin Delano Roosevelt, from 1937 through 1943, appointed 9 – one was a replacement for one justice he appointed who resigned, so that in 1945, there was one left of those who were on the court when he became president, by 1945, Owen J. Roberts. He resigned, and Truman appointed his successor.

    Nixon appointed 4 in his first term, but two of them were because of trouble confirming justices in 1968 (one and then later Fortas resigned)

    On the other hand, some Presidents have appointed none (Carter) or almost none (Coolidge, Ford)

    Sammy Finkelman (a69e24)

  62. Acoustics-Mike (254e70) — 10/27/2020 @ 12:28 am

    Why do people see the appointment of conservative justice(s) to the Supreme Court as an achievement for Trump?

    I give him credit for two things. First, he announced a list while campaigning. Second, he stuck to the list.

    Wouldn’t have any other Republican president have easily done the same?

    Any other R could. The actual history on that hasn’t been as good. Reagan gave us O’Connor and Bush II passed up a number of conservative choices to go with Miers as her replacement because everyone wanted a woman. Miers was not qualified. We ended up getting Alito but that’s not a good example of any other R easily putting up a conservative judge. Roberts hasn’t exactly been a reliable conservative. Bush I passed on Thomas for his first pick and we got Souter. That would also be a bad example of any other R easily putting up a conservative judge. Thomas might have been a bit of luck. He was picked in part because he was black and was replacing Marshall.

    frosty (f27e97)

  63. She seems really good. I know at some point she will make a decision I don’t agree with, and I know a lot of Republicans freak out when that happens (Roberts isn’t even the best example).

    But when all is said and done, the GOP played hardball with Garland and Coney. They didn’t break the rules. They simply found the limit to what they could do, they explained their reasoning dishonestly (the real reason was ‘I can’). the democrats will have a hard time not answering that with some hardball of their own. Since expanding the court is a legitimate function of congress, and Trump is giving the democrats a once in a century opportunity to claim mandates they don’t really have, I expect Coney will come at a much higher price.

    And when that happens, of course the Trump fans praising him for appointing a conservative (which by all rights he did better than most republican presidents have) those fans will deny Trump is to blame. He always ducks responsibility for two moves ahead in life. The perpetual victim.

    Dustin (4237e0)

  64. Why do people see the appointment of conservative justice(s) to the Supreme Court as an achievement for Trump?

    I give him credit for two things. First, he announced a list while campaigning. Second, he stuck to the list.

    This is a legitimate thing he’s done well so far.

    Time123 (b4d075)

  65. Maine has ranked choice voting for federal offices, including electors, and also in primaries for statewide non-federal elections.

    https://www.youtube.com/watch?v=3Ez3aEUjRQo&feature=youtu.be44

    https://www.maine.gov/sos/cec/elec/upcoming/pdf/RCVMarkedBallots.Updated101420.pdf

    The two independent candidates are Lisa Savage, a “peace activist” who switched from Green Independent because the standards for running in primaries are very high, and Max Linn, who is basically a pro-Trump person.

    candidacy)[70]

    Sammy Finkelman (a69e24)

  66. 62 – any one else would have quit or been impeached on fake propaganda

    mg (8cbc69)

  67. @63, I’ve been thinking about this. Rights of the minority party or comity only matter when you’re in the minority party, and you can only show respect for them when you have the power. Both sides have defensible claims that their actions have been reasonable responses to breaches of norms by the opposition party.

    But where we’re at now a game of escalating Tit-For-Tat. It’s easy to see why the Dems feel treated unfairly at this point in time. I don’t know if the Dems were open to any sort of reasonable negotiation or if they wanted this to make their base angry and improve voter turnout. I don’t know if the GOP tried or what sort of offers they indicated they would consider. From what I’ve seen in the press the GOP has been delighted to stick it to the libs on this one and the libs clearly feel owned.

    It’s obvious that anything the Dems do unilaterally will be in their mind a fair response, and to the GOP an unreasonable escalation

    Their options IMO are:

    1. Find a credible partner on the GOP side with which to find a compromise that can be maintained going forward. I think Biden’s statements are consistent with this being his desired path.
    2. Make the SC less critical by passing a congressional law that recognizes women having a right to abortion in certain circumstances. (e.g. before the 3rd trimester or when medically necessary). I doubt they’ll do this. Their base isn’t really aligned with popular opinion so their would be too much political cost.
    3. Set up the system so the GOP doesn’t get a turn any time soon. This could be done by making DC a state (probably not a bad idea on the merits) and making PR a state (terrible idea on the merits). This would be a an extremely sharp elbowed play, but legal.
    4. Add Judges. Adding 2 judges (or 3 or 5) will be seen as outrageous and result in the GOP doing likewise when they have have the chance. Which would lead to more tit-for-tat. If the Dems are going to do this they should just add 90 and be done with it. Break this part of the system until people can come together and figure out how to make it work. I like the SC being a check on federal power (which they occasional are) so I think this would be a mistake. This would also be fully legal.

    So I’m hoping that Biden’s “commission”is able to come up with something.

    Time123 (6e0727)

  68. Paramedics for “The Big Guy” love this site.

    mg (8cbc69)

  69. The first thing our Justice Barrett did after being sworn in was to appear in an election rally for the president who indicated he really wanted her on the court now so as to vote on election related litigation.

    All hail our new Republican Justice, Amy Barrett.

    Victor (00af29)

  70. Sorry, not election rally, but campaign event.

    Victor (00af29)

  71. “I expect Coney will come at a much higher price”

    I think this is the reality that short-term reasoning misses. Continuing to make the Court more and more political will incite blowback. One can argue that Conservatives are tired of the Court legislating social issues (that it has no particular expertise or insight into)….and ramming through more conservative justices appears to be the only available remedy….if not to reverse that trend of social legislating, then at least to draw a line in the sand and defend some meager notion of federalism. But the death of comity will continue to ripple….not too long ago Justices were confirmed with strong bipartisan support….and then Roe changed the calculus. Abortion and gay marriage should have been addressed through legislation….and not by twisted Court reasoning about what is best….it’s that expansion of power that has forced us down this unseemly path….and to the next nail in bipartisanship…and democracy

    AJ_Liberty (ec7f74)

  72. “Why do people see the appointment of conservative justice(s) to the Supreme Court as an achievement for Trump? Wouldn’t have any other Republican president have easily done the same?”

    I think what you’re missing is that those hypothetical ‘any other Republican’ guys needed to find a way to motivate the base enough to get elected. That’s not a small feat.

    IOW it’s not ‘why should Trump get credit?’ but ‘how would the court look if Hillary had won?’.
    _

    harkin (7fb4c9)

  73. Good comment Time123.

    I think back to reading Wickard, or Roe, and thinking how absurd this all is, it’s just about power over others. the Constitution was so poorly written about the judiciary. And the way power is discovered instead of amended by the people has created generations of needless fighting.

    I’m sure each time a lot of people think it’s worth it. We’ve got to overhaul how real disagreements are resolved, how compromises are made, and how the kooks are handled.

    Dustin (4237e0)

  74. @62

    Acoustics-Mike (254e70) — 10/27/2020 @ 12:28 am

    Why do people see the appointment of conservative justice(s) to the Supreme Court as an achievement for Trump?

    I give him credit for two things. First, he announced a list while campaigning. Second, he stuck to the list.

    Wouldn’t have any other Republican president have easily done the same?

    Any other R could. The actual history on that hasn’t been as good. Reagan gave us O’Connor and Bush II passed up a number of conservative choices to go with Miers as her replacement because everyone wanted a woman. Miers was not qualified. We ended up getting Alito but that’s not a good example of any other R easily putting up a conservative judge. Roberts hasn’t exactly been a reliable conservative. Bush I passed on Thomas for his first pick and we got Souter. That would also be a bad example of any other R easily putting up a conservative judge. Thomas might have been a bit of luck. He was picked in part because he was black and was replacing Marshall.

    frosty (f27e97) — 10/27/2020 @ 7:53 am

    Trump should get credit for sticking with Kavanaugh as I doubt any other GOP POTUS would’ve stuck with him.

    Also, he gets credit for ACB because, w/o the Kavanaugh ordeal she wouldn’t have gained the support of the GOP Senate.

    whembly (c30c83)

  75. Yeah if Bush didn’t stand by Miers he wouldn’t have stuck with Kavanaugh.

    Honestly I can see the merits in Trump there. The charges were presented shamefully, even if they exposed Kavanaugh to be a bit of a jackass. Time will tell if Kavanaugh is a great jurist.

    I’m not seeing the benefit to me. So what if Coney was appointed them instead of now? I see the benefit to Kavanaugh, who is out there protecting Trump’s election hopes.

    Dustin (4237e0)

  76. @75 Or, you know, we now have a pretty good idea that the more conservative Justice won’t let states unilaterally change elections laws to benefit Democrats in the middle of the elections.

    whembly (c30c83)

  77. @74, Supporting people accused of horrible sex crimes is really on Brand for Trump. It’s kind of like throwing peter rabbit into the briar patch.

    /snark.

    Time123 (6e0727)

  78. “Time will tell if Kavanaugh is a great jurist.”

    His recent concurrence in the Wisconsin case is indefensible.

    Davethulhu (05199d)

  79. @78 care to elaborate?

    whembly (c30c83)

  80. Time123 (6e0727) — 10/27/2020 @ 8:33 am

    1. Find a credible partner on the GOP side with which to find a compromise that can be maintained going forward. I think Biden’s statements are consistent with this being his desired path.

    Biden seems to be for setting up a “bipartisan” commmission, with orders to recommend something within 180 days (the filibuster in the Senate may be gotten rid of but not over this issue)

    So I’m hoping that Biden’s “commission”is able to come up with something.

    something for which the Republicans later won;t retaliate.

    Biden mentioned favorably the idea of creating a Supreme Court with rotating membership. He says some constitutional scholars have said that is constitutional. Or would that be an expanded court with be rotating panels of 9 to hear each case?

    The panel will throw in other changes to make this look like it isn;t simply adjusting the court composition to get specific results.

    Then:

    Lawyers could pick their justices by timing their appeals, and stare decisis would maintain any decisions reached by activist judges

    3. Set up the system so the GOP doesn’t get a turn any time soon. This could be done by making DC a state (probably not a bad idea on the merits) and making PR a state (terrible idea on the merits).

    DC would actually raise the number of Senators needed for a majority by only one. Puerto Rico doesn’t have a majority for statehood, ad statehood has been traditionally linked to the Republican Party.

    Sammy Finkelman (a69e24)

  81. His recent concurrence in the Wisconsin case is indefensible.

    Davethulhu (05199d) — 10/27/2020 @ 10:22 am

    I agree. That’s what makes me sick about Trump. He’s loyal in the way Whembly describes, in a way I wouldn’t want to be. Trump got what he needed though.

    Dustin (4237e0)

  82. “care to elaborate?”

    The ruling itself is already bad, especially with Trump’s postmaster slowing down mail deliveries. But Kavanaugh goes off the rails.

    Those States want to avoid the chaos and suspicions of impropriety that can ensue if thou-sands of absentee ballots flow in after election day and potentially flip the results of an election.

    This is nonsense. The results are what you get after you count the votes. It’s just repetition of a baseless conspiracy theory.

    He also quotes this:

    “[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.”

    Also nonsense. Close votes aren’t decided “the morning after the election.”

    Davethulhu (05199d)

  83. we now have a pretty good idea that the more conservative Justice won’t let states unilaterally change elections laws

    It wasn’t a partisan decision. I know twitter tells us to see it that way, but it wasn’t. Except to Trump and his fans, who needed an outcome.

    Dustin (4237e0)

  84. Here’s a twitter thread that breaks it down better than I can:

    https://twitter.com/Tierney_Megan/status/1321120019040866304

    Davethulhu (05199d)

  85. “Franklin Delano Roosevelt, from 1937 through 1943, appointed 9 – one was a replacement for one justice he appointed who resigned, so that in 1945, there was one left of those who were on the court when he became president”
    __

    And yet he still tried to pack the court:

    “ The Judicial Procedures Reform Bill of 1937, frequently called the “court-packing plan”,was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.”

    https://en.m.wikipedia.org/wiki/Judicial_Procedures_Reform_Bill_of_1937
    _

    harkin (7fb4c9)

  86. Amy Barrett is a good choice but all too often modern Presidents nominate judges because they will be easier to confirm, not because they are the best choices. For example: Bush 41 (Souter instead of Edith Jones), Bush 43 (Roberts instead of Michael Luttig). Gorsuch and Kavanaugh are GOP establishment choices, not brilliant jurists or reliable conservatives.

    DRJ (aede82)

  87. Yes, the Wisconsin concurrence, of both Gorsuch and Kavanaugh, a Republican party hack , are pretty bad.

    Here’s an analysis of the concurrences:

    https://nymag.com/intelligencer/2020/10/trump-justices-show-how-theyd-aid-him-in-contested-election.html

    The bottom line is that Kavanaugh is explicitly setting up the argument that changes in vote tallies after election night are inherently suspect, and a sign of somebody “changing” or “flipping” the “real” result of Election Night. In other words setting us up for chaos.

    And there’s absolutely nothing in Barrett’s career, or nomination and confirmation to indicate she won’t be there right alongside Kavanaugh.

    Victor (00af29)

  88. So had Kavanaugh gotten kid glove treatment instead of the attack of the harridans, he might be drifting left by now.

    urbanleftbehind (e480e2)

  89. Even if you agree with Kavanaugh, that is a sloppy lazy piece of legal writing. It would not get an A, maybe not a B, and Joe Biden would probably not plagiarize it.

    Dustin (4237e0)

  90. harken @85:

    And yet he still tried to pack the court:

    FDR tried to pack the court before the first Justice had retired.

    https://en.wikipedia.org/wiki/Willis_Van_Devanter

    Van Devanter retired as a Supreme Court Justice on May 18, 1937,[6] after Congress voted full pay for justices over seventy who retired.[12] He acknowledged that he might have retired five years earlier due to illness, if not for his concern about New Deal legislation, and that he depended upon his salary.[2] In 1932, five years prior to Van Devanter’s retirement, Congress had halved Supreme Court pensions.[13] Congress had temporarily restored them to full pay in February 1933,[13] only to halve them again next month by the Economy Act.[14] He was the last serving Supreme Court Justice appointed by President Taft. Van Devanter was replaced by Justice Hugo Black, appointed by Franklin Delano Roosevelt.[15]

    Sammy Finkelman (a69e24)

  91. >those fans will deny Trump is to blame

    In this case, I don’t think Trump *was* to blame.

    Absent the refusal to hold a hearing on or confirm Garland, and absent the *obvious lie* used to justify it (and then abandoned four years later), I don’t think the Democrats would play hardball back.

    But the combined refusal to consider a nomination in March on the grounds that the voters should decide in an intervening Presidential election, on the one hand, and the insistence on considering a nomination in October despite the fact that people were already voting in a Presidential election … the combination has stoked fury and bitterness that i’m certain will be repaid.

    This isn’t *Trump’s* fault, although a better politician might have navigated the situation better. It’s entirely and exclusively *McConnell’s* fault.

    aphrael (4c4719)

  92. >The bottom line is that Kavanaugh is explicitly setting up the argument that changes in vote tallies after election night are inherently suspect, and a sign of somebody “changing” or “flipping” the “real” result of Election Night.

    This is an infuriating argument given that many states have been accepting absentees after election day for years, and that most states don’t even begin counting absentees until the polls are closed.

    It reads like a pre-emptive attempt to deligitimize the election results.

    I would support impeaching Kavanaugh on the strength of this concurrence alone.

    [The Trump years have radicalized me dramatically.]

    aphrael (4c4719)

  93. > making PR a state (terrible idea on the merits)

    why is this a terrible idea on the merits?

    as a basic matter of public policy, we should not have millions of citizens who are not represented in Congress. we should not have territories with large populations which are unable to participate in representative government and whose local government powers are subject to modification by the whims of a congress that does not represent the local citizens *in any way*.

    i don’t care who they would vote for. they should either be made a state or granted complete independence. the halfway house they’re in now is inconsistent with our fundamental principles.

    aphrael (4c4719)

  94. > draw a line in the sand and defend some meager notion of federalism.

    a number of members of the conservative majority are openly arguing that the federal courts should re-evaluate whether state court interpretation of state law is correct.

    how does this defend federalism?

    aphrael (4c4719)

  95. Absent the refusal to hold a hearing on or confirm Garland, and absent the *obvious lie* used to justify it (and then abandoned four years later), I don’t think the Democrats would play hardball back.

    Good point, Aphrael. I just want to note that Trump was a leader on this issue, and in some ways was becoming the leader of the party: https://www.nytimes.com/live/obama-supreme-court-nomination/donald-trump-rejects-garland-nomination/

    a better politician might have navigated the situation better.

    As bad as it sounds (and unsatisfying to you), I think had the GOP’s statement about Garland been directly “We have the power to stop this nomination, and that’s what we believe we were elected to do.” It would have been so much better. This was a foreseeable situation, with Lindsey Graham and a few others discussing a rule they promised they would follow in the future.

    The idea that the GOP would just not appoint a justice when they could seems preposterous. But that they keep taking the weak and easy way out makes things a lot uglier.

    Also, I disagree McConnell is alone accountable. The whole party pretty much supported this flip flop.

    Dustin (4237e0)

  96. I’m lowkey hoping Graham pays a price for this by losing re-election.

    aphrael (4c4719)

  97. People who like even chocolate sugar-coated (M&Ms) would be a people who would also like to mail their ballot whenever they feel like mailing it and have it count whenever it gets there. They can stuff it, as far as I’m concerned.

    If they themselves don’t care enough to vote early enough so their ballot is sure to arrive by election day, we should not care less if they are *disenfranchised*. I tend to think it might be a good thing if they are *disenfranchised*.

    I dropped my ballot in the corner mailbox in the morning of October 21. I got an email from the Board of Elections in the evening of October 23 that they had received it and it would be counted. That’s how it’s done, comrades!

    nk (1d9030)

  98. My ballot was returned and accepted more than a week ago.

    But i’m generally in favor of it being as easy as possible for people to vote because *morally* we’re all in this together and morally everyone should get an equal say in what we do and what we don’t do.

    Waiting until the last minute is unwise but shouldn’t result in your vote not counting.

    As a policy matter, I think the right policy is for ballots to be accepted if postmarked by election day and received within 7-10 days, and I think the post office should be required to postmark absentee ballots (right now they don’t guarantee to postmark anything).

    I do not think the constitution compels that outcome, or that any state constitution necessarily does (although I don’t know all of the state constitutions so i’m not really able to have an informed opinion).

    Legally, the problem I have with the Pennsylvania case is that it involves asking the feds to override a state court’s interpretation of the state constitution and of state law. *Doing that* is the end of federalism, and it’s completely unjustified in the history of American jurisprudence.

    aphrael (4c4719)

  99. There is already that window and it’s longer than 7-10 days. In Illinois, it’s no more than 45 days and no less than 30 days before Election Day. Election Day should be more than a two-minute warning. It should be game over.

    nk (1d9030)

  100. “Election Day should be more than a two-minute warning. It should be game over.”

    We have a day for that already. It’s called “The Day After Election Day”.

    Davethulhu (05199d)

  101. i don’t care who they would vote for. they should either be made a state or granted complete independence. the halfway house they’re in now is inconsistent with our fundamental principles.

    While I agree that it’s not ideal, it is the voters of PR who have been unable to reach consensus on what they want. Until Trump, there was bipartisan support for statehood if the Puerto Ricans wanted it, including Presidents Ford, Reagan and Bush 41.

    There is another statehood referendum in PR on November 3, by the way. Unlike the last several, which had multiple options, this one is worded identically to the yes/no statehood referenda held by Alaska and Hawaii.

    Dave (1bb933)

  102. I suppose that granting Puerto Rico statehood will finally bring peace between us and Spain, and peace is a good thing.

    From the Secret History of the United States:
    Since 1898, The United States and Spain have fought five wars for possession of the island of Puerto Rico. To date, Spain has won all of them.

    nk (1d9030)

  103. Heh.

    DRJ (aede82)


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