Mark Janus

I Doubt This Is the Right Way to Manipulate Justice Gorsuch

Capsule summary: "Vote the way we want you to, and maybe we'll have just a bit less contempt for you than we now do."

|The Volokh Conspiracy |

From a post (not by Michael Dorf) on Dorf on Law:

Just about everyone is expecting Justice Gorsuch to vote with the conservatives [in Janus v. AFSCME, the compulsory agency fee case], and overturn Abood [v. Detroit Bd. of Ed.]. But I am not so sure. He was uncharacteristically silent during the oral argument. Moreover, as I wrote here, there are strong stare decisis reasons not to overturn Abood. It would not be hard for Justice Gorsuch to say that he would have voted differently in the first instance but respect for precedent requires him to affirm Abood.But why would he do that?

Maybe Gorsuch would like to change the narrative that he is nothing but a Scalia/Thomas clone who always votes or almost always votes in lockstep with the conservatives and the Republican Party. Gorsuch just completed his first year on the bench and the reviews from conservatives have been uniformly sparkling while liberals, including this author, have been extremely critical. Criticizing everything from his bad writing, to his originalist hypocrisy, the expectation among left-of center and liberal media is that Gorsuch is an ideologue who will just be one more reliable right-wing vote.

There is of course also the problem that Justice Gorsuch is on this Supreme Court only because this Senate Majority Leader stole the seat from President Obama. Everyone knows that Merrick Garland would have voted with their liberals to reaffirm Abood. If Gorsuch sides with his conservative colleagues to reverse the case, there is no doubt that the decision will be deemed illegitimate by many on the left. Gorsuch could dramatically change the narrative of his career by voting not to reverse Abood.

I am not suggesting that he would do so if he was convinced the law required a different result, just as I am sure Chief Justice Roberts believed the position he espoused in NFIB was correct. But of course, the Justices have great discretion in deciding these difficult legal cases. Justice Gorsuch could easily and not controversially justify a vote for the states in Janus by relying on the doctrine of stare decisis. If he did that, he could write an opinion advocating for the rule-of-law values he claims to take so seriously. Additionally, there is no legitimate originalist argument to support shredding over 20 state laws imposing fees for bargaining-related activities. If Justice Gorsuch were to anchor his vote in originalism and stare decisis concerns, he would prove his critics wrong and do the right thing all at the same time.

Supreme Court Justices are people just like the rest of us. Although they hold their seats for life, they want to be considered good at their jobs and principled decision-makers. Don't be surprised if Justice Gorsuch uses the Janus case to demonstrate that he is not just a clone of the late Justice Scalia.

Will Baude and I filed an amicus brief supporting the AFSCME position in Janus, and I naturally hope Justice Gorsuch will agree with us. (We actually think Abood should indeed be overturned, but in the opposite direction from what many conservatives have argued.) I also think there are plausible stare decisis reasons for keeping Abood, despite its unsound reasoning and the vagueness and illogic of the line it draws between what uses of agency fees are allowed and what uses are not; questions about what to do with unsound precedents are always complicated.

But I would much rather that Justice Gorsuch disagreed with me, than that he voted with me because he "would like to change the narrative that he is nothing but a Scalia/Thomas clone," or that he is worried "that the decision will be deemed illegitimate by many on the left," or that he is worried about the "left-of center and liberal media," or that he wants to "dramatically change the narrative of his career"—that is to say, the narrative as written by people who seem to have contempt for his views, and, basically, for him.

You're a hypocrite! You're a bad writer! You're in a stolen seat! But if you vote the way we want you to vote, maybe we just might like you! … at least until you next cross us. What is this, Mean Girls: Supreme Court Edition?

From what I know of Justice Gorsuch, that's not the way to his heart (nor should it be the way to the heart of any self-respecting Justice, conservative or liberal). Still, hey, if I'm right, just keep on talking that way, folks—good to see the tactic out in the open.

NEXT: Forcing Restaurants to Pay Servers More Will Cost Everyone

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  1. Eugene, I am a bit surprised you think I think I have the ability to manipulate Gorsuch (I wish). I was making two points: 1) the Justices are people too with mixed motivations like the rest of us; and 2) It wouldn’t surprise me if Gorsuch joins the liberals in Janus. Why did this bother you so much? You think I think Gorsuch will actually read this? You think when Justices have enormous discretion they just do what they think the law requires? I said Gorsuch wouldn’t write an opinion he didn’t believe but that there are many factors at work in Janus. That’s all.

    1. Is this your view:

      “There is of course also the problem that Justice Gorsuch is on this Supreme Court only because this Senate Majority Leader stole the seat from President Obama.”

      That sounds like something out of Huffington Post or Democratic Underground.

      1. “That sounds like something out of Huffington Post or Democratic Underground.”

        Not really. That said, if the Democrats take the Senate, I fully expect you to be happy if and/or when Trump is denied judicial appointments for two years, because.

        1. That would depend on the quality of the judge who ends up getting appointed, wouldn’t it?

          And the quality of a judge includes his/her view of the amendment process – is it reserved to the people, or do judges get to amend the Constitution under the name of “interpretation”?

          1. Doesn’t matter. You don’t get a say. Quality doesn’t matter- and there is no hearing or recourse. And, per McConnell, if the Democratic party retakes the Senate, they can just play out the next two years and let the next election happen.

            1. I used to think the Republicans should keep the filibuster – and avoid the “nuclear option” – so as not to set a bad precedent for Democrats to use against them. Then the Democrats, instead of responding favorably to Republican restraint, went ahead and used the “nuclear option” anyway.

              “If the Democratic party retakes the Senate,” I don’t expect any good nominees to get confirmed, regardless of what procedure they follow. If they confirm anyone nominated by Trump, it will likely be someone acceptable to the Democrats, with all that entails.

              1. ” If they confirm anyone nominated by Trump, it will likely be someone acceptable to the Democrats,”

                Let me be clear- I fully expect and hope that the Democrats do not allow any Judicial appointments through. Definitely the Supreme Court, and, heck, let’s toss in the Court of Appeals as well.

                If the new normal is that you have to control the Presidency and Senate for judicial appointments, so be it. Thanks Mitch.

                1. I see little to choose between judges nominated by Democratic Presidents and Republican nominees who are acceptable to Senate Democrats.

                  1. That’s because you lack a certain familiarity with the process, and how it used to work before Mitch broke it.

                    A great deal of deference was given to the Presidential nomination to the Supreme Court; despite people complaining about how various nominees were treated, it was unheard of for a nominee to be taken down for purely partisan reasons. Two in recent memory were withdrawn (Miers, because the President’s own party revolted, and Ginsburg, because of the marijuana thing), and only one was shot down (Bork- because of his jurisprudential views, because of his role in the Saturday Night Massacre, and because of his testimony before the committee … which caused future hearings to be more “kabuki” style theater).

                    That said, the process is fundamentally broken because it is not viewed in a completely partisan way and because it is removed from general political constraints (the ballot box). Now, I just want it all to break down completely so we get real reform.

                    1. “A great deal of deference was given to the Presidential nomination to the Supreme Court”

                      Is this a good or a bad thing? I would think it’s a bad thing, unless you have a lot of trust in the Pres, that is.

                    2. The Constitution doesn’t mandate a government that works; only our political norms have allowed that. This is why America, alone, is the sole country that has muddled along with a bicameral system with a strong President, and why our system of government doesn’t work for other countries (see also, instability in the countries that attempted to model our system).

                      The standard is that the judiciary is within the purview of the President, not the Senate. That is a good thing because it works, and, to the extent people care, it is easily remedied at the ballot box (you vote for the Executive that gives you judges you want). Because of the nature of the Senate, and the staggered terms, you could easily sweep an Executive into office with a mandate that is nothing more than “Get judges in,” who, under the Mitch rules, would be stymied by the Senate. Then, within two years, events happen and that’s no longer a salient voting point in the Senate. And so on. The diffusion of accountability is a serious problem.

                    3. “The standard is that the judiciary is within the purview of the President, not the Senate. That is a good thing because it works”

                      Perhaps you trust President Trump more than I do. 🙂

                      And what evidence would we need to see in order to decide whether deferring to the President “works”?

                      Do we compare Judges Haynesworth and Carswell – nominated by Nixon but rejected by the Senate – with Justice Blackmun – the eventual nominee? Do we conclude that Carswell (say) would have made a better Justice than Blackmun?

                      Do we black armbands on the birthday of William B. Hornblower in order to mourn his rejection by the Senate?

                    4. Keep in mind that President Obama, while in the Senate, voted against cloture when Samuel Alito was nominated.

                    5. “Keep in mind that President Obama, while in the Senate, voted against cloture when Samuel Alito was nominated.”

                      O.M.G. STFU. Really.

                      This is what is so obnoxious about some people; a complete ignorance of all context in order to get to their pre-determined point. Bonus for, “But Obama,” as it’s a nice twist on, “But Reid!”

                      Alito was always going to make it through. Had the Democrats really wanted to stop him, the cloture vote (that was the 60 vote threshhold) would have been the end of it. Instead, Alito got past it, with some Democrats (incl. Obama, who needed that vote for higher office in a few years) being allowed to register their votes for against cloture, KNOWING that it would fail.

                      Then Alito was allowed a full Senate vote, which of course he passed. This is how politics works. People like you are, quite literally, the worst. You are the reason that our political system is breaking.

                      Now, let it just finish breaking completely. It wasn’t very long ago when I was trying to reassure people. Now? Let it burn.

                    6. loki’s cry from the heart here is a bit tragic but I’m getting there … the Republicans jumped the shark with Trump.

                    7. Alito was always going to make it through. Had the Democrats really wanted to stop him, the cloture vote (that was the 60 vote threshhold) would have been the end of it. Instead, Alito got past it, with some Democrats (incl. Obama, who needed that vote for higher office in a few years) being allowed to register their votes for against cloture, KNOWING that it would fail.

                      It does not change the fact that Obama voted against Alito having a floor vote.

                    8. “before Mitch broke it”? It astonishes me how easily people rewrite their own histories. Harry Reid broke the process. McConnell just followed suit.

                    9. ” It astonishes me how easily people rewrite their own histories. Harry Reid broke the process. McConnell just followed suit.”

                      Bullshit.

                    10. Not bullshit. The process said you don’t go nuclear. Reid went nuclear. Process over. All senate norms over. It all ended, and we’ll probably never get it back.

                    11. And don’t forget that Bork got a committee hearing and a floor vote.

                    12. Even Fortas — who was blocked for good cause — got a committee hearing.

                    13. Loki: “so we get real reform”

                      And you really think this will happen? In a good sense? I think it’s more in the direction of “a house divided against itself cannot stand.” And both parties have worked assiduously toward that end.

                2. “If the new normal is that you have to control the Presidency and Senate for judicial appointments, so be it.”

                  Agreed.

                  1. You guys are missing the end point. You’re too focused on just the “next” step.

                    It doesn’t stop with not appointing judges and justices when the Senate and Presidency are of different parties. No!

                    The /following/ step is for the next Pres/Senate combo to pack the benches. Raise the numbers massively and appoint all their own boys and girls. Then do almost whatever they want and have everything declared constitutional. You think that’s not the direction we’re headed? What in the world of hyper-partisanship would stand in the way? A coup? There are any number of countries we’d be emulating.

              2. “Republican restraint” is a unique shorthand for the unprecedented GOP blockade of Obama’s judicial appointees.

                1. I don’t think “he started it” is going to get us anywhere at this point, but that doesn’t mean that I can let obvious lies go by unrebutted. This “unprecedented GOP blockade” is both imaginary and not unprecedented. I’m old enough to remember a complete Democratic blockade in the early 2000s, causing then-GOP senate leader Bill Frist to start talking about the nuclear option, causing hysteria among liberals who announced that filibustering nominees was as venerable an institution as the judicial system itself.

                  1. It’s not a lie, not imaginary, and not comparable to what you “remember,” David. Over forty percent of all of Obama’s nominees were approved after the nuclear option. Even non-controversial nominees were held out of spite.

                    1. DMN forgets, I assume, about the GOP’s meeting and plan to do everything possible to obstruct and block everything Obama. It wasn’t even a secret, yet so many here refuse to remember it.

                      By the way, there was increasing tensions over the judicial process, and you can date it back to the Reagan years. But I will stand by the assessment that McConnell’s action was a new low, to which I will reiterate- burn it all down.

                    2. You misinterpret. I was not denying that the GOP was being obstructionist towards Obama’s nominees; I was denying that it was “unprecedented.”

                    3. Wow, when you implement the nuclear option it soon becomes the only tool you have, whodathunk?

                  2. . I’m old enough to remember a complete Democratic blockade in the early 2000s

                    Come on, man. I was too young, but whatever that was, it wasn’t keeping a SCOTUS seat open independent of the candidate to spite the President.

                    Neither side has covered themselves in glory in the appellate nomination process. But the GOP’s behavior regarding Garland was a new level of nihilistic in it’s partisanship.

                    1. “Come on, man. I was too young, but whatever that was, it wasn’t keeping a SCOTUS seat open independent of the candidate to spite the President.”
                      That’s exactly what it was.

                    2. “That’s exactly what it was.”

                      And … welcome to the world of alternative facts; aka, why we can’t have nice things anymore.

                    3. Yes, Democrats live in the universe of alternative facts, which do not represent anything like reality.

                    4. It is very nice to read sanctimonious and hypocritical loki ranting about the loss of ‘nice’ things.

                    5. “It is very nice to read sanctimonious and hypocritical loki ranting about the loss of ‘nice’ things.”

                      Considering your history, for you to criticize someone is the highest of compliments.

                      Thank you, and don’t let the door hit your sorry ass on the way out.

                  3. This article http://time.com/5066679/donald…..es-record/

                    describes that Trump has 12 judicial nominees confirmed in his first year, compared to 3 for Obama and 6 for GWB. Not sure how that lines up with your recollection.

          2. E: “do judges get to amend the Constitution under the name of “interpretation”?”

            Eric “Bugsy” Segall (his theories are full of bugs) actually argues that that’s the way the Framers planned it, and that we should not consent to rules written by 18th-Century slaveowners. But in their place, he would nominate King Judge to be our ruler.

        2. “That said, if the Democrats take the Senate”

          Big if, there are only 8 Republican held Senate seats up for re-election in 2018.

          “I fully expect you to be happy”

          Happy? No, but I won’t be upset about it either. There is no obligation for the Senate to act on any given Presidential nomination and it would take a constitutional amendment to create an enforceable obligation.

          It is what it is, and it has been building up to this for a long time. You are delusional if you imagine that this started with Obama and Gorsch.

          1. There is no obligation for the Senate to act on any given Presidential nomination

            This conservative thesis of ‘if it’s not illegal, it’s totally cool’ is just the worst.

            There is a moral obligation to be statesmen, not partisan hacks, and at give the nominee a look.

            loki’s wants some tit for tat after the GOP’s complete moral surrender in favor of such legal formalities. I’m not quite there, but I am amused in the bewildered reactions he’s getting.

            Me? I’m all for Democrats rising above the GOP’s moral morass and at least giving any Trump nominee an evaluation on the merits.

            1. If Trump is a racist who must be #resisted, then why should the Senate be obliged to give his judicial nominees a hearing? Why not wait for a good non-racist Democrat to be elected, otherwise Trump will spread his racism all over the bench.

              1. Look, I’m against partisanship as much as the next person…partisanship is very bad…almost as bad as what goes under the rubric of “bipartisanship,” where the two parties stop their petty bickering and unite against their true enemy, the public.

              2. Because partisans in the streets don’t have the same perspective, incentives, or responsibilities as partisans in Congress.
                Both have their utility, but conflating them has become a sickness I hope stays localized to the GOP and fringes of the left.

            2. “loki’s wants some tit for tat ”

              That’s politics. Nothing wrong with it.

              Of course I want some tit for tat next time there is a GOP senate and a Dem president.

              No judges for 4 years sounds about right.

            3. “This conservative thesis of ‘if it’s not illegal, it’s totally cool’ is just the worst.”

              It’s not a “conservative” thesis. There is actual precedent in practice of the Senate ignoring presidential supreme court nominations going all the way back to the pre Civil War era.

              “There is a moral obligation to be statesmen, not partisan hacks, and at give the nominee a look.”

              There is not and never has been any such thing as a “moral obligation” in politics.

              “Me? I’m all for Democrats rising above the GOP’s moral morass and at least giving any Trump nominee an evaluation on the merits.”

              Given the way the Democrats treated G.W. Bush’s nominees, I would consider this highly unlikely.

              Personally, I think they should dump the confirmation hearing nonsense*, skip committee approvals and give every nominee an up/down vote on the full Senate floor. I’m just not naive enough to think either the Republicans or the Democrats will ever support such an approach without having it shoved down their throats in a legally enforceable way.

              *The entire notion of committee hearings (or even just committee review) on nominations is relatively recent, have started some time after WWII.

              1. “There is not and never has been any such thing as a “moral obligation” in politics.”

                And it is people like you that explain why we have Trump.

                To the extent that people have abandoned the idea that the is some moral imperative, even one as simple as, “Do what you believe is right for the country, and try to leave office with the country in a little better place than when you entered,” it doesn’t matter what rules we have and what strictures we have set up for countervailing ambition with ambition; we are long past the point of being lost.

                1. There is not and never has been any such thing as a “moral obligation” in politics.

                  Holy crap have you never read the Founders?

                  I get loki’s despair, but I take some solace in the fact that we’ve had a couple of other crucibles for our republican values (Civil War; 1890s corruption; Great Depression; GOP support of Nixon). I don’t know how we’re gonna get out of this enthusiasm for moral nihilism on the right, but that doesn’t mean we won’t.

                  1. Yes, I’ve read quite a bit of the writing of the Founders. On this, they were fools. Corruption, lies, and double dealing have plagued US national politics going all the way back to the administration of George Washington.

                    Look into the dealings of Washington’s Secretary of the Treasury, Alexander Hamilton.

                    He was involved in the convention that wrote the constitution. He told his state’s ratifying convention that the constitution would not allow the creation of a national bank, they likely would not have ratified otherwise. Yet one of his first acts as Secretary of the Treasury was to try and create a national bank.

                    When you hand one man power over other’, there can be no obligations but those that can be enforced by means stronger than stern disapproval.

                  2. Sarcastr0: “enthusiasm for moral nihilism on the right…”

                    You almost had me until that “it’s only the right” sentiment.

                    Nonsense! The Right is hardly alone in this.

                    For goodness sake, it /was/ the Democrats who ended the filibuster on all non-SCOTUS nominees. And it /was/ Reid who crowed about how the Democrats would use the nuclear option on SCOTUS nominations, thinking they’d re-take the Senate. And it /is/ the Democrats who created the “Resistance” from what was once the loyal opposition.

                    This doesn’t end well, either way. It has a terrible logic to it.

                  3. Holy crap have you never read the Founders?

                    lt is self-evident that you haven’t. lf you were familiar with Locke, Blackstone, Jefferson, the Federalist, and Elliot’s, you wouldn’t spew the bat guano you do. The Framers were mostly Calvinists, who embraced his view of the essential depravity of Man. Men could be trusted to act like men–in their own most craven self-interest. E.g., Fed #51. lt is why they had such severe controls over the judiciary, and why ordinary citizens were the only ones who could remove them from office for malfeasance.

                    ln the words of Jefferson, “It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”

                    The 7Am was a bulwark “agst. corrupt judges.” Eldridge Gerry. No one expected them to be moral, and this problem first arose in earnest in the Midnight Judges affair.

                2. “To the extent that people have abandoned the idea that the is some moral imperative”

                  I haven’t abandoned the idea that there is some moral imperative in politics, I have become convinced that no such moral imperative EVER existed outside the delusions of the little people who bought the lies the politicians have always been selling. Nor do I believe that such morel imperatives could ever exist in politics.

                  Politics is inherently amoral. If you want imperatives in politics they have to be enforceable in law.

                  I didn’t vote for Trump, I actually considered voting for Hillary, but in the end, I couldn’t stomach that either.

                  1. “Politics is inherently amoral. If you want imperatives in politics they have to be enforceable in law.”

                    Life is inherently amoral, if you want to go that far.

                    That doesn’t excuse people from not acting morally. And that doesn’t mean we shouldn’t expect moral and ethical behavior from each other.

                    The dumb people aren’t the ones that want and expect ethical and moral behavior; it is those, like you, who excuse people because they are politicians completely. As I already wrote, you cannot expect the prolixity of a legal code to enforce all moral and ethical norms; at a certain point, it is the pressure of your peers and the community that does it. Those, like you, who excuse politicians so long as they advance your cause are the problem, not the solution.

                    1. “The dumb people aren’t the ones that want and expect ethical and moral behavior; it is those, like you, who excuse people because they are politicians completely.”

                      I excuse no one. It’s not that I don’t think that there should be rules, I just don’t believe that moral/ethical rules will ever be sufficient when it comes to politics. I want rules that can be genuinely enforced.

                      “it is the pressure of your peers and the community that does it.”

                      Except it doesn’t do it. The lesson of history is that peer/community pressure has been an abject failure when it comes to enforcing moral/ethical rules in the political arena.

                    2. “Except it doesn’t do it. The lesson of history is that peer/community pressure has been an abject failure when it comes to enforcing moral/ethical rules in the political arena.”

                      Wrong. The lesson, as always, is we get the government we deserve.

                      I’ve been watching immolation of the GOP with some discomfort*, but even I was shocked that they would succumb to Trump. I know that Trump, who has long been a known grifter and liar, too over the GOP, but it is the collapse of moral and ethical rules that allowed him to do so.

                      By their nature, politicians are self-interested; but they are also interested in the benefit of the country … otherwise, why bother. Time and time again we have seen that the resort to legal rules is a failure of society to self-govern. Same here.

                      *In terms of a strong party with defined principles, as opposed to a shell for an incompetent authoritarian organized around the principles of “owning the libs,” “wealth transfer to the corporations,” and “occasional red meat to old white men and/or Fox viewers.”

                    3. “Wrong. The lesson, as always, is we get the government we deserve.”

                      ==> Well, /I/ didn’t get the government /I/ deserve! And neither did my grandkids.

                      “I’ve been watching immolation of the GOP with some discomfort*,”

                      ==> Yes. As well as the immolation of the Democratic Party.

                    4. The “both sides” argument really is a problem. Yes, Democrats are hypocrites and self-serving, just like all human beings are. But just within the past 25 years there are numerous outrageous things done by Republicans for which there’s simply no comparative sin by the Democrats:

                      1. The election of Donald Trump, who spent 5 years loudly proclaiming that our then-President hadn’t been born in America and, therefore, was Constitutionally illegitimate.
                      2. The refusal even to permit a vote on the nomination of Merrick Garland to the Supreme Court.
                      3. The years-long crusade to investigate Bill Clinton (including for things that pre-dated his Presidency), ending in his impeachment for lying about a consensual liaison.
                      4. The ongoing campaign to undermine the investigation into Russia’s interference in the 2016 election, including McConnell’s refusal to agree to a bipartisan announcement before the election and the smearing of career Republican law-enforcement officers as the right-wing media and politicians try to make it appear that Democrats (who have no power whatsoever) are engaging in a “witch hunt” against the President.
                      5. George HW Bush’s pardons (including pre-emptive pardons) of the people involved in the Iran-Contra affair.

                      The Republican Party has been taken over by, to use the word of another commenter, nihilists. Their behavior is killing our country. It has to be stopped or we’re headed for a very bad end.

                    5. JS-H: Yes, yes, and these are all awful things. I certainly don’t justify or excuse the actions of the Republican Party, but you’re setting up a typically partisan argument filled with equal amounts of reasonable fact and straw.

                      Let’s just go through them, though it’s not going to change any minds.

                      “1. The election of Donald Trump, who spent 5 years loudly proclaiming that our then-President hadn’t been born in America and, therefore, was Constitutionally illegitimate.”

                      The “Republicans” did not elect the ogre Donald Trump. The electoral college did. And 62 million voters chose him. Many Republicans denounced him and tried to elect someone else, but they were swamped by the populist wave (that can get us into another — very long — conversation).

                      “2. The refusal even to permit a vote on the nomination of Merrick Garland to the Supreme Court.”

                      Everyone has a right to be aggrieved about this. It is one of the steps we’ve taken toward being that house divided against itself. But would you actually have felt any better if Garland’s nomination had been killed in committee? Or brought to the Senate floor and killed there? Because that’s what would have happened. The Republicans chose the “sit on it” strategy because it didn’t require them to actually vote against a man whom many had recently praised, and because if/when Hillary Clinton won they could then say “no harm, no foul” and vote him in (if she wanted him).

                      (continued)

                    6. (continuing)

                      3. The years-long crusade to investigate Bill Clinton (including for things that pre-dated his Presidency), ending in his impeachment for lying about a consensual liaison.

                      You know, Clinton could have actually told the truth under oath. Or he could have refused to answer the question (Alan Dershowitz talks about his — he could have called the question contrary to the dignity of the office and let the chips fall where they may). I’m one of many who judges his actions and his lie to be too minor to qualify for impeachment — but they were real. And I’m also not going to excuse the /entire/ Democratic body of the Senate for giving him a pass on that, particularly when — though the lie was the evidence at hand — there were substantial other credible allegations that would have sunk most politicians. On that front — DT seems more likely to me to be brought down by the payoff to a porn star for an ancient, one-time dalliance, than by Russian “collusion,” but see the next point.

                      (continued below)

                    7. (continuing)

                      4. The ongoing campaign to undermine the investigation into Russia’s interference in the 2016 election…the smearing of career Republican law-enforcement officers…politicians try to make it appear that Democrats are engaging in a “witch hunt” against the President…

                      Mueller’s investigation appears to be moving along smoothly and — oddly, for Washington — without leaks. What will come of it we will know at the appropriate time. The Congressional actions are Kabuki theater. There are however credible allegations against people in the FBI, two of whom were kicked off Mueller’s team when their actions became known, and a third was fired and is facing criminal investigation–all tied to clear anti-Trump/pro-Clinton biases in ongoing cases. Meanwhile, the Democratic party and the mainstream press play up every bit of innuendo, rumor, and conjecture about DT and the Russians, stirring the pot, stirring the pot.

                      5. George HW Bush’s pardons (including pre-emptive pardons) of the people involved in the Iran-Contra affair.

                      I’m frankly surprised you’re bringing up that ancient history. Iran-Contra was terrible policy, but the pardon is insignificant in comparison to the breakdown of government today. The individuals were all acting at the behest of the previous President, and there is fair disagreement about the extent to which they should be held criminally liable. I see your including it as part of your general partisanship — which is part of the problem.

                    8. Thanks for the reply. Without trying to re-argue the various items:

                      Your apparently reflexive distaste for “partisanship” is fine as a general concept. I agree that voters should make choices based on their perception of what’s the best policy and/or person, and should not blindly follow one “team” or another out of tribal devotion.

                      My point, however, was that sometimes one side is right and one side is wrong. That’s where we are now – the Democrats, for all their many flaws, are a serious party that wants to govern in a manner that’s consistent with our 200+-year history. The Republicans, on the other hand, have been given over completely to the pseudo-conservatives who seek to delegitimize every Democrat and who look upon even the smallest compromise (which is necessary in any society) as akin to treachery.

                      You argue that it wasn’t “Republicans” who elected Trump, but the 62 million people who voted for him, many of whom continue to support him, were almost all Republicans. He ran as a Republican, was elected by Republicans, and has taken over the Republican Party. Every Republican “never-Trumper” is immediately excommunicated — see Jeff Flake, for example.

                      If you want to continue to try to claim “both sides” are the problem, you need to come to grips with the fact that only one side nominated, elected, and supports Donald Trump. The problem isn’t Donald Trump, it’s the Party that elected him.

                    9. Nihilism is the philosophy of supervillains and losers. It’s no way to go through life.

                    10. If Republicans had morals they would do what the Democrats want!

                    11. Yeah, Sam, no need to let the argument sully your brain since a liberal is making it.

                    12. Say what you will about the tenets of national socialism, but at least its an ethos.

                    13. Nihilism? There’s nothing to worry about.

                  2. If you want imperatives in politics they have to be enforceable in law.

                    Message from one of the “little people”: That’s not such great reasoning after you conclude amoral politics will always corrupt the judiciary. It wouldn’t even be good reasoning if you supposed that the judiciary would remain (mysteriously) moral.

                    Sorry, Matthew, but the nation has arrived at the point where defense of immorality (or anti-morality) in politics is the only resort available to Trump defenders. They flock to it, and damn the consequences for the country, because they don’t have any politics of their own to defend. So they get on board with the politics of negation which Trump serves up, because it works on folks like you. It’s pretty transparent, except to the people doing it. They get confused, probably because they get so much reassurance from each other.

                    Your protests about not being a Trump supporter ring hollow, whether or not you voted for him. Because Trump says he wants to tear down what you want to tear down, he’s your guy, and you defend him.

                3. “Do what you believe is right for the country, and try to leave office with the country in a little better place than when you entered,”

                  Good one, my thoughts exactly.

                  And that’s what got Trump elected. No other candidate was willing to do what is right for the country, because nobody else wanted to upset the apple cart of ideological globalist extremism and all that entails — or they were believers in it.

                  1. ideological globalist extremism

                    ???

            4. There is a moral obligation to be statesmen, not partisan hacks, and at give the nominee a look.

              That argument stopped being valid when Bork happened.

              1. “That argument stopped being valid when Bork happened.”

                Again, Bork was turned down by the committee.

                And then, despite advice, he continued on, only to be voted down by the Senate. Not particularly close (and not a filibuster). FWIW, it wasn’t party line, either, and six senators Republicans voted against him.

                That said, I think he should have been voted down just for his role in the Saturday Night Massacre. That, alone, should have disqualified him from every serving on SCOTUS, especially when it was learned that Nixon dangled the prospect of a nomination to SCOTUS to be his hatchet man.

                It’s like the saying, “Those who do not learn from history, are doomed to make stupid comments on the internet and waste everyone’s time.”

            5. There is a moral obligation

              Since when in the history of Man has a mere unenforceable moral obligation ever really restrained anyone with absolute, unchecked power?

              1. There was a period of time where domestic violence was totally legal – the man had complete dominion over his family. And yet, somehow many husbands didn’t kill anyone in their family.

                Incredible!!

                1. Self-interest. Wives weren’t easy to replace.

              2. Since when has any power of enforcement ever restrained anyone with absolute, unchecked power? See what you did?

        3. “I fully expect you to be happy if and/or when Trump is denied judicial appointments for two years”

          Does anyone expect any different? I would be incredibly surprised if the Democrats cooperated with the nomination of any Trump appointee, judicial or otherwise.

    2. So what you are telling us then is that your post was a meaningless piece of mental masturbation to which Prof. Volokh should have paid no attention.

      (The Senate Majority “stole” Gorsuch’s seat from Obama…oh cry me a river).

      1. That neatly summarizes the entire corpus of Eric’s output.

        Power is seldom a subtle thing. The Gang of Five abused their authority in Bush v. Gore, and McConnell abused his in the Garland affair. But this wouldn’t have been a thing if our judiciary was as accountable as the Framers intended that they be.

    3. Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”

      ES (from DoL): “The Justices who sit on the United States Supreme Court are flesh and blood people too. Many court commentators, scholars, and pundits often forget that the Justices are flawed just like the rest of us and sometimes act in accordance with their feelings as much as what they perceive the law to require.”

      l find it appalling that my “inalienable” rights as a human are held hostage to the “feelings” of nine unelected and unaccountable black-robed dictators, and truly grotesque that the bench, bar, and academy sees nothing wrong with that–and that the academy sees this as a goddamned horse race! Can we pray to Ming the Merciless– er, Emperor Gorsuch– so that he might not withhold what is rightfully ours?

      We used to have a 7Am, where the civil jury was final arbiter of both fact and law. See Brailsford v. GA, 3 U.S. 1, 4 (1793). But judges “felt” that this took too much of their power. So, they made it disappear.

      When a judge chose to vent his spleen on a litigant, s/he had the right to appellate review and failing that, the right to certiorari review–a right which still exists throughout the Commonwealth. But judges “felt” that this took too much of their power, so CJ Taft cajoled Congress into abolishing it. Whether this is constitutional is an open question … because our judges just didn’t “feel” like answering it. /2

      1. 2/Believe it or not, appellate review actually used to be a thing. Once upon a time, our judges actually read briefs, held oral argument, and wrote their own opinions. And as a result of this careful effort, reversal rates were ~30%. But judges “felt” that hard work wasn’t fun. So, they invented the non-precedential opinion, where they could be as sloppy or lazy as they wanted to be. Reversal rates fell to as low as 4%, because these crap opinions which Kozinski called “inedible sausage” routinely missed even spectacular errors.

        We were supposed to have the ability to hold Big Gub’mint and its agents accountable for violations of our rights. We even ratified a treaty to this effect (the lCCPR), which is supposed to be “the supreme Law of the Land.” Art. Vl, cl. 2. But judges felt that accountability would take too much of their power, so they invented a pernicious web of absolute sovereign (see Chemerinsky) and official immunities, which they handed out like penny candy. Cf., Jacobs v. US, 290 U.S. 13 (1933) (5Am “takings” clause implicitly waives immunity); see generally, Bivens. But judges don’t “feel like” enforcing the lCCPR, so you have fewer rights than the average lvan in Sarajevo./3

        1. 3/Finally, the Framers had the temerity to condition judicial sinecures on maintenance of “good Behaviour.” For a quarter-millenium, English subjects had the power to remove officials from office for malfeasance, pursuant to a writ of scire facias. See Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L.J. 1475 (1970). ln theory, “It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.” MvM at 174. But as application of this rule would leave them out of jobs, judges don’t “feel like” enforcing it.

          Yes, Eric, judges are flesh-and-blood people. And our black-robed Vlad Putins have done what people in power always do: they grab as much as they can, and insulate themselves from accountability. Judge Bork called this “judicial coup d’?tat,” where our rulers have declared themselves as our Platonic Guardians (Kagan)–wielding veto power over even COTUS itself.

          lt is bad enough that the bar has acquiesced to Chief Justice Putin’s takeover, but there is something perversely comical about Segall’s attempt to excuse it./end

  2. I don’t buy the idea Gorsuch is making decisions based on concerns as to how he’ll be perceived by The Left. I’ve yet to see one conservative behave in that manner or give one care as to how a decision will be viewed by The Left, with the obvious exception of “Librul Tears!”

    Likewise, I don’t buy the idea that liberal criticisms of Gorsuch are a tactic to make him decide favorably on matters important to The Left. Bad writing? Maybe petty, maybe legitimate, but are liberals the only folks who’ve noticed? Hypocrite? That term is tossed around from all sides in all circumstances. Stolen seat? He didn’t steal it, but he is the beneficiary, and how is that even up for challenge? That’s a criticism that will stay with him for his entire tenure, for good or ill. Moreover, who could ever think these criticisms would compel any behavior on anyone besides, perhaps, the opposite of the intended behavior?

    Lastly, I don’t buy that tempering criticism or offering praise when due is particularly unique or worthy of comment except in a game of rhetoric. If somebody started mixing ADHD drugs in Trump’s Big Macs, and Trump began a sustained and focused effort to force congress into strengthening the social welfare system, I am certain we would see an uptick in approval of Trump by The Left. But such situational approval does not negate previous or future criticism of Trump.

    1. Many upvotes.

    2. Only a few liberals actually *know* how to manipulate conservatives – and even then it’s only the soft and squishy ones who are malleable.

      Actual manipulation needs to make a much more liberal (so to speak) use of flattery – “unlike the more ideologically-rigid justices, Justice K has shown a tendency toward pragmatism. He is aware of his importance as a swing Justice and takes that responsibility seriously. He does not automatically try to polarize the Court like Justice S. Therefore it is possible that in this case, Justice K will cast a moderate vote in favor of upholding precedent,” etc.

      1. Pshaw…it’s easy to manipulate conservatives.

        Just mention Hillary, immigration, the Confederacy, banning guns, or several other hot topics and watch the Pavlovian spittle fly!

        The Reichsministerium f?r Volksaufkl?rung und Propaganda (Ministry of Public Enlightenment and Propaganda, aka Fox News), uses this tactic all the time.

        1. Assuming that’s true (I’m not saying it is), it doesn’t tell us about the ability of *liberals* to manipulate conservatives.

          Again, a small handful of liberals know how to manipulate the soft conservatives – “ooh, you’re so much smarter and more open-minded than your colleagues! And your swing vote makes you *so* powerful! Heck, I bet you could set the tone of constitutional adjudication for years, and earn the respect of everyone who matters!” Of course, the liberal needs to be sufficiently high-placed as to be known as someone who can influence the conventional wisdom and help assure the target of the flattery his/her “place in history.”

          1. “Again, a small handful of liberals know how to manipulate the soft conservatives”

            The hard conservatives are even easier.

            “Sure, pizzagate is real! Them Democrats are all paedophiles!”

            “Trump is doing a great job; I love his foreign policy in the Middle East!”

            “The way to end discrimination is to stop discriminating; I don’t know why all those other people get so uppity and have to talk about their identity politics; back when I was growing up, people knew their place.”

            “Sure, grandpa, we will be there for Thanksgiving.”

            1. “The way to end discrimination is to stop discriminating; I don’t know why all those other people get so uppity and have to talk about their identity politics; back when I was growing up, people knew their place.”

              Interesting that you think these radically different statements mean the same thing.

              1. Interesting that you think they don’t.

                1. Perhaps you could explain how these statements are equivalent:

                  “The way to end discrimination is to stop discriminating”

                  “back when I was growing up, people knew their place.”

                  The latter statement – correct me if I’m wrong – seems to be an *endorsement* of discrimination, not a call to stop discriminating.

                  1. Well, that’s what happens when you want to “MAKE AMERICA GREAT AGAIN!” Because you look back to a time when things were great for, say, white straight men, and not so great for anyone else.

                    The first statement is so anodyne that it overlooks the fact that systemic discrimination has not been removed, root and branch, from our society, and the last two years have certainly proved that.

                    “The way to get to Mars, is to already be on Mars.” Thanks for that, Chief Justice Roberts. That you can’t see that the two statements (of aspiration and nostalgia) are used interchangeably by the same people to equivalently say, “Shut up,” is exactly why hard conservatives are so easy to manipulate.

                    Now, send in $5 to make sure that OBAMA and HILLARY can’t keep COLLEGE STUDENTS from GUTTING YOUR FIRST AND SECOND AMENDMENT RIGHTS!

                    1. I must say that the “conservative” positions you describe certainly seem wrong. And I’ll say the same to anyone who holds those opinions.

                      “systemic discrimination has not been removed, root and branch, from our society”

                      That’s a bit vague – what do you consider to be the scope of the problem and the appropriate means of remedying it?

                    2. “I must say that the “conservative” positions you describe certainly seem wrong. ”

                      No true conservatives.(tm)

                    3. I suppose you could always link to “true conservatives” taking the various positions you describe.

                    4. (Maybe he’ll take up my invitation later)

                    5. That’s a bit vague – what do you consider to be the scope of the problem and the appropriate means of remedying it?

                      1. Allow raced-based preferences at public institutions.
                      2. ???
                      3. Social Justice!!!

                    6. The first statement is so anodyne that it overlooks the fact that systemic discrimination has not been removed, root and branch, from our society, and the last two years have certainly proved that.

                      Explain how this contradicts the statement, “The way to end discrimination is to stop discriminatin”

                    7. “Explain how this contradicts the statement, “The way to end discrimination is to stop discriminatin””

                      1/ Let us use the following example. Imagine two people, A and B.

                      A starts with $200, B starts with $100.
                      There is a rule that every year, the person with more money get $100 more. The person with less money loses 50 cents.

                      After 100 years (they live a long time), A has $10,200. B has $50. Now, B is understandably upset. B finally gets the attention of a neutral party, J. J agrees that this is unfair, and says, “Okay. Neither of you get any additional money. Even steven.”

                      And whenever B complains about the current disparity, A says that it’s been handled; the way to stop worrying about, is just to stop. IOW, and this is important, even if these is no further discrimination in money transfers, simple freezing everything where it is entrenches the benefits of the past discrimination.

                    8. 2/ So I would agree that in a perfect world, there would be no discrimination of any kind. The trouble is, this argument is almost always advanced by those who either knowingly, or unknowingly, perpetuate systemic racism. When I say “unknowingly,” I mean that those are the individuals who remain blind to the entrenched advantages that they have, and advocate for continuing so-called race blind procedures that benefit them.

                      It is not an easy subject, because it is fraught. But the basic quality of life in so many ways is different if you are black in America than otherwise. From the experience in retail stores, to the likelihood of getting pulled over because you are driving the wrong car, or in the wrong area. More importantly, the same people that are arguing against it (here, elsewhere) are also the most resistant to effective action to cure the issues when it matters- K-12.

                    9. 3/ And I think this is nearly impossible for people here to discuss. I remember, way back in law school, having a conversation with a friend of mine about Affirmative Action, and he was truly incensed that someone “undeserving” would get a spot.

                      And I remember talking to him about his brother, and how his brother got busted several times for drugs, but got the adjudication withheld (family connections) and got into the law school despite sub-par LSAT/GPA (he got a great recommendation from a family friend/judge) … and he just couldn’t see it. He couldn’t see that those same life experiences that happened to someone less fortunate would mean the end of their dream. And how that closely correlates to race in America.

                      There used to be a strain in the GOP (call it the Kemp faction) that was interested in solving these sorts of problems through a capitalist/free market perspective. To give people true opportunities regardless of race, to get a leg up. Now it’s just a bunch of grifters feeding of the American polity.

                    10. lt’s not so much race as class. lf you have the right patrons, life is easy. White trash have it no easier than blacks, in many instances.

                      Posner had the ‘nads to say it in his hastily-crafted 99? exit interview: Pro se litigants are the dirty niggas of federal court.

                    11. I fail to see how race-based busing, or racial discrimination in college admissions, is supposed to remedy “experiences in retail stores”, or the “likelihood of getting pulled over because you are driving the wrong car, or in the wrong area”.

                    12. Of course you fail to see. That was the entire point of what I just wrote. You fail to see all the ways systemic racism warps the way things happen now, and the way the segregation and racism of the past created an unequal playing field, so that you can concentrate your ire on perceived imbalances that affect you.

                      In short, the chance that some black person, somewhere, is getting into a college is a terrible problem. But all the rest of it? You can’t be bothered to address it. I feel like I’ve already written enough to explain myself, and given how these conversations always go, it won’t make a difference, so either figure out what I was saying from my prior posts, or keep om truckin’.

                    13. Racial discrimination implicates equal protection. It can only be justified by satisfying strict scrutiny.

                      Discrimination in public education can not possibly address what happens in retail stores.

                    14. None of those things are direct remedies for the specific wrongs, but we are supposed to be afraid of liberal disdain because we dare to dissent from the structural (or intersectional for the trendiest) racism narrative that gives them carte blanche to propose any stupid policy as a remedy. Of course anyone can play the victimhood of my ancestors game and demand reparations. And they conveniently ignore the fact that self-inflicted social pathologies are far more important in causing blacks to lag behind in the so-called “race” of life (or what amounts to the same thing, attribute those social pathologies to structural racism despite the fact that they only began appearing at alarming rates as the era of legal segregation ended) and that the government social engineers have made matters worse. So probably the best course of action is for the social engineers to just sit there and do nothing.

                    15. Perseus, I’m a believer in systemic racism/bigotry being a continuing concern in modern society and worthy of policies to address it. But I’m not one who thinks everyone who disagrees with that is a racist.
                      I’d like to address some of the theses you put forth in your post.

                      Structural != intersectional. One is about how it’s invisibly built into society, the other is how you can’t separate out the effects of race/class/gender (which notably undercuts some of the reasoning behind race-based affirmative action).

                      Anyone can claim past victimhood. But comparing the brief period when people didn’t like the Irish to the black experience of slavery-jim crow-redlining-‘it’s a self-inflicted social pathology’ doesn’t wash.
                      Do blacks have some problems of their own? Sure. Does that mean society generally has no responsibility? It does not. Between how useful slavery was to making America great, how recently we had intentional bias operating against certain minorities, and the current structural issues (e.g. that Starbucks incident, driving while black, pay gap, etc), I think taking steps to address them isn’t some anti-white conspiracy (by mostly white liberals?)

                      The counterfactual of what would be if we didn’t have affirmative action, the Civil Rights Acts, integration in the military, and other social engineering efforts is hard to figure, and not a great argument either way, IMO. Except military integration – that’s pretty hard to argue against.

                    16. One of the great achievements of America’s liberal-libertarian alliance during my lifetime is that bigots no longer wish to be known as bigots, at least not publicly.

                      Today’s bigots have largely abandoned the common, casual intolerance I observed in the 1960s and ’70s. The modern American bigots limit themselves to complaining about persecution of straight white Christian males, to declaring themselves “colorblind,” and to claiming to protect “traditional values.”

                    17. loki, they aren’t so unaware. You can test it with this proposition. Just say you will bet them at 5-1 odds that you can walk into the maternity suite in any big city major hospital, and on sight reliably divide the identically-swaddled newborns lying in their cribs into 2 groups?one group with more family wealth than the other. See if you can get any takers.

                    18. It’s quite simple, really.

                      If you’re white, Asian or Jewish, you’ve been stealing money from black people for generations. The reason you don’t realize this is that you’re racist.

                      And you’re responsible for racist actions by cops and security guards. You don’t care about this because you’re racist.

                      Non-racist people know that the way to remedy these situations is preferential admissions at universities. There is no principled argument to be made against such policies. Anyone who advocates race-blind admissions is a racist.

                      It makes perfect sense, and if you can’t see immediately how much sense it makes, guess what that makes you? Hint: Rhymes with “may cyst.”

                    19. I find it odd that people in modern America expect stale thinking to prevail.

                      At a white, male blog (token female’s continued participation pending, although she is starting strong by defending America’s white males against persecution)), of course.

                      On the other hand, this involves people who genuinely wish to return to good old days that never existed.

                    20. Yes, stale thinking is bad. And don’t you hate people whose thinking is stale?

                      Being white and male is neither good nor bad – or do you disagree? Perhaps you’re a reverend in a denomination which believes in white-male-only-total-depravity.

                      (We all know that when Rev. Martin Luther King talked about judging people by the content of their character, not the color of their skin, he wasn’t speaking of the near future, or the lifetime of anyone we know, but of the indefinite future after social justice has been fully implemented.)

                      I wasn’t aware that a Web site could have a race, but maybe this is some kind of concept of race with which I was unfamiliar.

                      And we all know that too many white women are simply too close to white men – they even voted for Donald Trump – so don’t let white women off the hook with your talk about white males – white females are often no better than males themselves.

      2. Partisans are hard to manipulate out of their positions, especially by opposing partisans?
        That’s not exactly news.

        Of course, the right thinks the left manipulates super successfully via the Greenhouse effect, which is the only reason why so many Justices disappoint their very extreme and pure expectations.

        In a notable asymmetry, I’ve not seen as much on the left about conservatives secretly manipulating liberal justices. I’m sure some on here will say that’s because conservatives are such victims and nice guys they can’t make use of this. IMO it’s because no one is manipulating anyone but some on the right have trouble understanding the idea that people might disagree with them for reasonable motives.

        But also, you’re speaking to some thesis collateral to the post you’re replying to – dija see how OtisAH doesn’t think the purpose of the cited post was to manipulate?

        1. Just out of interest, what extreme positions do the principled moderate conservatives avoid taking?

        2. Once saw some liberals manipulate Hillary into a van.

    3. Whenever a judge has a dog in the hunt, s/he will never fail to pet it … but in this case, we got a straightforward take from NG. Vague laws invite abuse. There’s a long and straight line of cases. “We’ll rescue the statute if we can” … but when you have to ask, ‘WTF does that mean,’ the Court should tell lawmakers and rulemakers to go back and do it again.

  3. Why shouldn’t it work? After all, it worked with Roberts.

    1. Roberts is not a conservative. He sided with socialists on the court to force Americans to buy something and that is not only authorized by the Constitution, its unprecedented.

      The court only has Gorsuch, Thomas, and Alito even trying to defend the rule of law and the Constitution. The rest of those bureaucrats on the bench sway as the winds blow. The Constitution was only supposed to sway when it was heavy and popular winds via a constitutional amendment. Otherwise, the Constitution is fairly clear about how restricted government should be and how individual rights should be protected.

      1. Roberts is not a conservative

        Hahaha, YES! The purity is so pure!!

        1. He’s an Establishment Conservative. A endangered sub species known for being lukewarm.

          “Hahaha, YES! The purity is so pure!!”

          Don’t laugh.

          Cynthia Nixon in NY and DeLeon in California would like you to see the future of your side.

          1. Cherry picking dumb candidates is a fun partisan game. Shall I talk about the child molester, or the anti-Semite for the future of your party.

            You do see how you and loveconstitution have a pretty lopsided set of requirements for how easy it is to be liberal vs. how hard it is to stay conservative, right?

            1. “Cherry picking dumb candidates is a fun partisan game. ”

              Nixon is an example of the split in your party between “Clinton dems” and “Sanders dems” which is gaining a lot of momentum. Lets say the Tea Party in 2009.

              She is not a “dumb candidate” but an articulate champion of the more aggressive liberal approach. [She is not going to win but has sure scared Cuomo.]

              1. IF the coming liberal realignment happens while Trump is still in office, and IF they decide that resisting Trump matters more than procedure, then we can talk.

                But the fact that you have to meet an example of actual GOP action with speculative future Democratic action shows quite an asymmetry between the two parties on this issue.

            2. Conservatives don’t side with lefties on issues that undermine fundamental conservative values.
              Ever.

              Libertarians would never side with socialists to allow for us to hauled away and murdered.

              Lefties always try and make things so complicated so they can weasel in there and tear down freedom loving peoples.

              1. freedom loving peoples

                meaning conservatives and Republicans?

                (Homeschooling and downscale religious education — childhood indoctrination and the teaching of nonsense — have consequences.)

              2. Conservatives don’t side with lefties on issues that undermine fundamental conservative values.
                Ever.

                Void for vagueness.

                Libertarians would never side with socialists to allow for us to hauled away and murdered.
                Crazytown.

                Lefties always try and make things so complicated so they can weasel in there and tear down freedom loving peoples.
                ‘whenever things seem difficult, I blame liberals!’

              3. Conservatives don’t side with lefties on issues that undermine fundamental conservative values.

                Well of course not, because you have defined conservatives to be people who most consistently choose positions on the basis of how much liberals dislike them. It’s a tautology. But have you noticed that doing it that way leaves conservatives without any politics of their own to defend?

                1. Not really. A lot of cons are Talibani theocrats. They would throw gays off of buildings if they could.

            3. l don’t know why anyone would presume that Nixon is a dumb candidate. Fred Grandy (who played the imbecilic “Gopher” on Love Boat), Fred Thompson, and Al Franken all had serious intellectual chops.

              Paul Ryan, not so much.

      2. He sided with socialists on the court to force Americans to buy something and that is not only authorized by the Constitution, its unprecedented.

        ln 1792, a Congress that included 17 framers passed a law requiring nearly every “free able-bodied white male citizen” age 18 to 44, within six months, “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges,” along with balls and gunpowder. A rifle could be substituted. The purpose was to establish a uniform militia. http://www.politifact.com/rhod…..-mandated/

    2. And Stevens and Souter and Kennedy.

      It is a tried and true playbook.

  4. Public employee unions are one of the biggest threats to this country. Hopefully Gorsuch will vote the right way.

    1. “Public employee unions are one of the biggest threats to this country.”

      Woah. Let’s see. Biggest threats to our country!

      There’s foreign powers (China, Russia). There’s terrorism (foreign and domestic). There’s worsening race relations. There’s yet another example of the GOP deciding that concern about deficits only apply when the Democrats have the presidency (guess who will get to clean up the mess, again). There’s a grifter/con man in the Executive office. There’s nuclear proliferation issues in the middle east (Iran/Saudi Arabia) and real issues between India and Pakistan (who both have nukes). There’s the continuing beat of increasing inequality. There’s climate change, and resistance to antibiotics, and the economy, and health care …

      BUT THE PUBLIC SECTOR UNIONS!

      Good to know we have our priorities straight.

      1. Not an exaggeration. Don’t forget– public sector unions are largely responsible for the worsening race relations.

        Terrorism isn’t much of a threat. And deficits — I don’t suppose public sector unions have anything to do with that…

        But yes, when a large enough group of people are organized to increase the size of the public sector for its own sake, it becomes very difficult to solve other problems.

        1. ” And deficits — I don’t suppose public sector unions have anything to do with that…”

          As I’m sure you know, I was discussing the federal deficit. As I’m also sure you know, the majority of the federal deficit is spent on Net Interest (interest on our debt), Social Security, Medicare, and Medicaid. If you toss in Defense (!!!), well, you get the idea.

          If you’re blathering about state budgets, then I am quite sure you are familiar with the funding issues, and what happened with the last recession; moreover, I would love to see how you apply your inexorably logic to areas like teachers, which, as you might have noticed from the news recently, haven’t gotten a great deal.

          In short- you’ve swallowed the kool aid, and failed to do even basic research.

          1. “As I’m also sure you know, the majority of the federal deficit is spent on Net Interest (interest on our debt), Social Security, Medicare, and Medicaid. ”

            So public sector spending outside those areas makes up less than half of the budget? Don’t I feel silly.

            1. “So public sector spending outside those areas makes up less than half of the budget? Don’t I feel silly.”

              You shouldn’t feel silly, just stupid.

              Wages (incl. benefits) are 15% of discretionary spending (incl. civilian employees of the Defense Department, who make up 40% of that spending).

              So, that’s less than 6% of the budget, total, for all wages, benefits, health care, pensions. Now, not everyone in that category is unionized. And you’d have to try and tease out the difference in spending between what would occur with, and without, a union.

              But I’m sure you have thought about this deeply, as opposed to this just being your latest spoonfed cause du jour.

              1. “You shouldn’t feel silly, just stupid.”

                I never feel stupid when you’re in the thread, Loki.

                Why are you isolating wages? This makes no sense. Public sector unions don’t just lobby for increased wages, they lobby for increased public sector spending in general.

                1. “Why are you isolating wages? This makes no sense. Public sector unions don’t just lobby for increased wages, they lobby for increased public sector spending in general.”

                  Really, you want to tease this out at the Federal level? Go on. Explain to me, like I’m a dumb golden retriever (or you) how the NTEU lobbies for increased defense spending?

                  No?

                  Your lack of knowledge, in everything, is only eclipsed by your dogmatic desire to change the subject when it is pointed out.

                  1. I’m changing the subject? No, the subject is the same. The NTEU and other public sector unions lobby for increased public sector spending. This increases the deficit. I’m not sure why this is so hard for you, Loki.

                    1. “I’m changing the subject? No, the subject is the same. The NTEU and other public sector unions lobby for increased public sector spending. This increases the deficit. I’m not sure why this is so hard for you, Loki.”

                      It’s hard for me, because you’re an idiot that has conflated the talking points you’ve heard regarding STATE-level public unions with the discussion we are having regarding the FEDERAL deficit.

                      And this ties in to your original lack of knowledge regarding the federal deficit, where spending goes, and your statement that public sector unions are “one of the biggest threats to our country” which is one of the most offensive and stupid things I have heard recently that has not been said by our current President. Not to mention that … wait for it … eliminating EVERY SINGLE WAGE AND BENEFIT TO ALL CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT RIGHT NOW would have less effect on the deficit than getting rid of the recently-passed tax cuts.

                      Whatever, man. Greatest threat to our country is voters like you.

                      But sure, if you think

                    2. Wow, I was dubious until you called me an idiot and went all caps.

                      Again, you have to be pretty ignorant to think that the only thing public sector unions lobby for is wages. The FTEU, for example, lobbied for in increased non-defense spending in the recent spending bill.

                    3. “The FTEU, for example, lobbied for in increased non-defense spending in the recent spending bill.”

                      The FTEU? Do you mean the NTEU? The union I just talked about? The union whose interest and positions are clearly laid out on their website?

                      Whoosh. Truly pathetic. And, of course, no rejoinder to the obvious point that the most recent giveaway dwarfs the entire amount being paid to those individuals, which (again, this should be obvious) dwarfs the contributions, which, again, this should be obvious, dwarfs the amount spend in lobbying.

                      It’s not like actual facts will dissuade you from what you already know to be true- UNIONS ARE THE WORST, MAN! Like I wrote- you are the greatest threat to our country.

                    4. Yes, the union you just talked about. I made a typo.

                      “And, of course, no rejoinder to the obvious point that the most recent giveaway dwarfs the entire amount being paid to those individuals,”

                      I guess you’re illiterate, too. My rejoinder, several comments ago, was that the union lobbies for more spending that just wages and benefits for their members. Sorry Loki, you’re just too stupid to engage with. And obnoxious to boot.

                    5. ” Sorry Loki, you’re just too stupid to engage with. And obnoxious to boot.”

                      Gee, I’m sorry. Is it because I challenged you when you said that, and I quote-

                      “Public employee unions are one of the biggest threats to this country.”

                      Really? One of the biggest threats to our country? So your little feelies got hurt because I challenged you on your stupid and callous statement that inappropriately tarred millions of hardworking Americans as the biggest threats to our country, and, when given a chance to backpedal, you doubled down on it (“Terrorism isn’t much of a threat,” great- these Americans are a bigger threat to our country than North Korea and ISIS and Russia all rolled into one, amirite?).

                      Next time, I will have a trigger warning for you- Warning: will rebut stupid and offensive comment with facts. Try not to read or you might get your tender vittle all caught up in a bunch.

                      Be gone, unamerican Troll.

                    6. “Next time, I will have a trigger warning for you- Warning: will rebut stupid and offensive comment with facts.”

                      It’s precious that you think that that’s what you did. Unfortunately you are too stupid to know what facts are relevant.

                    7. “It’s precious that you think that that’s what you did. Unfortunately you are too stupid to know what facts are relevant.”

                      I’m sorry- I’m not the moron who didn’t know basic facts about the government.

                      Drama queen is too high praise for you, buddy. You wish you could aspire to that level. Incompetent googler after stupid & hysterical statement? That’s about the level you can reach. On a good day.

                    8. The NTEU and other public sector unions lobby for increased public sector spending. This increases the deficit.

                      No, it doesn’t increase the deficit. Not funding spending you have decided to make is what increases the deficit. You aren’t (at least not coherently) objecting to a union-founded cause of some deficit, because that doesn’t exist, any more than a Defense Department cause of the same deficit exists.

                  2. Worth noting the Federal employee pension is extralegal contrivance that from actuarial perspective for any other organization is illegally pilfered and bankrupt; i.e. current unfunded obligations (the whole thing) are covered by future taxes and the pension holds zero assets unless ‘non-marketable non-transferable Treasury securities’ with no counter party count as an ‘asset.’

                    When one looks beyond Federal exceptionalism like that, the pension situation in public sector is in rough shape. Illinois is, as a balance sheet anyways, dead already.

                    1. “When one looks beyond Federal exceptionalism like that, the pension situation in public sector is in rough shape. Illinois is, as a balance sheet anyways, dead already.”

                      Well, moving to the state-level issue, it’s actually a pretty interesting question from a lot of different perspectives. I happen to agree that the issue of pensions, both generally and specifically for state employees, is a difficult one. I think that certain states have the problem worse than other states; I also think that many states (and I know of one in particular) used the other states’ problems and the recent recession to slash pensions and benefits to their employees even though it wasn’t necessary. There are additional issues with funding (what is required by law, tricks used to make pensions appear to be funded when they aren’t, defined benefit v. defined contribution, medical issues vis a vis pensions).

                      Finally, there are specific, and notorious, examples of particular CBAs that have been used to game the pension system, through the use of advantageous lagnauge regarding DROP, overtime, highest pay, etc.- that’s where you get the occasional “$150k pension” horror stories. But it’s a topic that requires some nuanced discussion, and isn’t easily amenable to the whole partisan BS we are currently seeing.

            2. For federal 2017 TheBalance has these numbers:

              Total spending: 3,982 $billions

              Social security: 939
              Medicare: 591
              Medicaid: 375
              Interest on debt: 263
              Subtotal: 2,168

              so unless your contention is that “more than half the deficit” isn’t equivalent to “more than half the expenditure”, I’d say loki wins this round.

              1. The “more than half the deficit” comment was gibberish, but I’m interpreting Loki generously. But the notion that public sector spending outside of those three areas isn’t worth looking at because they make up a minority of the federal budget is idiotic.

                1. Your target was public sector unions and their responsibility for the deficit. To tie that to your current point about public sector spending you must believe that the unions control the spending, a thesis that I would have trouble crediting.

    2. You’re not prone to melodrama, so I know you’re sincere. But to mix metaphors, this is a pretty deep cut to go that hard to the paint on.
      As loki pointed out, even assuming your debt hawkery, this isn’t one of the main drivers. It is, however, one of the areas of cash flow towards Democratic causes. Which makes it quite a convenient threat to target.

      Also, too, I saw this and wonder what your take on it is; the stats are a bit above my ability to validate.

      1. Conservatives complaining about deficits are laughable. Come on, TIP. Have you looked at what the GOP has done, as opposed to its rhetoric?

        They’ve spent decades claiming, with no evidence, that more and more tax cuts – I think they are trying again – are the solution to all economic woes, and will pay for themselves as soon as….

        When it comes to the budget, the GOP is a gang of liars and con men, nothing more. Talk about threats to the country.

        1. They’re not conservatives. They are called RINOs or LINOs.

          1. I’m not sure who you are referring to. If it’s Republicans in Congress then they sure get a lot of support from conservatives, for themselves and their policies.

            Paul Ryan, beloved of the right, is one of the biggest deficit makers of recent times, right up with Bush II and Reagan.

      2. Sarcastr0: wants a take on the Mother Jones article.

        My own take is that the MJ article, while accurate, is a bit too sanguine. I’d contrast it with the following from Bloomberg.

    3. What a freakin’ drama queen.

    4. Public employee unions are one of the biggest threats to this country.

      This blog provides invaluable insights into the thinking of disaffected, cranky, easily frightened right-wingers.

  5. “…Abood, despite its unsound reasoning and the vagueness and illogic of the line it draws…”

    I’m wondering if his opinion in Sessions v. Dimaya offers a clue as to his thinking about unsound reasoning, vagueness, and illogic in laws. If so then I expect he would respond to Abbod in a similar fashion.

  6. Regarding the OP-

    While I agree with a great deal of it (especially how disappointed I have been in Gorsuch’s writing quality), I think the real issue is how he views the historical legitimacy of the Court as an institution.

    And I haven’t seen a lot of that. Maybe it will grow with time, maybe not. But I sincerely doubt that he is influenced by such factors as whether or not random people might think he is a clone of Justice Scalia.

  7. Whence this paranoia that the point of commenting on Supreme Court cases is to manipulate the Justices? I find it bizarre.

    1. “Whence this paranoia that the point of commenting on Supreme Court cases is to manipulate the Justices? I find it bizarre.”

      One might think that it would date back to a certain case, wherein there was this flood of commentary, some of it ON THIS VERY WEBSITE, that seemed calculated to sway particular justices.

      After the opinion was announced, of course, we found out that someone on the Supreme Court court leaked, and that certain people ON THIS VERY WEBSITE were aware of those leaks. But …. crickets. Weird, huh?

    2. I think that some journalists are confident enough in their own persuasiveness that they think certain Justices will pay heed to their articles.

      Which is why it’s a good thing the justices never worry about their media image, because they are simply statesmen and stateswomen making tough calls, not political actors at all.

      1. Eidde,

        Which is why it’s a good thing the justices never worry about their media image, because they are simply statesmen and stateswomen making tough calls, not political actors at all.

        I don’t think that at all. I’m sure many do think about it, which is the point of the post that Eugene quotes.

        But think that the reason journalists and bloggers comment on cases, or speculate on Justice’s motives, is that they think they have something worthwhile to say, or maybe because it’s their job to fill space. There is not some left-wing conspiracy to embarrass Justices, or manipulate them, by writing these articles.

        Sometimes a cigar is just a cigar.

        1. Sorry about that clumsy attempt at sarcasm on my part.

          1. I understood it as sarcasm. I was responding to what it implied, that I held that opinion.

            1. Again, I apologize, I was attempting a more general riff on the subject, not a comment on your position.

  8. “that’s not the way to his heart”

    Don’t cry now, professor.

    Calm down, please. Prof. Segall btw was on Twitter opposing the firing of Kevin Williamson, so even though he is one of the more red meat writers at “Dorf on Law,” he should have earned some karma points for some here.

  9. To the extent that the judicial process has become politicized, the left is entirely to blame. When you rule that “the right of the people to keep and bear arms shall not be infringed” allows a state to deny gun carry to those who don’t “need” the right while simultaneously ruling that “nor shall any state deprive any person of life, liberty, or property, without due process of law” prohibits a state from making it illegal to kill fetuses or insert one’s genitals into another man’s rear, you don’t have any credibility as a neutral arbiter of law.

    1. The judicial process was already thoroughly politicized by 1800. Look up “midnight judges.”

    2. Actually, it is those pesky 9/10Ams, applied to the States via the 14Am.

      The 5Am only protects the lives of “persons,” and in 1791/1868, “fetus” ? person. And where in COTUS do you find the power to keep a man from anally penetrating another willing adult?

      l guess that closeted types like you need laws to keep you from trying it yourself.

    3. I congratulate ARWP (The Man Of Many Names) for refraining from using “throbbing male member” in a comment for an extended period. It might be a year since we saw that phrase.

      Anyone offering odds on whether Actual Right Wing Patriot is the guy at 4:05-5:10 of this clip?

  10. Well said! Thank you, Professor Volokh.

    I wish that all federal judges were “self-respecting” in this way.

  11. Roberts, Stevens, Souter. Why is it seemingly only Justices picked by Republicans, at least in recent memory, that feel pangs of conscience and want to balance out the Court while every Justice picked by a Democrat is okay with voting partyline whenever and whereever?

    1. Clearly, it’s the blackmail. Not the purity you hold them to.

      1. It’s the unbearable pressure coming from liberal blogs.

        1. I heard that it’s the excellent cocktails.

          As we all know, the cocktail parties in Georgetown is what always gets them. And the liberals have the best cocktail parties, because we have teh gayz, and teh gayz make the best cocktails. You know, the ones that, um, drain good Republicans of their purity and essence of their natural fluids.

          Except Thomas. He only goes to NASCAR-sanctioned events.

          1. I was wondering how he managed to stay strong!

            Surely conservatives don’t believe it’s on the basis of his own convictions.

            1. As a good family man, he must stay strong.

              If he wavers, his wife’s extended payday could be over.

  12. Only an idiot would think that one should say that 1+1=3 merely to demonstrate one’s independence and individuality. So being a clone of Justice Scalia should be regarded as high praise.

    Liberals, of course, don’t complain about liberal justices voting in lockstep and would go nuclear if a liberal justice voted otherwise on one of their many litmus tests. They even tried to pressure RBG to retire in order to keep the seat. Only a rainbow of colors, not beliefs, is allowed.

    1. Liberal justices don’t vote in lockstep though.

  13. Lots of people rationalizing sociopathy as the only rational moral system in this thread.

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