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1 hour ago, TwiceHorn said:

Well, a great example would be this:  Lets say Trump runs in 2024, and due to voter suppression measures, loses the popular vote, but wins a narrow electoral victory (I'm about to puke typing this).  Should Kamala steal the election?

If she did, I would agree that the lines are obliterated and it's a free-for-all.  I'm not quite sure what happens if she didn't, but I think it would be preferable for the good guys to remain good guys.

if he wins, he wins. even if he would’ve won anyway, he’ll definitely cheat. 

it’s adorable that you think the lines will be obliterated by the left. 

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7 hours ago, henrygandorf said:

if he wins, he wins. even if he would’ve won anyway, he’ll definitely cheat. 

it’s adorable that you think the lines will be obliterated by the left. 

I don't think they'll be obliterated "by the left."  But it seems to me that either someone respects the lines or no one does.  They're not obliterated until no one does.

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12 hours ago, TwiceHorn said:

That hadn't really occurred to me as a rationale for it.

But I just kind of dislike that "this is a foreordained conclusion" aspect of it.  And the purpose of it is political.  Not so much political as to who is the nominee, but political as to the appointER.

Basically, I bemoan the political aspects of the Court and the nominations to the Court, while simultaneously acknowledging the reality of it.  I think everything about the Court is more political than it has ever been.  It won't ever be as apolitical as some people believe or would have you believe that it is or should be, but it's in extremis currently.

And, while it isn't political, per se, I have always had something of a distaste for "the woman's seat" or the "Jewish seat" on the court.  Part of that is that I don't think it is a representative body, or should be.  And I am in favor of professional and academic diversity over demographic or cultural diversity, although that surely has a role, too.  And, to some degree that plays into what you say.  Not so much that saying the nominee must be a woman, Jew, black, Catholic etc. reduces the pool of qualified applicants, but more that it focuses on what I think may be the wrong thing. 

In fact, it occurs to me that the "black woman" category of nominee is somewhat more likely to produce a nominee that has some of the "diverse" qualifications that I really do value beyond race and sex:  criminal defense or public interest work, some non-corporate and non-governmental legal work, etc. simply because black women are somewhat less likely to cycle in and out of Main Justice, judgeships, and Kirkland & Ellis or similar.

Also, the converse of a "Jewish seat" is that once you appoint one, are you done with Jews, or whatever group you're favoring or representing? Or do we have arguments about there being too many Jews on the Court, or black women, or Catholics or whatever.  And, yes, I would currently argue that there are too many Catholics of a certain persuasion on the Court right now, but that has less to do with them being Catholic than other aspects of their beliefs or politics or background.

It's a foreordained conclusion that Biden's nominee is going to be a liberal.  Why is this any different?

I agree with your observation that a Black woman is likely to have more diverse professional qualifications (i.e., something other than the standard Ivy League law school--> DOJ/Big Law--> Federal appellate court).  But I would also observe that Black women also bring a very different lived experience and weltanschauung.  I think that's important to have on the Court.

And from that perspective, I would argue that an otherwise qualified Black woman would be more qualified than any white man owing to the fact that the white man's perspective/lived experience is already well-represented on the Court.

12 hours ago, TwiceHorn said:

I'm a chill dude, generally, so my personal preference is for "normalcy" and always will be.  But, for now at least, I agree that it's fight fire with fire, but without crossing the ethical and legal lines that the opposition crosses.

No person whose personal preference is for normality would use the word "normalcy"--a made-up word originated by the barely literate Warren G. Harding because he couldn't remember the real word.

Next in your quest for normality, you'll try to start normalizing words like "strategery" and "misunderestimated."

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11 minutes ago, Ghost of LL said:

It's a foreordained conclusion that Biden's nominee is going to be a liberal.  Why is this any different?

I agree with your observation that a Black woman is likely to have more diverse professional qualifications (i.e., something other than the standard Ivy League law school--> DOJ/Big Law--> Federal appellate court).  But I would also observe that Black women also bring a very different lived experience and weltanschauung.  I think that's important to have on the Court.

And from that perspective, I would argue that an otherwise qualified Black woman would be more qualified than any white man owing to the fact that the white man's perspective/lived experience is already well-represented on the Court.

No person whose personal preference is for normality would use the word "normalcy"--a made-up word originated by the barely literate Warren G. Harding because he couldn't remember the real word.

Next in your quest for normality, you'll try to start normalizing words like "strategery" and "misunderestimated."

I use strategery and misunderestimated with some frequency, too.  It started ironically, like when I started saying "dude" 30 years ago.  And they have weaseled their way into my vocabulary.

I dunno, the idea of "seats" and "pre-selection" hits me wrong for reasons I don't fully understand, or at least can't articulate.  Suffice it to say that the Ted Cruz argument, which you succinctly outlined above, I disagreed with when I read it, after posting.

I wasn't influenced in this by any of the pundits and trolls because I don't tend to seek that shit out. I mostly see it when it exceeds the outrage threshold and gets posted here.  It goes back to whenever I ran across the concept of having seats "reserved" for certain minorities or groups, which is maybe when O'Connor retired?  Although I think the concept of a "Jewish seat" already existed, but I wasn't conscious of it.

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23 minutes ago, TwiceHorn said:

I use strategery and misunderestimated with some frequency, too.  It started ironically, like when I started saying "dude" 30 years ago.  And they have weaseled their way into my vocabulary.

I dunno, the idea of "seats" and "pre-selection" hits me wrong for reasons I don't fully understand, or at least can't articulate.  Suffice it to say that the Ted Cruz argument, which you succinctly outlined above, I disagreed with when I read it, after posting.

I wasn't influenced in this by any of the pundits and trolls because I don't tend to seek that shit out. I mostly see it when it exceeds the outrage threshold and gets posted here.  It goes back to whenever I ran across the concept of having seats "reserved" for certain minorities or groups, which is maybe when O'Connor retired?  Although I think the concept of a "Jewish seat" already existed, but I wasn't conscious of it.

I mean, I get it.  On an instinctual level, there's something that strikes one as "unfair."

My point is simply that when you think through it on an intellectual level, that instinct on this issue is wrong.

And I don't think you're necessarily disagreeing with that conclusion, since you acknowledge that you can't articulate why Biden's selection hits you as wrong.

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25 minutes ago, Ghost of LL said:

I mean, I get it.  On an instinctual level, there's something that strikes one as "unfair."

My point is simply that when you think through it on an intellectual level, that instinct on this issue is wrong.

And I don't think you're necessarily disagreeing with that conclusion, since you acknowledge that you can't articulate why Biden's selection hits you as wrong.

No, I'm not disagreeing.  

As seems to be rather typical of me, I am kind of thinking it through "live" on this thread.  Appreciate the input despite my grumpiness at times at being "told what I am thinking."  It's frustrating to read a theory about what underlies my statement and thinking, no, that's not it, that's not it at all.  But, maybe at some level it is.

 

 

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14 hours ago, TwiceHorn said:

Yeah, that's the rub.  Fight fire with fire?  Or at some point try to return to some sort of normalcy.  I fully admit that my feelings on it are pollyannaish.

Normalcy would be admitting that the Supreme Court has always been political:

Quote

A new vacancy on the Supreme Court means a new round of political theater over the beliefs and qualifications of the president’s eventual nominee.

But what does it mean for a Supreme Court justice to be “qualified”? The Constitution is silent on the question, and there’s not much to take from the framers either. To the extent that “qualified” means anything to most people, it’s that the nominee has ample experience on the bench, a standard in keeping with the idea that the court is the final rung on the meritocratic ladder for judges and other legal elites.

If significant experience as a judge is what it means to be qualified for the Supreme Court, however, then most iterations of the court have been patently unqualified. Of the 108 men (and two women) to have served on the court before 2007, according to the legal historian Henry J. Abraham in his history of Supreme Court appointments, 26 had 10 or more years of experience on any court, state or federal. Thirty-eight justices had no judicial experience, and the remaining 46 had only token experience adjudicating disputes from the bench.

Abraham notes that “many of the most illustrious members of the court were judicially inexperienced,” among them eight of the 16 chief justices (leaving the interim chief John Rutledge out of it): John Marshall, Salmon P. Chase, Morrison R. Waite, Melville W. Fuller, Charles Evans Hughes, Harlan F. Stone, Earl Warren and William H. Rehnquist.

On this point, the extensive judicial experience of the current court makes it unusual compared with its predecessors. Stephen Breyer, who announced his retirement last week, had been a federal judge for 14 years before he was nominated for the Supreme Court in 1994. Samuel Alito was a judge on the U.S. Court of Appeals for the Third Circuit for nearly 16 years before being nominated in 2005. Neil Gorsuch, Brett Kavanaugh and Sonia Sotomayor gave 11, 12 and 17 years to the federal judiciary. Justices John Roberts, Clarence Thomas and Amy Coney Barrett spent little time on the bench before their nominations to the court, while Elena Kagan never served as a judge.

By contrast, of the 12 people who served with Warren Burger during his 17 years as chief justice, only one — Harry Blackmun — had more than a decade of judicial experience. Burger, for his part, had been a judge on the Court of Appeals for the D.C. Circuit 13 years before he was nominated to be chief justice by President Richard Nixon in 1969.

A qualified nominee, in other words, is not necessarily a judicially experienced nominee. Looking at the entire history of the court, you could almost say that judicial experience is incidental to the making of a Supreme Court justice.

The Supreme Court, then, isn’t necessarily the capstone where you finish your illustrious legal career. It is, instead, just another political institution — insulated from the vicissitudes of ordinary politics, yes, but still operating within the boundaries of political life. And if the court is political, even sometimes partisan, then so too is the nomination process.

In choosing his nominees, George Washington looked for, among other things, men who would support his Federalist philosophy of government. His first appointment, John Jay of New York, was an ardent supporter of the Constitution and a steadfast defender of Washington himself. When Thomas Jefferson had his chance to fill a vacancy on the Supreme Court, in 1804, he made it clear that he would nominate only loyal Democratic-Republicans. His first nominee, William Johnson, was a 32-year-old South Carolina lawyer working in private practice. He was confirmed by voice vote.

Political considerations abounded in the nomination battles of the late 19th century. For example, to fill a vacancy left in 1887, President Grover Cleveland chose his secretary of the interior, Lucius Quintus Cincinnatus Lamar, a Mississippi native and former Confederate soldier whose nomination was a reward to the Democratic Party’s loyal supporters in the white South.

All of this was true in the 20th century as well, when justices were chosen for who and what they represented to the president and his political coalition as much as they were for any particular skill or legal acumen. William Howard Taft was, before the 1912 presidential election, worried that he would lose the Republican nomination to a restless Theodore Roosevelt. In October 1911, when the death of Justice John Marshall Harlan left a vacancy on the court, Taft made his choice with the next election in mind. His nominee, Mahlon Pitney, was a prominent New Jersey Republican and state judge with a career of loyal service to the party. “Whether or not the selection of Pitney was decisive,” Henry Abraham writes, “New Jersey’s Republican delegation did cast its votes for Taft in the National Convention of 1912.” (Taft, it’s worth mentioning, would lose that election and then go on to serve on the Supreme Court himself.)

There are many more examples to pull from, but the larger point should be clear: To be “qualified” for the Supreme Court is simply to be the right person for the political needs of the moment. Sometimes, the right person has ample judicial experience. More often, he or she does not. What that person does have, however, is wide experience in public life. For most of the history of the United States, the path to the Supreme Court involved political work, a stint in public office or a prominent position in public affairs, as well as some legal experience.

The Supreme Court is not and has never been a place where peerless legal experts plug disputes into the Constitution and use their powers of mind to produce “correct” answers. “If the materials on which judicial judgments must be based could be fed into a machine as to produce ineluctable answers, if such were the nature of the problems that come before the Supreme Court and such were the answers expected, we would have IBM machines doing the work instead of judges,” Justice Felix Frankfurter wrote in a 1954 essay for The New York Times Magazine.

For Frankfurter, who at the time had served on the court for 15 years, the challenge of being a justice was the challenge of self-doubt and self-awareness. “Of course a judge is not free from preferences or, if you will, biases,” he wrote. “But he may deprive a bias of its meretricious authority by stripping it of the uncritical assumption that it is founded on compelling reason or the coercive power of a syllogism.” He continues: “He will be alert to detect that though a conclusion has a logical form, it, in fact, represents a choice of competing considerations of policy, one of which for the time has won the day.”

If there’s anything that might cultivate that attitude — this sense of trade-offs, compromises and the limits of one’s own perception — it is politics, public service and public office. (Frankfurter, for his part, served in the Taft administration, participated in the founding of the American Jewish Congress and was one of the founders of the A.C.L.U.) There is also something admirably democratic about choosing to interpret the Constitution people who have, at one point in their lives, been responsive to or responsible for the mass of ordinary citizens.

It is something we’ve lost in our current norms regarding the court, where members come from a handful of the same law schools, have some of the same kinds of experience and largely avoid any public-facing political work before donning the robes of a Supreme Court justice.

This might serve the vision of the court as a place where highly trained elites act as umpires calling “balls and strikes” — a vision, incidentally, that serves those who would use the court to impose a partisan and ideological agenda under the guise of “restraint” — but it doesn’t serve the public or, for that matter, our constitutional order.

Whoever President Biden nominates to fill the vacancy left by Justice Breyer will be qualified according to our current standards for education and experience. She will also fit the traditional standard of a person who meets the needs of the president and his coalition. And to the extent that Biden has been open about the politics and political optics of this nomination, I think he’s done a service to the public.

The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood. Anything that makes this clear, anything that helps bring the court back down to earth where it belongs, is worthy of our support.

 

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1 minute ago, wildcat09 said:

I have never contended that the Court is not political.

I do think that it has become rather extremely so more recently.

Part of this is my personal makeup.  In litigation or dispute scenarios, I have a pretty good ability to "see both sides," and to evaluate the judicial or more neutral reaction to the sides.  I tend not to get eaten up with the righteousness of the side I find myself on.  It is an advantage as an advisor and a disadvantage as an advocate. It's the engineer in me, I think.

I am rather certain that that trait comes through in my posting on here on controversial subjects.

And that means that I tend to ascribe my own characteristics to other lawyers and judges and justices:  that I am going to strive to put aside personal biases and reach the correct or best decision under the law. 

At the same time, I acknowledge that Justices frequently have nothing to go on in making decisions but personal biases, or at least that it is very easy for the biases to creep in for the decisions they have to make.

So, I dislike the environment that essentially evaluates judges and justices on their personal biases and encourages them to indulge them.  Or worse yet, not to indulge personal biases, but to indulge political considerations that the Justice may not even personally agree with. Which is where we are currently.  And I don't think that was quite as true in the past.

 

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I can't bring a legal perspective to this argument, or even much of a historian's perspective, but I do remember the uproar over Robert Bork's nomination by Ronald Reagan.  The argument was whether "qualifications" (which aren't clearly defined) should be sufficient to be seated on the Court, or would it be possible to reject a nominee because of their political leanings?  At the time, the latter was considered a radical concept.  The mainstream perspective was that as long as the President nominated someone who met the nebulous standard of a Supreme Court Justice (likely to include a lack of a criminal record, but extending to legal training, etc.), then that candidate should be rubber-stamped.

Obviously, we're not there any longer.

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1 hour ago, TwiceHorn said:

No, I'm not disagreeing.  

As seems to be rather typical of me, I am kind of thinking it through "live" on this thread.  Appreciate the input despite my grumpiness at times at being "told what I am thinking."  It's frustrating to read a theory about what underlies my statement and thinking, no, that's not it, that's not it at all.  But, maybe at some level it is

as part of the legal profession, i would assume you 'hoped' that the supreme court would be the last to turn completely political.  it's understandable that your brain isn't allowing to see or accept what's right in front of you.  i don't think it's naive as much as optimistic or hopeful. 

if the trump years have taught us anything, it's that it's time to forget everything you learned from 4th grade social studies.

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at the single biggest Moment of Consequence of robert bork's life, and having the benefit of the example of two men who'd just gone through the exact same decision, he chose wrong, and showed that he didn't have the ability to judge even a kangaroo court, let alone sit on the supreme court.  fuck that guy and fuck every nixon ball licking asshole republican who says 'oh yeah what about robert bork'

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18 hours ago, henrygandorf said:

after the mcconnell/garland/acb situation, i could give a shit if things look political. 

voting rights, climate, science, public health are all political already.  what's one more thing?

This is where the Democrats have to be, for the good of the country.  They have played nice for far too long and look where it's gotten them (us as a country).  Just read the shit the R's are openly saying about a black SC nominee?  Openly italicized because some of you probably have not heard what's being said behind closed doors.  Fucking pathetic. 

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12 minutes ago, elfenix said:

at the single biggest Moment of Consequence of robert bork's life, and having the benefit of the example of two men who'd just gone through the exact same decision, he chose wrong, and showed that he didn't have the ability to judge even a kangaroo court, let alone sit on the supreme court.  fuck that guy and fuck every nixon ball licking asshole republican who says 'oh yeah what about robert bork'

Robert Bork is really the perfect representation of their total bullshit about simply wanting someone who will interpret the law. That motherfucker not only completely twisted antitrust law, he said the 9th Amendment should be treated like an inkblot because he didn't like what it said. 

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4 hours ago, TwiceHorn said:

Or worse yet, not to indulge personal biases, but to indulge political considerations that the Justice may not even personally agree with. Which is where we are currently.  And I don't think that was quite as true in the past.

Perhaps not in the recent past (most of our adult lifetimes), but over the course of the country's history the court has most certainly had periods in which the justices did just that.

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4 hours ago, jimmyjazz said:

I can't bring a legal perspective to this argument, or even much of a historian's perspective, but I do remember the uproar over Robert Bork's nomination by Ronald Reagan.  The argument was whether "qualifications" (which aren't clearly defined) should be sufficient to be seated on the Court, or would it be possible to reject a nominee because of their political leanings?  At the time, the latter was considered a radical concept.  The mainstream perspective was that as long as the President nominated someone who met the nebulous standard of a Supreme Court Justice (likely to include a lack of a criminal record, but extending to legal training, etc.), then that candidate should be rubber-stamped.

Obviously, we're not there any longer.

I thought Bork got borked because he tried to help Nixon skate. A true dirtbag or do I have it wrong?

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5 minutes ago, Sawbonz said:

I thought Bork got borked because he tried to help Nixon skate. A true dirtbag or do I have it wrong?

He got borked for a lot of reasons, and that "Massacre" participation probably weighed heavily.  My main point was that he seemingly met the nominal standards of a Justice and until then, as I heard it in real time, that was sufficient for a rubber-stamp approval.  It's entirely possible that wasn't even true; like I said, I'm not exactly a historian, I'm just relating the debate at that time.

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7 minutes ago, Sawbonz said:

I thought Bork got borked because he tried to help Nixon skate. A true dirtbag or do I have it wrong?

That's certainly part of the reason. The primary reason though is just that he came across as a complete asshole during his confirmation hearings and nobody liked him. 

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8 minutes ago, wildcat09 said:

That's certainly part of the reason. The primary reason though is just that he came across as a complete asshole during his confirmation hearings and nobody liked him. 

Well, there's a valid reason that he came across as a complete asshole. 

 

He was a complete asshole.   He had the Ted Cruz "I'm the smartest guy in the room" thing going 24/7

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55 minutes ago, henrygandorf said:

i'm gonna go ahead and say that an "ethicist" has to be about the lamest ist you could have a bourbon with.

a futurist would be the coolest.  

that's all.

Actually, I have heard that Gillers is kind of a righteous dude, personally.  And there's a guy, used to work at Baker Botts, now a law prof and consultant that specializes in ethical issues for IP attorneys and he actually is a righteous dude. https://guides.law.mercer.edu/hricik

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3 hours ago, wildcat09 said:

That's certainly part of the reason. The primary reason though is just that he came across as a complete asshole during his confirmation hearings and nobody liked him. 

There was that, but, really, I think he was the most blatantly political nominee to that point in time.

He was pretty strident on his antitrust stuff, which was political in a pretty subtle way, but was also a critic, not of Roe v. Wade, per se, but of the penumbral right of privacy and the public figure doctrine in First Amendment case and some other things, maybe affirmative action.

By my recollection, in those days you didn't ask a justice nominee about a particular case because it was believed that ethics and protocol didn't permit an answer to that sort of thing.**  That has become more blatant since.

And yeah, he came across as a pointy headed mother fucker like Cruz.  Not as smarmy, but a lot of intellectual arrogance.

** the rule used to be that a judge/judicial candidate was not supposed to express an opinion on a case that could come before him or her, even a hypothetical one.  That's still a rule, but it it circumvented almost entirely by asking "was Roe decided correctly"? Which is a pretty grotesque evasion of the spirit of the rule, given the pendency of cases raising that precise question every time it has been asked.

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25 minutes ago, TwiceHorn said:

Actually, I have heard that Gillers is kind of a righteous dude, personally.  And there's a guy, used to work at Baker Botts, now a law prof and consultant that specializes in ethical issues for IP attorneys and he actually is a righteous dude. https://guides.law.mercer.edu/hricik

you sound just like one of them.

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20 hours ago, babysdaddy said:

How is that fucking moron the leader of the Senate.  Warren, Warner or Durbin would be so much better

Wow it's almost like the dems leadership is fucking hollow and has been driving the party off a cliff since 2012. Or something

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