Supreme Court

Politico Symposium on Kavanaugh's Confirmation

I have a contribution in it, along with a variety of prominent legal scholars and commentators.

|The Volokh Conspiracy |

Earlier today, Politico posted a symposium on the confirmation of Brett Kavanaugh, whether he is now "damaged goods," and what this development portends for the future of the Supreme Court. Contributors include legal scholars and commentators from across the political spectrum, including Deborah Rhode, Reva Siegel, Sanford Levinson, Ilya Shapiro, Volokh Conspiracy co-blogger Eugene Kontorovich, and myself, among others. Here is an excerpt from my contribution:

It is difficult to remember now. But when he was nominated in July, Judge Kavanaugh was a respected pillar of the legal establishment, held in high regard by many liberal legal elites, as well as conservatives. The sexual assault accusations against Kavanaugh fundamentally changed his image.

We may never really know whether the accusations have any validity…..

Kavanaugh may be on the court for many years, during which time perceptions could change. But it will be difficult him to escape the shadow of Christine Blasey Ford's accusation.

Even more important than Kavanaugh's future is that of the Supreme Court as an institution. Public approval of the court has bounced back from previous events that many pundits thought would generate a devastating backlash. Perhaps history will repeat itself.

But the deeply divisive Kavanaugh confirmation comes on the heels of other developments that have generated immense anger among Democrats, most notably the GOP's refusal to consider President Obama's nomination of Merrick Garland. Even before the Ford accusation, some progressives advocated radical measures to retake control of the Supreme Court, such as "court packing." These ideas are likely to gain momentum now….

I opposed both liberal court-packing plans and that proposed by prominent conservatives last year. But, right now, it doesn't really matter what I think. What matters is that progressives increasingly believe that court-packing and similar measures are justified payback for the misdeeds of the right. That perception may lead them to take drastic action as soon as they next control both Congress and the White House. The right would then surely escalate further the next chance they get, potentially gutting judicial review…

Can the conservative majority on the court do anything to forestall the dynamic of escalation? It is hard to say….

The conservative justices should also consider taking more cases where legal rules favored by conservative jurists translate into policy outcomes attractive to liberals. Such cases are more common than many think, arising on issues ranging from sanctuary cities to criminal justice, among others. The more the justices can show they really are the impartial "umpires" they claim to be rather than foot soldiers in Team Red's war against Team Blue, the better their odds of avoiding a legitimacy crisis.

NEXT: NPR Segment on Judge Kavanaugh's Judicial Temperament

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  1. The Senate taking its fully 100% legal prerogative and giving in but not enough (by which they mean entirely) to a baseless accusation when they have all the legal power is ‘escalating’ the situation. And we’re ‘getting what’s coming to us’ essentially. Speaking of victim blaming.

    1. O, I’m sorry, I didn’t realise you objected to victim blaming.

      1. Oh, so you’re an asshole. That’s why you posted that, right? Because you wanted to make it clear you’re an asshole? Because otherwise, you would have realized that, so…

        1. (yes, i’m sorry. I should have admitted the possibility that the accomplished international lawyer is a gibbering idiot, but that seemed so outlandish, why bring it up? Still, it is an alternative possibility)

          1. So if I’m ever unsure of your meaning, now I can at least eliminate sarcasm, in light of your apparent belief that sarcasm is the mark of an asshole.

            Good to know.

  2. I’ve already heard a large group of Trump supporters praise him for being “the quickest president to have two confirmed justices.” When I called them on it, a man in his mid-forties tried to walk back his statement by saying he meant “in recent history.” I replied that Obama also “beat” Trump to it. He called me a liar and stormed out!

    The most surprising part of that story? Not when I was called a liar. Not when the gentleman rudely left. No, that is rather common today. What really left me speechless for a few seconds was that someone my age said the Clinton Administration isn’t recent history.

    1. I’m speechless when conservatives say Jim Crow isn’t recent history. I suggest that before anything becomes not-recent history, everyone involved has to be at least 3 generations dead?meaning you add one typical life span to the span of 3 generations?and even that doesn’t seem to work for the Civil War. Ever notice how its historical shadow is so much more with us than, for instance the shadow of WW I?

      1. I wrote a senior seminar paper on the many visions of emancipation in the United States versus what happened. Most people know that the Founding Fathers believed slavery would naturally phase out while they feared an uprising if slavery ended instantly. What doesn’t get talked about is that the Founders also had altruistic reasons for ending slavery over time. Pennsylvania, New Hampshire, Connecticut, Rhode Island, New York gradually abolished slavery before 1800. The majorities in those states thought the transitional period was necessary for the blacks to “improve their condition” in life. Without that time, the Founders thought that the would-be-former slaves would be stuck in a multi-generational quagmire that would be all but impossible to escape.

        Some of the southern states considered the notion, but talk of emancipation ended with the mechanization of agriculture and the slave importation ban. We all know that it took a costly civil war to end slavery and, even then, not much improved for the former slaves for a long time.

        This sets up an interesting alternative history: what could have happened if the South followed the North’s lead in gradually freeing its slaves? Would things be better for blacks now? Would we have a politician saying?right or wrong?that blacks swapped one plantation [actual slavery] for reliance on another [government welfare programs]? Certainly makes an inquisitive person wonder . . .

        1. Probably we’d be pretty much where we are now. From a goal oriented perspective with no concern for timeline, its likely the Civil war was unnecessary. Traditional slavery was done for probably sooner rather than later with all the technological and societal shifts. Certain Greek states and the Romans were bigtime slavers and eventually forced out of it without the need for Grants or Underground Railroads or activists, or the egalitarian mentality we have now. Course you could argue if some of the successor classes were better off but thats a whole story of its own.

          If we never had ‘black’ slavery in the first place like liberals and ironically certain white nationalists wish due to the thinking that we wouldn’t have as high a population we’d likely be more of a European style society, whiter, more liberal, more stagnant, and in the process of mass importing Africans in anyway right about now to make up for the ones we didn’t import before. So yeah, pretty much a tendency toward the same equilibrium.

          1. I probably should add ‘for the purposes of emancipating slaves’ to ‘the Civil war was unnecessary.

      2. The average age in the United States is 37 years old.
        Jim Crow mostly ended in the 60s – call it 1965. That was 53 years ago.

        I don’t think it is unreasonable for an average person to consider something that happened a decade and more before their birth as “not recent”.
        Older events may be more significant, but that has nothing to do with how recent they are.

        1. Toranth, I meant only to refer to recency in historical context. What an average person might consider in some other context is a different subject.

          The basis for my 3 generations plus one lifespan rule is a bit arbitrary, but I think it makes intuitive sense. Until that much time has passed, many folks whose immediate life experience was affected in some memorable way, as participants in, or bystanders to, an historical event will still be around. It is commonplace for grandparents to relate directly to grandchildren, to help raise them, culture them, and to affect the grandchildrens’ sense that they have known the past from an eyewitness. All of that, taken together, properly belongs to the account of the historical event itself, which doesn’t really end its direct influence until those living recollections play out.

          Also, historical scholarship works better when it relies on written records. But so long as descendants with living memories of historical events are alive, they tend to hoard whatever records they possess.

          And at that, it can be quite amazing at what chronological distance inherited recollections can be transmitted, quite often together with written records. I was born in 1946. Until he died, a friend of mine, who was my age to the day, had from his father accounts of boyhood life handed down from my friend’s grandfather?a man who was born in the year 1826, the year Thomas Jefferson and John Adams died.

          1. First three generations plus one is four. Just say four. Did you add plus one because it has been three generations given 20-30 is the usual metric for generation?

        2. I agree. I’m old enough to remember bias ply tires and rotary dial phones. In fact, I still have a rotary dial phone and from time to time I use it, just for kicks. But I sure wouldn’t describe rotary dial phones as ‘recent developments in telecommunications technology’.

          Context matters. One can surely say that democracy has only recently become wide spread, because it was pretty rare between early Rome and 1776. Likewise, one can say that mammals have only recently evolved, or that floppy disks are ancient technology. There is room for a lot of squish.

          Insisting that an event that happened before a majority of Americans were born can only be characterized as ‘recent’ is pretty silly. One can’t expect other generations to only view the world through your own generational lens. Like most people my age, I remember breathlessly watching Neil Armstrong climb down the ladder – but to the neighborhood kids Neil Armstrong is in the same class of ancient history as Charles Lindbergh was to me. That makes sense – the moon landing was 49 years ago, in 1969. At that time Lindbergh’s flight was only 42 years in the past.

          1. Sadly, this also leads people to forget the lessons of history.

            Just last year, students of color demanded segregation.

            Link

            At AU, African-American and other students demanded a “sanctuary space” be established for minority students at a campus cafeteria; a policy granting extensions for final exams to minority students; and an open-door policy for outside groups such as the NAACP to investigate hate crimes and racial incidents at the university.

            But what was inexcusable was for the Washington Post editorial board to call this a smart, proactive agenda.

            1. That’s not segregation; that is special treatment. They wanted their own space while still having access to the communal spaces shared with whites and other races.

              1. Of course, if special treatment on the basis of race is normalized again…

          2. One can’t expect other generations to only view the world through your own generational lens.

            Actually, the custom among historians is to encourage today’s generations to view a particular generation in the past through its own generational lens?and not at all through today’s generational lenses. Other approaches are possible, but almost always, they lead to mistaken notions about the historical record, and what is to be found there.

            Of course none of that matters if your interest in the past is to ransack it for a cite in support of some present-minded notion. And surely there are many more folks motivated that way than there are historians. So if what you want is agreement, stick with the approach that gives you better odds. That and enough energy will assure you are almost never disappointed.

            1. Can you say more about how viewing history through historical generational lenses informs us whether 1953 is recent or not, since that is what we’re discussing?

              Viewing 1953 thru a 1953 lens will make 1953 seem contemporaneous, just as viewing 1066 through 1066 lenses will make 1066 seem contemporaneous. But surely everything can’t be in the present forever; eventually every point in time passes out of recency. You have your definition of when that happens, which is one reasonable definition, but ‘long before I was born’ also seems like a definition reasonable people might adopt. And for a majority of Americans, ‘before I was born’ describes 1953.

              1. “Long before I was born,” might indeed seem a reasonable definition to reasonable people, invoking as they are whatever standard of reason suits them. Almost invariably, their reasonable aims are elsewhere than history. Indeed, few if any of those sorts will be minded to invoke a standard of reason which suits accurate historical scholarship.

                Remarks to show why that is so, and why it matters, have previously been laid down far better than I can do it, and at greater length than is available here. I refer you to an essay by Michael Oakeshott, titled, “The activity of being an historian.”

                I haven’t found an online link. Amazon will sell you at a bargain price Oakeshott’s superb essay collection, Rationalism in politics and other essays, which numbers the historical essay among its features.

                That book of essays is one which neither Marxists nor Libertarians ought to take up without being prepared to put down their ideologies. If you like a challenge . . .

                1. “”Long before I was born,” might indeed seem a reasonable definition to reasonable people, invoking as they are whatever standard of reason suits them. Almost invariably, their reasonable aims are elsewhere than history. ”

                  Oh, blather. Middle aged people thinking that that things from before they were born aren’t ‘recent’ is, I dare say, the normal human condition. You err in assuming everything has a political valence; there isn’t a valence to Neil Armstrong and Lucky Lindbergh; there is just basic human nature.

            2. Yet another sub-thread by Stephen “I never claimed to be a historian ” setting us straight on how real historians work and think.

              1. Smooth, thank you for acknowledging that I don’t claim to be a historian. It’s a step in the right direction, but still too peevish as you express it.

                As a young adult, having commenced study to become an historian (which in the end I did not do), I was fortunate to receive several years’ tutelage (undergraduate and graduate) from some of the best. It was sufficient training to set straight commonplace errors which characterize the kind of “historical” commentary found on these threads, and indeed, more than sufficient.

                For insight adequate to follow historical critiques needed here, you could inform yourself more easily than I did (only part of my study focused on methods of historical scholarship). Do as I suggested, and read Oakeshott’s essay, titled, “The activity of being an historian.”

                Coming to that essay as you will, with no notion of the subject, your first insight will probably be experienced as bafflement. If so, that will be partly you, and partly Oakeshott. On first impression, Oakeshott (on anything) writes in a style most folks find imposing. Read it slowly, twice more, and you will probably get it. It’s worth trying. Oakeshott had insight to improve the critical thinking of almost anyone. You might even read some of his other stuff, and end up wondering if previous habits of thought had served you adequately.

              2. At such length too!

      3. You might want to spend some time figuring out what “recent history” means to people, or realizing how old you are. Not sure which is the problem here.

        1. I well know what “recent history” means to “people.” It means, practical, everyday, present-minded experience. That kind of experience ought to be valued higher than it tends to be. In political thinking, especially, it is almost always a better guide than any kind of theory. But that doesn’t address what you call, “the problem here.”

          The problem here?or at least the problem I address?is that practical, present-minded experience not only has nothing to do with history, it can’t be used as a lens to view history. Try that, and you end up with mistaken notions about history every time.

          The reason for those mistakes is easy to illustrate. Please predict accurately which of anyone’s practical experiences today will determine, or justify, or pre-shadow, or even deliver insight, regarding policies, causes, effects, or opinions one hundred years hence. It can’t be done. Not even a little. The obstacle: everything which happens at that time will be far more the product of occurrences during future intervening years than of anything done today. And about those future occurrences we know nothing.

          That unbridgeable disconnection between us and our future must be recognized alike as an identical disconnection between the past and the present. The commonplace failure to understand that aspect of the past is the problem here. The unbridgeable disconnection of the past from the present is what must first be acknowledged, before insight into the past can be attempted.

      4. It’s true. Democrats are still a party. They still seek ways yo use race as a means to political power. The power seeking that led to Jim crow is alive well in victims studies now. Democrats are successfully causing races to self segregate which was the original intention of Jim crow anyways. Congrats Democrats.

      5. I’m speechless when conservatives say Jim Crow isn’t recent history.

        Why should conservatives spend a moment concerning themselves with evil Democrat laws that Republicans stopped?

    2. Made up stories are fun. Do another.

  3. >”The conservative justices should also consider taking more cases where legal rules favored by conservative jurists translate into policy outcomes attractive to liberals.”

    While there are no rules that compel the Court to hear certain appellate cases, is there any logic to how the justices select their appellate cases? I searched for law review articles on the question, but I have not had much success. The attorneys I know give me four general responses: they pick the appellate cases with the most interesting legal questions, the most common disagreements, the most common conflict of laws, and the most negative impact on the appellant. It seems to me that?whatever their methodology?many key issues are routinely avoided such as gerrymandering and gun control.

    I’m not sure why this even matters recently. Even when the justices do select certain cases, they avoid substantive issues (Masterpiece Cakeshop v. Colorado Civil Rights Commission) or contort the law to make sure that the government wins (National Federation of Independent Business v. Sebelius).

  4. You are suggesting that the Supreme Court do what they did when last court packing was threatened by FDR: capitulate with unconstitutional laws that made up the “New Deal”. They kept a ‘neutral court’ for a generation and we got an unsustainable entitlement program that has lasted several generations, and counting. You could also draw a straight line from the justifications of New Deal programs to the vast expansion of the Welfare State under the ‘Great Society’.

    Had FDR packed the court, who knows what would have happened. He may have done so and the same history would have occurred, or he may have backed down after acknowledging the political risks. Or he may have done it anyway and set off a chain of events culminating with a loss of popularity and electoral defeat. That the Court didn’t guard its own independence created, I believe, the worst outcome: it sanctioned the vast expansion of the powers of the State that had no charter within the Constitution.

    1. Ilya is putting on his best impression of the finger wagging adult that scolds both the bully and the victim to both admit their faults.

      1. And in doing so he’s validating Democratic gaslighting by focusing on the flaws of the victim instead of condemning the abuse that lead up to the error.

        1. O, I’m sorry, I didn’t realise you had a problem with gaslighting.

          1. One thing the Kavanaugh issue revealed is that Republicans take abuse seriously, Democrats do not.

    2. . . . an unsustainable entitlement program that has lasted several generations, and counting.

      Brightly, as it is, that is mildly amusing. Add that all it would take to make the program permanently sustainable is to tax all income alike for Social Security purposes, and you would have genuine irony.

      1. Governments can, of course, “sustain” a Ponzi scheme indefinitely, because they can make it illegal to opt out. But the levels of taxation necessary to sustain Social Security given current fertility rates are probably politically unsustainable, (Which is why it’s running massive deficits.) even if it theory government has the power to impose them. Replacing the children who don’t get born to Americans with imported foreigners who have no connections to the beneficiaries only makes the problem worse.

        1. Social Security is no different than any other spending program. It is “sustainable” as long as there is the political will to make the payments.

        2. >”Governments can, of course, “sustain” a Ponzi scheme indefinitely, because they can make it illegal to opt out.”
          Don’t forget that the government can print its own currency too.

          >”Replacing the children who don’t get born to Americans with imported foreigners who have no connections to the beneficiaries only makes the problem worse.”
          You don’t know how Social Security works.

          1. I pay a lot of attention to how Social Security works, in as much as I’ll be on it soon. You’re probably complaining because I pay more attention to how it DOES work, than how they’d like people to think it works.

            Money comes in, and when they were running a surplus was immediately spent, with the issuance of special federal bonds. Basically it was like claiming that you were saving for a rainy day, but you just spent all your money immediately, and saved IOUs to yourself.

            They didn’t even use the incoming revenue to reduce the deficit, which might have put the government in a better position to borrow when the cash flow went negative. They just used it to finance more deficit spending.

            1. They didn’t even use the incoming revenue to reduce the deficit, which might have put the government in a better position to borrow when the cash flow went negative.

              Lock box! Where is President Gore when we need him.

      2. “Add that all it would take to make the program permanently sustainable is to tax all income alike for Social Security purposes,”

        You don’t even have to do that. Just keep taxes as they are, but call all taxes “Social Security Taxes”.

      3. Add that all it would take to make the program permanently sustainable is to tax all income alike for Social Security purposes, and you would have genuine irony.

        The problem with entitlement programs of this type is that people are all for them as long as somebody else foots the bill. People are willing to hide their heads in the sand and ignore massive deficits in order to avoid paying for these things out of their own pockets. That, and demographic shifts, are what make such programs unsustainable.

        When Social Security started we had people receiving benefits who had never paid in. Today we have the other end of that ? people paying in who will never receive benefits. Such a program should be structured with people having an ownership interest in the fund that they paid into.

        1. For pretty much everything, swood, somebody else will have to foot the bill. In an economy where the majority have no money to spare, the moral notion that the bill can be footed alike, among all payers, becomes practical stupidity.

          If government requires money, it has to get it from people who have money. In an economy featuring enormously skewed wealth and income, that means, for almost everyone, it is someone else who has to pay. The morally adequate counter-argument is to unskew wealth and income?not to propose starvation of government down to a level characterized by plutocratic control of everything.

          But accepting things as they are, so long as wealth and income are to be enormously skewed, programs to (somewhat) soak the rich to foot the bill will prove not merely sustainable, but adequately popular among the soakees. They will judge their level of luxury, stability, and control to be well worth paying for?at a price no more costly than permanent dampness, they will count it a bargain.

          1. The problem is that the rich aren’t rich enough to finance all the schemes, like the cost of Medicare for all. And socialism, which you seem to prefer, has never worked anywhere. In the last century capitalism has removed billions from poverty.

          2. In an economy where the majority have no money to spare

            🙂 The majority of Americans are ludicrously wealthy compared to pretty much everyone else on the planet, and compared to their parents at a comparable age. Who in turn were ludicrously wealthy compared to their own parents.

            The reason that most Americans “have no money to spare” is that they’ve already spent it, and a bit more on credit cards.

            The culture of entitlement programs and easy credit, if it has not quite yet destroyed the Protestant work ethic, has certainly destroyed the Protestant savings ethic. The majority of Americans have “no money to spare” and would still have no money to spare if their incomes were doubled, because they do not choose to save. The majority having no savings has nothing to do with the rich being even richer than they were forty or sixrty or eighty years ago.

      4. But this would be predicated on breaking through Hauser’s axiom.

      5. Stephen is bad at math. Taxing all income doesn’t save the program, it just delays the end date. It doesn’t change the number of workers per retired person. Just admit you hate math Stephen.

    3. I can’t see court packing drastically accelerating or expanding New Deal changes, but I can see us sitting here instead of discussing a soft 5-4 conservative majority becoming much firmer into…discussing a soft 9-8 majority turning into a firm 9-8 majority.

  5. What we need is a grand bargain between left and right on the supreme court: The Right concedes abortion on demand, at least up to 20 weeks; The left concedes guns on demand, at least to non felons, and no machine guns or hand grenades.

    1. Grand bargains require trust that the terms would actually be fulfilled, or at least an alternative that’s awful enough that even a moment’s respite followed by betrayal seems an improvement.

      Neither requirement if present. The left still dreams of inevitable demographic victory fueled by illegal immigration, viewing the election of Trump, and a Republican Congress, as a temporary glitch, which sooner or later will go away, and then they can seize power and, by any means necessary, never, ever relinquish it.

      While the right sees that they have most state legislatures and governorships, that Democrats have handicapped themselves by concentrating more and more on gaining the total loyalty of a smaller part of the country, and fully expect that they will soon have a 6-3 majority on the Court, unless RBG really is immortal.

      So neither side sees the alternative to a grand bargain as ultimate defeat.

      Nor is there any trust present, especially now. Democrats view every Republicans as literally Hitler, and Republicans see a foe which just explicitly rejected the idea of the presumption of innocence, and not so long ago tried to gun down the Republican House caucus.

      No, it’s going to have to get a lot worse before there will be any thoughts of “grand bargains”.

      And, anyway, we’ve got a “grand bargain” called the Constitution, and the left conspicuously rejects following it, so what’s the point?

    2. Under your paradigm, the left isn’t actually conceding anything. Current federal and state laws allow any non-felon to own “guns on demand” which is reinforced by the Heller and MacDonald decisions. (By “on demand,” I infer that you mean “without a specific valid reason for ownership.” I don’t really think you mean cash-and-carry ownership.) In fact, the left would be taking something from that deal. If you can legally purchase a regular firearm, you can legally own “machine guns [and] hand grenades” provided you can afford the item, pay the tax, fill out the paperwork, and wait a year. You would remove the public’s ability to do that.

      A better compromise would be:

      ? The left concedes assault weapons and normal magazines.
      ? The right concedes a maximum waiting period of one week per gun and one gun per type each month.

      ? The left concedes abortion after the second trimester and greater funding for alternatives such as adoption placement.
      ? The right concedes abortion before the third trimester. (Some women don’t even realize that they are pregnant until they are in their second trimester.)

      ? The left concedes that abortion clinics should have better medical standards.
      ? The right concedes funding to prevent some areas from not having access to abortion.

      1. That still faces the fundamental asymmetry of treating a right that is explicitly mentioned in the Constitution the same as a ‘right’ judges pulled out of their asses.

        1. Which “right” is that?

          1. The right to vacuum out of a baby’s brain because and the right to stick one’s penis into another man’s butt.

            1. Are you aware that gay sex is irrelevant to the topic you were responding to? Or is your obsession with gay sex so bottomless that you don’t even know any more when you’re reflexively repeating your buttsex mantra for the gazillionth time?

              Hey, are you the guy in this article?

              1. Are you aware that gay sex is irrelevant to the topic

                Sex is the definition of Gay. Its impossible to talk about Gay without the sex part.

      2. What exactly is the purpose of the “one week per gun” and “one gun per type each month?” Absolutely nothing. In a perfect world, I’d actually support a more in depth background check, but once passed, that person would have the right to buy whatever he wants, and to carry wherever he wants, in every place, through federal preemption. The NFA registry would be reopened to post 1986 guns, and the $200 tax eliminated (if you can’t charge $5 for a photo ID to ensure that Democrats voting for their food stamps are who they say they are, you can’t charge $200 to exercise an enumerated right).

        1. I don’t see any basis for a constitutional right being subject to a background check before you exercise it.

          And I’m particularly uneasy about the idea of selectively depriving people of this or that right. I can see why the left wants as many people around who can vote, but don’t have to care about gun control because they can’t legally own guns anyway. But why should we cooperate with this?

          Restore all rights, or none. No second class citizens with the vote.

          1. I’m a little confused by your second paragraph. What do you mean by that?

            As for the background check, as long as society takes the position that certain dangerous people are allowed to roam free, I don’t see a good alternative. In my ideal system, if you were too dangerous to own a gun, you’re too dangerous to be outside of a prison or mental hospital.

            1. Felons are disqualified from firearms ownership, but there’s currently a big push on to relieve felons of their disqualification from voting.

              In principle I agree that, once you finish your sentence, you should be restored to your full rights. But restoring the right to vote, while continuing the denial of the right to keep and bear arms, just creates a population of people who can’t vote, but who have nothing to lose from gun control. And so is intended to make gun control more politically viable.

              Background checks as they are currently constituted aren’t needed, they were intended as a choke point where gun purchases could be conveniently blocked. We got by without them for generations.

              1. I’d be a lot more on board with the NICS checks if we prosecuted people who attempted to buy one knowing they were prohibited. As is, it’s a complete waste of time.

                1. Many of the people that fail NICS checks did so unwittingly, at least in that they didn’t know they were a prohibited person due to some old domestic violence charge and they don’t know about the Laughtenberg Amendment. The Justice Dept. has bigger fish to fry, and the bad guys get their girlfriends to get the guns for them anyway.

      3. Why should you have to wait a week to buy a gun if you are already a vetted gun owner?

        1. The vetting process only determines if someone is qualified to purchase a weapon at the time of vetting. Unless we invest in precogs, it can’t predict if someone will be vetted for a full X year term.

    3. The right should throw in the death penalty, which bankrupts most small jurisdictions anyway, in exchange for moving the line down to 13 weeks.

      1. >”The right should throw in the death penalty, which bankrupts most small jurisdictions anyway . . .”
        After some Google-Fu, I think you are talking about this. However, there is a major problem with this logic: the issue isn’t the death penalty but rather a lengthy appeals process. Any case can provide a lengthy court battle. That’s why it’s incumbent on the police, prosecution, and trial judges to err on the side of caution in protecting the rights of the accused. Most of the time, protracted cases exist because one of the three above did something in the gray area.

        #2. Many jurisdictions don’t seek the death penalty because they don’t want the case to be appealed.
        >”. . . in exchange for moving the line down to 13 weeks.”
        Many women aren’t even aware that they are pregnant at 13 weeks. Moving the goalpost will in some ases remove a woman’s right to choose.

        1. Re: the death penalty
          I wasn’t “talking about” anything–other 28 yrs practice, including being a prosecutor and defense atty–mostly in smaller counties.
          As far as the 13 week line:
          Whatever. If you want to have sex, you need to take responsibility at some point.

  6. “But when he was nominated in July, Judge Kavanaugh was a respected pillar of the legal establishment, held in high regard by many liberal legal elites, as well as conservatives.”

    Christine Ford’s memories did not suddenly appear 16 Sep 2018. Early Jul 2018 Ford contacted WaPo and Rep Anna Esho. Late in Jul Esho forwarded Ford’s allegations to Sen Dianne Feinstein who sent them to FBI who redacted Ford’s name and sent them to the White House who sent them to the Senate Judiciary Committee.

    Through late Jul, Aug, and into early Sep no public action on these allegations was taken by Feinstein, the FBI, the White House or the Senate Judiciary Committee.?

    When it seemed questions raised on his positions on gun control or Roe v Wade were not enough to derail Kavanaugh’s nomination, 16 Sep Ford publicly alleged Kavanaugh attempted to rape her in 1982 and put her in fear of her life and Feinstein called for an FBI investigation before a vote on Kavanaugh.

    The left opposed Kavanaugh because of his positions on Constitutional issues and his judicial history. When that was not enough to derail the nomination, they kickstarted a campaign based on a 36 year-old accusation lacking in corroborating witnesses and with no other evidence than the memories of the one witness Ford herself. Ford named Leland Keyser, Mark Judge and P.J. Smyth as present at the 1982 party: they all denied memory of the party she described.

    1. “Christine Ford’s memories did not suddenly appear 16 Sep 2018.”

      But there does seem to be some evidence that they appeared sometime in the range of 2005-2012,

      “Ford named Leland Keyser, Mark Judge and P.J. Smyth as present at the 1982 party: they all denied memory of the party she described.”

      Keyser went a bit further than that, she denied having ever met Kavanaugh under any circumstances.

      1. But there does seem to be some evidence that they appeared sometime in the range of 2005-2012

        There’s no evidence that has been made public, independent of Dr Ford and her husband’s claims. I believe that one or two newspapers have claimed to have seen some analyst report, or a summary of such a report, but that’s…..a claim by a newspaper. Which is worth squat.

        We’ve heard a lot of stories about pre 2018 evidence, but the evidence itself has not been forthcoming.
        If there were evidence, and if it did support her story, it would have been forthcoming. Since it has not been forthcoming, it doesn’t support her story, or it doesn’t exist, or is a poor forgery that cannot bear the glare of sunlight.

        This whole story has been based on reports in newspapers which vanish into nothingness when actual evidence is called for.

        1. Except for her story about why she went to therapy about the assault is utter bullshit. She never needed 2 front doors. They were renting out the unit with the second door, it was never an escape. The original person to rent this was a psychologist. Without Ford’s notes we don’t know if the original accusation was made as a means to evade local zoning ordinances. Also Ford’s beach house only has one entrance. Kind of deflates her entire excuse. If the base premise of her psychiatry visit is bullshit probably all of it is. And before you ask why would she come forward… zealotry and the million in a GoFundMe would motivate a lot of people.

      2. Keyser went a bit further than that, she denied having ever met Kavanaugh under any circumstances.

        And Ford’s lawyers tried to get her to change her testimony.

        I guess that somehow doesn’t qualify as witness tampering.

        1. An ex-FBI friend of Ford’s tried to pressure Keyser into changing her story.

  7. The whole concept offered, and the tweeks offered to the concept ,ignore Democrats never operate in good faith. Kavanaugh is just the latest example. Kavanaugh is estatablishment Republican. If he weren’t a Judge, he is a never Trumper. Centrist Republican Squish. Democrats Assassination of his character, career, and life in general. Democrats planned attack, for no reason other than political gamesmanship they horribly mis -calculated,might shade him more to a conservative that understands, appeasement never works.
    Here’s an easy way to make the court less political. Stop taking cases that are not the jurisdiction of the Federal Government. Like, abortion. Or marriage. Also, ignore those cases that require debate and resolution, by the people representatives, not a wave of the magic wand, from 5 unlected black robed Oracles.
    John Roberts observation hold here also. ‘the only way to make the court appear non-political, is for the court to stop acting political.’

    1. Democrats never operate in good faith.

      Republicans are backward and bigoted, concentrated in the can’t-keep-up backwaters of America.

      Where is the hope for America?

    2. He’s not a Never Trumper now. Did you see on the Fox interview how he puffed up when he said he spoke the Trump and the president had his back? He’s got a debt of loyalty.

      1. Kavanaugh has been conspicuously obsequious. Ambition trumped all for a partisan.

  8. WOW!
    Naaman, you have a seriously messed up time line. If this is what all the rucus is about, the left is too stupid breath.
    Just one major fix, and that fix will correct the rest of your ill informed notions.

    The only Senator that was aware of CBF before her name was leaked by Feinstein, was Feinstein.

    President Reagan’s quote seems apt, here. “Its not that the left doesn’t know anything, its just that so much of what they do know is wrong.”

    1. Why do poorly educated, stale-thinking conservative bigots from backwater Iowa assert that Feinstein was guilty of leaking that name?

      1. You should visit Iowa. It’s very pleasant, the people are friendly, and it has the highest high school graduation rates in the country.

        1. Iowa has been on the wrong end of bright flight for generations, with predictable consequences. Closer to America’s caboose than engine. Fortunately, our stronger communities create enough power to overcome the drag.

          1. Arthur L. Hicklib’s projecting his own 85 IQ insecurities again.

    2. Timeline on Ford’s Allegation
      2018 Jul 6. Ford contacted Rep. Eshoo’s office.
      Jul 6. Ford texted the WaPo tipline.
      Jul 9. Ford spoke with Rep Eshoo’s staff.
      Jul 10. Ford contacted WaPo. Eventually Ford spoke with WaPo reporter Emma Brown.
      Jul 18. Ford met with Eshoo’s staff.
      Jul 20. Ford spoke with Rep. Eshoo who suggested Ford should write Sen. Feinstein.
      Jul 30. Ford’s letter arrived at Feinstein’s office.
      Jul 31. Feinstein wrote to Ford.
      Jul 30 – Aug 7. Feinstein spoke with Ford; Ford spoke with Feinstein’s staff who suggested Ford engage attorney Debra Katz.
      Aug 7. Ford took a polygraph test that showed she was truthful “when she said a statement summarizing her allegations was accurate”.
      Aug 20. Feinstein met with nominee Kavanaugh.
      Aug 28. Feinstein’s staff particpated in a background investigation (BI) call to ask Kavanaugh confidential questions.
      Aug 31. Feinstein’s letter to Ford promised not to share Ford’s Aug 30 letter w/o consent.
      Sep 4 – 7. Public Senate Judiciary Committee (SJC) hearings on Kavanaugh.
      Sep 6. SJC closed session questioning of Kavanaugh on sensitive issues; Feinstein chose not to attend.
      Sep 12. SJC Democrats requested a letter in possession of Feinstein about “an incident that was relayed to someone affiliated with Stanford University, who authored the letter and sent it to Rep. Anna Eshoo”.
      Sep 13. Feinstein sent Ford’s letter to the FBI. FBI redacted Ford’s name, forwarded the letter to the White House who sent the letter to the SJC.

      1. Part 2.
        Sep 16. WaPo published Emma Brown’s interview with Ford, “California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her Allegation of Sexual Assault” naming Ford publicly.
        Sep 17. SJC announced the nomination would not proceed until the SJC heard from Ford. SJC did a BI call on Kavanaugh; Feinstein and her staff did not participate. The hearing of Ford and Kavanaugh was scheduled for Sep 24.
        Sep 18. Ford’s attorneys (Debra Katz, Lisa Blanks and Michael Bromwich) asked the SJC to order an FBI investigation before the SJC held a public hearing questioning Ford and Kavanaugh. Also they said Ford could not make the Sep 24 hearing because the alleged assault left her with a fear of flying and requested a delay so she could travel from CA to DC by land.
        Sep 20. The scheduled vote was not held due to the sexual assault allegations. Pres Trump did not withdraw Kavanaugh’s nomination but said there’d be a delay but there’d be a vote.
        Sep 23. Deborah Ramirez accused Kavanaugh of sexual assault in 1983 after six days of memory recovery therapy.
        Sep 24. The scheduled hearing was not held due to further investigations and Ford’s fear of flying.

        1. Part 3.
          Sep 25 & 26. SJC spoke with Kavanaugh about Ford’s allegations. Feinstein’s staff were present “under protest” and refused to particpate.
          Sep 26. Attorney Michael Avenatti released Julie Swetnick’s declaration that Kavanaugh was involved in gang rape at ten parties she attended 1981-1983.
          Sep 26. SJC Democrats: Julie Swetnick’s sworn affidavit led them to request the SJC vote be canceled and either the FBI investigation be reopened or the nomination be withdrawn but at a minimum the SJC should cancel the Sep 28 vote.
          Sep 27. SJC held a public hearing on Ford’s allegations.Ford admitted she flew to DC for the Sep 27 hearing. First Ford testified and was questioned by Democrat SJC members and for the Republican SJC members by Rachel Mitchell, an Arizona public prosecutor specializing in special victims cases. Then Kavanaugh testified questioned by the SJC members.
          Sep 28. SJC voted 11-10 to send Kavanaugh to a cloture vote before the full Senate in spite of the Democrats’ letter based on the Swetnick allegations. After SJC requests, Pres Trump ordered FBI to investigate all sexual assault allegations against Kavanaugh.
          FBI restricted to possible witnesses to the events, not the hordes of “I heard later and I believe”. The Ford and Ramirez allegations were investigated; FBI ignored Avenatti and Swetnick.

          1. Part 4.
            Oct 1. Kate Snow interviewed Julie Swetnick for NBC. Swetnick contradicted her Sept 26 Declaration.
            Oct 5. The Senate voted 51-49 to hold a final vote on Kavanaugh. Only one Democrat for, only one Republican against.
            Oct 6. The Senate voted Kavanaugh to the Supreme Court 50 yea, 48 nay. One Senator had a wedding to attend; another senator elected to “pair” by voting present.

            Any corrections to my seriously messed up time line (cited to verifiable sources) would be appreciated. (version posted edited due to 1500 char limits)

            1. From your earlie post
              Through late Jul, Aug, and into early Sep no public action on these allegations was taken by Feinstein, the FBI, the White House or the Senate Judiciary Committee.?

              How was the “FBI, the White House or the Senate Judiciary Committee” Supposed to take any action, when Feinstein was sitting on the letter? That the part that is messed up. You are perfectly fine miss representing the facts. If Feinstein would have walked the letter over to Grassley, the way committee rules are laid out, the FBI would have initiated a confidential investigation. 2 days later, after all the facts were run down, and named witnesses interviewed, The FBI would have filed their 302’s Then the Judiciary Committee investigative staff would have done a bi partisain investigation using the FBI 302’s, and two more days would have reached a BI-PARTISAN conclusion that CBF story lacked any evidence or corroboration. Case closed, and all before the Judiciary Committee started hearings.
              But that would not have delayed anything.

            2. Correction:
              Aug 31. Feinstein’s letter to Ford promised not to share Ford’s Aug 30 letter w/o consent.
              to:
              Aug 31. Feinstein’s letter to Ford promised not to share Ford’s Jul 30 letter w/o consent.

              Ford took her accusations to WaPo and Rep Eshoo in early July. Feinstein had the accusations late July. The FBI, White House, and Senate Judiciary Committee had the 30 Jul letter for three days before Ford went public in the Emma Brown WaPo article. They all surely vetted them beyond just sitting on them or passing them around. Personally I think the Ford allegations were known to several of these parties long before Feinstein’s 13 Sep forward to FBI or WaPo/Ford’s 16 Sep reveal and were not acted on publicly because they were not considered credible enough to act on. Except as an early Oct Surprise. What WaPo, Eshoo, Feinstein, FBI, WH and SJC privately thought of the allegations would be interesting to me. Congressional immunity includes the right to lie with impunity and never get called down on it. I have no confidence we will ever get a straight answer.

              I could give more of my further private thoughts on this.

  9. Two more by Trump and the future will look much brighter for a few decades.

    1. When the Supreme Court is enlarged — as has occurred several times during American history, and was recently effected by Republicans in Arizona — by Democrats exercising the type of raw power displayed in Washington recently, conservatives will recognize that this “win” by Trump and his supporters seems destined to be exceedingly costly to the causes of backwardness, bigotry, and superstition.

      There just isn’t enough vestigial bigotry, depleted human residue in emptied backwaters, and half-educated, superstition-laced gullibility remaining in America to keep the modern conservative-Republican electoral coalition afloat.

      1. Nobody is going to just enlarge the Court. It’s too obvious that this would set off a sequence of tit for tat packings every time control of government switched.

        For this reason, it’s quite obvious that, at this point, enlarging the Court is just meant to be the first step in a coordinated program, where the packed Court then permits the executive and Congress to get away with actions intended to assure that control of government never does switch. Democrats have already made clear they want a Court which would not protect freedom of political speech, for instance. And which would impose pro-Democratic gerrymanders, under the guise of abolishing gerrymandering.

        So, when you say, “enlarge the Court”, we know that’s just act 1, and you are also planning on what you’ll do with the Court out of the way.

        1. “For this reason, it’s quite obvious that, at this point, enlarging the Court is just meant to be the first step in a coordinated program, where the packed Court then permits the executive and Congress to get away with actions intended to assure that control of government never does switch.”

          Which party has had two presidents elected with a minority of the popular vote? Justices approved by which party decided a presidential election? Who gerrymandered their way to a super-majority in NC and majorities in a dozen other states? Who passed voter ID laws aimed at disenfranchising people likely to vote for the opposition? Senators from which party refused to act on a Supreme Court nominee from the opposing party?

          The coordinated program to assure control of government never does switch has already happened. Your side won. Is it too much to ask that you display the tiniest glint of self-awareness?

          1. Except that we fought, not enacted, campaign censorship laws. Only one party in this country has tried to repeal the 1st amendment, and it isn’t the Republican party.

          2. There are no national elections, not even for President, so no President has ever been elected with a minority of votes. With one exception 91824) every President elected has gotten a plurality of votes in the majority of states.

          3. Heh, someone should tell the Democrats how presidential elections work, it’s not that complicated. Then Hillary could visit states like Wisconsin and Michigan rather than trying to pour it on in California and New York.

            It’s certainly not out of the question that if Trump, and the voters, knew they were playing under different rules they could win under those rules too. I know as a Blue state conservative that a lot of conservatives don’t turn out when there is nothing at stake in their districts.

            It’s hard enough to win the presidency by the rules, but claiming your not legitimate unless you win a meaningless beauty contest too is just sour grapes.

            1. The way elections work is that the party that promotes intolerance, ignorance, backwardness, and superstition, while the electorate is becoming less white, less bigoted, less rural, less backward, and less religious, can rely on our system’s structural amplification of yahoo voices (with sides of racially targeted voter suppression and gerrymandering) for only a bit longer.

              Republicans take their stale thinking to the grave each day, and are replaced by younger, more tolerant, less religious, more diverse, less bigoted, all-around better people in our electorate. Be hopeful, America . . . the liberal-libertarian alliance has been shaping American progress for more than a half-century, and that improvement seems destined to continue despite the efforts and wishes of people such as Mitch McConnell, Brett Kavanaugh, Roy Moore, David Duke, Donald Trump, Linda Dwire, Mike Pence, James Royal Patrick Jr., Jerry Falwell, Jr., and Richard Spencer.

              1. Despite the fact that you repeat this screed as if it is a magical incantation (talk about bigoted and backward) the facts simply don’t support your “name it and claim it” theology. Gen-Z is coming for you buddy, and your precious millennial trash are going to be crushed between Gen-X before them and Gen-Z behind them, now have a great day.

            2. The way elections work is that the party that promotes intolerance, ignorance, backwardness, and superstition, while the electorate is becoming less white, less bigoted, less rural, less backward, and less religious, can rely on our system’s structural amplification of yahoo voices (with sides of racially targeted voter suppression and gerrymandering) for only a bit longer.

              Republicans take their stale thinking to the grave each day, and are replaced by younger, more tolerant, less religious, more diverse, less bigoted, all-around better people in our electorate. Be hopeful, America . . . the liberal-libertarian alliance has been shaping American progress for more than a half-century, and that improvement seems destined to continue despite the efforts and wishes of people such as Mitch McConnell, Brett Kavanaugh, Roy Moore, David Duke, Donald Trump, Linda Dwire, Mike Pence, James Royal Patrick Jr., Jerry Falwell, Jr., and Richard Spencer.

              1. You do realize that whites fight all of our wars, grow all of our food, make all of our stuff, and keep America functioning, don’t you? I don’t know why you lefties think you’re going to fare so well in your majority mestizo paradise.

                1. Most reports indicate non-whites constitute roughly 40 percent of our military personnel and that the percentage is increasingly rapidly.

                  1. Not in combat roles.

                    1. Are you suggesting that white deficiency is the reason America hasn’t won a war in 70-some years? I would question blaming whites in that manner.

          4. Short of the disenfranchisement claim (which itself is a lie fabricated by a judge trying to act as mind-reader), every one of these was a valid parliamentary maneuver. You are just mad because they benefited Republicans. Democrats have used these very types of tools in the past.

            “Is it too much to ask that you display the tiniest glint of self-awareness?”

            I think this is a very funny accusation given your own forgetfulness.

          5. If you go back far enough, both of them. Historically, plurality wins (in terms of national vote totals) are more common than straight majorities.

          6. Big meanie republicans! Demanding that only citizens can vote!

            1. Republicans push to arrange it so that only whites can vote. That is the goal of right-wing bigots’ race-targeting voter suppression activity.

              Carry on, clingers. Instead of denying that you are bigots, embrace your nature!

          7. For fucks sake. Voting patterns change based on the means of the election. You’re an idiot.

          8. Still passing on the lie about Bush v Gore I see. Just one question, point me to that part of the Florida
            Constitution that allows the Supreme Court of Florida to order a state wide recount.
            Then we can talk

            (That doesn’t even get to the fact of, the Media consortium NYT, WSJ, ABC,etal that recounted the votes 4 different ways and Bush came out the winner in each of them)

            1. As summarized by SCOTUS in Bush v. Gore, Fla. Stat. ?102.168(8) (2000) permitted Florida courts “to provide any relief appropriate under the circumstances” in a contest of an election.

              According to Wikipedia, the Media consortium concluded Gore would have won in each of the four standards analyzed.

      2. The constitution has evolved to the point were the number is fixed at nine.

      3. And Arthur, can you have your side put more articles like, White Women, Come Get Your People in the NYT? That was spectacular.

      4. Happily, there is enough vestigial bigotry, depleted human residue in emptied backwaters, and half-educated, superstition-laced gullibility remaining in America to keep the modern Marxist-Progessive-Democratic electoral coalition afloat.
        Just not for very long.

  10. Poor Arthur, you obviously have a cause of action in tort against the schools where you were victimized by progressive educators . . . posts here (as exhibits) will support counts for compensatory and punitive damages. You should have no problem in securing summary judgment on all counts.

    1. Unfortunately, the courts are unlikely to ever recognize a cause of action for educational malpractice. It would bankrupt every University, College, and public school district in the country.

      1. Get an education, Dan. Start with standard English, focusing on capitalization.

  11. I will take Politico seriously when they ask these questions: Are the Democrats on the Senate Judiciary Committee damaged goods (IMHO, absolutely, and utterly beyond redemption)? And can they overcome it? Hell, no.

    1. Most Republicans and conservatives figure some Democrats on the Senate Judiciary Committee are damaged goods because they are women.

      Carry on, misogynistic clingers, led by the white male Republicans on the Judiciary Committee, who are bothered by how uppity big-city women have gotten.

      1. There’s Artie letting his sexism bubble up. Just because you think women are lesser people, Artie, doesn’t mean everyone does.

        1. A bunch of disaffected white males commenting on a white male right-wing blog about the actions of the white male Republican lineup of the Senate Judiciary Committee is the proper group to offer pointers on respect for women?

          Are you guys still wondering why America has been rejecting conservative preferences for at least 60 years?

      2. No, they are damaged goods not because they are women, but because they are Democrats.

  12. “It is difficult to remember now. But when he was nominated in July, Judge Kavanaugh was a respected pillar of the legal establishment, held in high regard by many liberal legal elites, as well as conservatives. The sexual assault accusations against Kavanaugh fundamentally changed his image………But it will be difficult him to escape the shadow of Christine Blasey Ford’s accusation.”

    Which is kinda the point of a smear. (If it was a smear, Your Honor.) Memories are short, and although the media occasionally tries to remind us of Justice Thomas’ career as a sexual predator, their heart is not really in it, because they always have new smears to peddle. The Kavanaugh smear will fade too. Apart from a few people who are (a) literate (b) getting on a bit and (c) inordinately interested in politics, these things don’t last.

    However for those who do remember these things, the important thing is what happens in the Senate elections in November. If the Ds finish up with 49 or more they will conclude that there was no real cost to them for the smear, so it’s good politics and worth doing to the next nominee. If they finish up with 48 or fewer, they’ll probably conclude that the costs were excessive, and back off.

    1. cont

      Though one of the problems with deciding to back off, is that you don’t have control of all your attack dogs. As some have said already, it’s likely that Avanetti tap dancing on the back of the shark that accuser number 2 had already jumped, was too ridiculous even for Flake and Collins.

      And for the avoidance of doubt, if you’ve been smeared, and the smearers are unhappy that their smear didn’t work, and you feel that you need to make some concessions to reestablish peace and good relations with the smearers, so that they desist from their hissy fits, then congratulations. You are an Establishment Republican.

  13. Perhaps a Constitutional Amendment requiring a super majority (60 or 67 votes) to confirm will stop the partisanship?

    1. And we can call it a “filibuster”.
      It sounds like a workable idea.

      1. De facto, there hasn’t been a filibuster for SCOTUS nominees (had there been one, Thomas would not be on the Court).

        1. There have been filibusters for SCOTUS nominees.

          The way to check this is to verify this is to check the US Senate’s list of cloture motions. Cloture motions are motions to end a filibuster.

          Note: technically, the “nuclear option” didn’t end filibusters for judicial nominees, it reduced the cloture requirement from 2/3rds to simple majority, generally making attempts to filibuster judicial nominees pointless.

          Cloture had to be invoke on Kavanaugh’s SCOTUS nomination. Cloture Motions 115th Congress

          And pre-nuclear option, cloture had to be invoked on Samuel Alito’s SCOTUS nomination. Cloture Motions 109th Congress

          Point of Interest: The cloture vote for Alito was 72 – 25, but his confirmation vote was only 58-42.

          So it’s possible to have enough votes for a super majority on cloture, but not on the confirmation itself. So, no a constitutional super majority requirement for actual confirmation would not be equivalent to a super majority requirement for cloture.

          1. Were any prospective justices rejected because they failed the cloture motion even though a majority voted for cloture?

            I wonder if my Amendment were in effect if Alito would have been confirmed.

            1. I have no idea. The data on the Senate web site is not organized in a way that would make that easy to determine. You also run into the issue where if a cloture vote fails, they can hold more cloture votes.

    2. Perhaps a Constitutional Amendment requiring a super majority (60 or 67 votes) to confirm will stop the partisanship?

      That would still leave the Supreme Court free to co-opt social political issues. It would be better to have an amendment to restore the view of the constitution enunciated by Justice Holmes in overruling Lochner:

      “I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.”

  14. The people who claim that Kavanaugh lacks judicial temperament are apparently saying that he acted too much like a politician. But when the court takes on the role of passing on matters that are purely political and that were not intended to be controlled by the Constitution, such as abortion and gay marriage, and does so without citing any rationale that would not also require them to say that laws restricting polygamy, adult incest, prostitution, drug use and suicide are unconstitutional, then it’s absurd to hold onto the fiction that the Supreme Court is merely interpreting the Constitution. We’ve reached the situation described in the story of the emperor’s new clothes and everybody knows it. When the Court takes blatantly political action, deciding what the best social policy for the country should be, then it should be treated like a political body and it’s entirely appropriate to confirm justices on a strict party line vote.

    1. Precisely how much bigotry toward gays does the Constitution authorize, in your judgment (and that of all half-educated, stale-thinking, bigoted rubes)?

      1. As much as it authorizes toward midgets, color blind people, and morons from western Pennsylvania: no more, no less.

        1. Do you assert that a federal statute forbidding midgets, color blind people, and morons from western Pennsylvania to marry would be constitutional?

          What if the midget claimed that a magic sky fairy insisted that his marriage should be permitted to occur?

          1. Nobody prevented them from marrying. It prevented certain government conditions about the marriage.

            1. You were just as much fun when you were desperately trying to preserve anti-miscegenation laws, Jesse.

      2. Precisely how much bigotry toward gays does the Constitution authorize, in your judgment (and that of all half-educated, stale-thinking, bigoted rubes)?

        The Constitution is not a cure-all for all of society’s ills. It was not intended to invest in the Supreme Court the ability to make any law that in its opinion would be good for society. Under what principle does the Constitution protect gays from bigotry but does not protect public sexual exhibitionists or polygamists or those wishing to engage in adult incest from bigotry?

        1. Perhaps sexuality is a trait (who you are) and the others are behaviors (what you do)?

          1. Perhaps sexuality is a trait (who you are) and the others are behaviors (what you do)?

            1. Does this need to be shown true scientifically? Has it been?
            2. Therefore we cannot prohibit being gay but can prohibit gay activities?
            3. What part of the Constitution is being relied on to say that there can be no bigotry on the basis of traits?

            1. 1) There is scientific support for the proposition that homosexuality is very hard to change, as if it is a trait.

              2) Per dicta in Christian Legal Society, objection to homosexual conduct is an objection to gays as a class.

              3) Although there is no single case that definitively established criteria for what constitutes a suspect (or quasi-suspect) classification under the Equal Protection clause, immutability has been cited as one of the factors.

              1. Although there is no single case that definitively established criteria for what constitutes a suspect (or quasi-suspect) classification under the Equal Protection clause, immutability has been cited as one of the factors.

                According to the case you cited, the following factors were used to deny such a classification:

                As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless.

                1. Let’s take the case of the exhibitionist. He enjoys walking around in public places naked. Such people have historically been subjected to discrimination. They exhibit characteristics that are obvious and distinguishing (they don’t wear clothes). They are a minority and are politically powerless. The exhibitionist has a constitutional right to engage in his behavior?

                2. Why should protection depend on how the person acquired his condition or whether he is able to change his behavior? He doesn’t want to change his behavior. Would the gay lifestyle cease being protected if an effective treatment were discovered?

                3. Abortion is a behavior, not a trait. Why is that behavior protected but not the behavior of the exhibitionist?

                1. 1) Being an exhibitionist isn’t an immutable trait.

                  2) If in an alternate universe being gay wasn’t largely immutable, a person could very easily change their behavior and marry a person of the opposite sex (you still hear this argument from those who think Obergefell was wrongly decided).

                  3) Controlling one’s reproductive choices is a fundamental liberty. Running around naked isn’t.

                  1. 1) Being an exhibitionist isn’t an immutable trait.

                    But it doesn’t have to be immutable. Observe the ‘or’:

                    “obvious, immutable, or distinguishing characteristics that define them as a discrete group”

                    2) If in an alternate universe being gay wasn’t largely immutable, a person could very easily change their behavior and marry a person of the opposite sex (you still hear this argument from those who think Obergefell was wrongly decided).

                    How does this respond to the question: Why should protection depend on how the person acquired his condition or whether he is able to change his behavior?

                    3) Controlling one’s reproductive choices is a fundamental liberty. Running around naked isn’t.

                    Surely you recognize that this begs the question. Why should controlling one’s reproductive choices be a fundamental liberty and running around naked not be?

                    1. 1) Like I said, there is no established criteria. But, immutability is a factor. That’s a strike against exhibitionists. And given that suspect or quasi-suspect classifications are immutable except religion, one strike might be enough.

                      2) When a person can easily change their behavior, the law targets conduct (what a person does), not status (who the person is). Targeting conduct is routine in the law. It also explains why immutability is a critical factor in suspect classification analysis.

                      3) Being forced into raising unwanted children seriously impacts a woman’s ability to determine what she does with her life. Being forced to wear clothes in public has nowhere near the same consequences.

                    2. When a person can easily change their behavior, the law targets conduct (what a person does), not status (who the person is). Targeting conduct is routine in the law. It also explains why immutability is a critical factor in suspect classification analysis.

                      So if a psychological treatment were found that would turn a gay into a heterosexual (if the person consented to the treatment), then you think it would be OK to pass laws against homosexual activities?

                      Being forced into raising unwanted children seriously impacts a woman’s ability to determine what she does with her life. Being forced to wear clothes in public has nowhere near the same consequences.

                      Isn’t it the voluntary procreation that has this effect? Furthermore, she can give the child up for adoption and it will have little impact on her life. What about laws against polygamy or adult incest? Don’t they seriously impact a woman’s ability to determine what she does with her life?

                    3. In your alternate universe, a law which proscribes homosexual activity wouldn’t discriminate against gays as a class, but it would violate the Constitution’s guarantee of liberty per Lawrence.

                      Proscriptions against abortion result in involuntary procreation. Losing a child to adoption has significant impacts on one’s life. Perhaps polygamy or adult incest should also be protected as fundamental liberties. I would have to see arguments on both sides before giving my opinion.

                    4. In your alternate universe, a law which proscribes homosexual activity wouldn’t discriminate against gays as a class, but it would violate the Constitution’s guarantee of liberty per Lawrence.

                      This gets to the nub of the matter. What are the criteria for determining whether a particular liberty is protected under the Constitution? Lawrence said:

                      These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. ? The liberty protected by the Constitution allows homosexual persons the right to make this choice.

                      My point is that there are no coherent critera under which it can be clearly discerned that homosexual activity is a liberty but that polygamy is not. It ends up being simply a pronouncement representing the personal beliefs of the members of the Supreme Court. Is that what the founders and ratifiers had in mind?

                      Perhaps polygamy or adult incest should also be protected as fundamental liberties.

                      Exhibitionism too? Why not? To what extent does the answer depend on public opinion?

                    5. I have no idea what the drafters of the 14th Amendment had in mind. I prefer to rely on the text, and the text is vague as to the scope of the protected liberty right. I don’t think the answer ought to depend on public opinion.

                    6. the text is vague as to the scope of the protected liberty right

                      William Blackstone, in Commentaries on the Laws of England, had a chapter on “The Absolute Rights of Individuals,” in which he described the rights to life, liberty and property:

                      these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.

                      Blackstone was cited as authoritative in Federalist 84.

                      In 1866, James Wilson, chairman of the House Judiciary Committee, read the Blackstone triad to the 39th Congress and commented, “Thus, sir, we have the English and American doctrine harmonizing.”

                      Is it more likely than not that when the 14A said “nor shall any state deprive any person of life, liberty, or property, without due process of law,” it was referring to those terms as they were used in English law?

  15. Are people arguing that what Kavanaugh said was not true or just that he shouldn’t have said it?

    You sowed the wind for decades to come. I fear that the whole country will reap the whirlwinds. The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. ?

    This first allegation was held in secret for weeks by a Democratic member of this committee and by staff. It would be needed only if you couldn’t take me out on the merits. ?

    This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups. ?

    After I have been in the public arena for 26 years without even a hint, a whiff of an allegation like this. And when my nomination to the Supreme Court was just about to be voted on, at a time when I’m called evil by a Democratic member of this committee, while Democratic opponents of my nomination say people will die if I’m confirmed, this onslaught of last-minute allegations does not ring true. ?

  16. “the deeply divisive Kavanaugh confirmation comes on the heels of other developments that have generated immense anger among Democrats”

    Would someone please explain why anger from Democrats is taken by Mr. Somin to be a problem, while immense anger from Conservatives over the direction of the SC lo these many years is apparently a minor annoyance to be brushed aside. I do appreciate his libertarian bent generally, and possibly I missed it, but I don’t recall his previously asking the SC to concentrate on cases whose policy outcomes would be attractive to conservatives in order to maintain the legitimacy of the court.

    1. You could provide an example of your conjecture.

  17. Are you suggesting to us, swood, that you think Ford was there pursuing revenge on behalf of the Clintons, or because she was being paid from a pot filled with outside swag?

    I ask that seriously. I take those assertions as ludicrously unlikely, and proof that Kavanaugh is fully enrolled in the paranoid wing of movement conservatism. I hope you don’t think me disingenuous for that belief. If I am not supposed to take that from Kavanaugh as forthright and earnest, by what method should I decode his true meaning?

    1. We don’t know for sure, of course.

      But IMHO, the most likely probability is that Ford made up the story out of whole cloth, with the help and support of one or two friends, including the forging or amending of an analyst reports, for the political purpose of taking down Kavanaugh, and incidentally achieving fame and fortune as a heroine of the left.

      When her early effort was acquired and inspected by the Dem machine (ie Feinstein, Katz and associated legal swamp creatures) it looked like a good runner, but some of the details – eg the “analyst report” – were too flakey to be exposed to public view. So they took on the project on a more professional basis and ran with it. So all the delay delay delay, FBI, FBI, FBI, waah,waah,waah stuff is the Dem machine. But they were probably having to work with rather shoddy amateur preliminaries, which is why the political theatrics have been done to a reasonable standard, but the actual smear and the “evidence” to make it stick are so weak.

      Then the piling on by other me-too merchants, not under firm Dem machine control, sent the story into shark jumping territory, and blew an otherwise serviceable smear campaign.

      1. Your keen level of insight inclines me to ask for a similar explanation of why so many people unfairly contend that birthers are gullible, partisan bigots.

    2. Are you suggesting to us, swood, that you think Ford was there pursuing revenge on behalf of the Clintons, or because she was being paid from a pot filled with outside swag?

      I’m not suggesting. I know. I talked to a person that knows personalyy about Democrats on the Judiciary Committee, and the Democrat Senate leadership paying CBF to fabricate the accusation and bring to the public.

    3. Anita hill has made millions since smearing Thomas. She travels the country and is celebrated. Ford already had 1 million in a GoFundMe and that is before a book deal. Mix some zealotry woth fsme and fortune and you get people willing to placate their morals. Again. The base premise of her admission to assault being due yo an argument over a second front door has been shown to be a god damn lie. They used the second door in a rental unit.

    4. Are you suggesting to us, swood, that you think Ford was there pursuing revenge on behalf of the Clintons, or because she was being paid from a pot filled with outside swag?

      Ford herself doesn’t need to have been pursuing revenge. But those who were pursuing revenge made sure that her story was not handled under the normal Judiciary Committee procedures ensuring confidentiality. And much of the outrage really concerns other matters, like abortion and campaign contributions, that Kavanaugh opponents hold against him. Furthermore, the fact that there was enormous funding in opposition to Kavanaugh is not negated simply because Ford was not a direct recipient of that.

  18. I appreciate Ilya’s attempt to try to find a middle ground, and his recognition that steps must be taken to restore the court’s legitimacy, which has been badly damaged by this episode and the Senate leadership’s refusal to act on Garland’s nomination. The best judges, both liberal and conservative, are those who are best able to set aside ideology and to decide cases based on reasoned jurisprudential grounds. A distressing number of cases in recent years have seen the justices appointed by Republicans lined up against those appointed by Democrats. Those kinds of splits are not inevitable, nor have they been a characteristic of the court throughout its history. Although Justice Kavanaugh’s comments about the alleged conspiracy against him leave me skeptical of his ability to set aside his ideological preconceptions, I hope he will prove me wrong.

    1. “I appreciate Ilya’s attempt to try to find a middle ground,”

      There is nothing inherently sacred about middle ground. It depends on context. You can have middle ground between Mensheviks and Bolsheviks or fascists and nazis. In This case middle ground is between cowards and screaming toddlers.

      “and his recognition that steps must be taken to restore the court’s legitimacy, which has been badly damaged by this episode and the Senate leadership’s refusal to act on Garland’s nomination.”

      Please explain to me again how the Senate acting on its Constitutionally sanctioned power is exactly the same as a drummed up circus over a baseless accusation? It seems this is being taken as a given yet you people refuse to explain this everytime I ask.

  19. “We may never really know whether the accusations have any validity…..

    Kavanaugh may be on the court for many years, during which time perceptions could change. But it will be difficult him to escape the shadow of Christine Blasey Ford’s accusation.”

    This was the whole point of unsubstantiated accusations that forced Kavanaugh to have to “prove a negative” You can not defend yourself if you do not have a year, day, time, place, etc How can you prove you were not some place doing something improper if you do not even know what year and place you supposedly did something? That was the entire point when it became clear there were no judicial qualification issues.

    1. I would love each and every man who supported babyvoice’s side in this debacle to get accused and go through the same sort of gauntlet themselves if they really believe this is how the system should work. See how much they like it.

      1. That sentiment is especially powerful when it comes from the birther-‘lock her up’ side.

        Carry on, clingers. So far as your betters in America permit, anyway.

  20. Someone commented above about when “history” should fade into the past. I heard a good lecture by a history professor that given the advancements in technology and social acceptance (even among those who would call Trump supporters knuckle draggers) it should be about 25 years. Sounds about right by me.

    1. Is there an exception for superstition?

    2. So slavery and it’s attendant ramifications should have been ignored after 1890…just like it never happened?
      Similarly for the Shoah: after 1970, Jews should just suck it up and move on?

      1. I’m not sure ignoring history that’s more than 25 (or 50) years old is a good idea. But after that sort of timescale, something does change. It’s history – in the sense that no one around now was responsible for it.

  21. First of all, historians will notice that Kavanaugh and Thomas were subjected to the same tactic of last minute sexual attacks after it was clear they would be confirmed on the merits, and the accusations lacked any support other than a very liberal aggrieved woman who wanted to protect Roe v. Wade and who profited from her attacks for the rest of her life.

    Second, in 2018 the USA is in the middle of #MeToo, the biggest witch hunt since Salem.

    Third, in 2018 the media is full of Trump Derangement Syndrome and is openly violating every standard of justice and journalism since the Renaissance. Most of the press still deny the 2016 election.

    Fourth, the Democrats are still hurting from the Garland raw politics by the Republicans.

    Fifth, Roe v. Wade has infected the entire judicial nomination process because it has zero grounding in the written Constitution and thus just exists by the whim of 5 of 9 Justices.

    No historian is going to look back and say “Wow four witnesses named by the accuser say it didn’t happen, including her BFF, but I can’t figure out why the Senate wouldn’t let one woman sink a nomination with 36 year old nominations.

    In the future every nominee will have Facebook comments and photos of their whole life to ridicule every candidate and nominee. They will laugh at the idea that drinking beer in high school is a barrier.

    1. I might be able to live with if not be okay with the federal tyranny of Roe v Wade a bit more if the ‘right to privacy’ that supposedly underlied it didn’t just by and large magically only exist for abortion. If there was any intellectual honesty among the judiciary this should have set off a renaissance of actual strong protections. Instead we’re in this absurd situation where our right to privacy protects killing babies and wearing a shirt bragging about it but not getting reamed and datamined from all directions these days and virtually nobody cares or is even lucid enough to marvel how bizarre this is.

    2. Roe was not a 5-4 decision, contrary to popular legend.

      1. Roe did not allow all forms of abortion despite popular opinion.

        1. The problem wasn’t so much Roe, as it was Doe v Bolton, decided later the same day.

          While Roe said that abortion was subject to regulation after the first trimester, and could even be outlawed except for exceptions for the life or health of the mother in the third, Doe snatched that away by establishing that a doctor’s determination that an abortion was medically necessary could not be subject to challenge or review.

          This opened the door to pretextual determinations of medical necessity, and utterly eviscerated the supposed permission to regulate granted by Roe.

          It appears to me that Roe v Wade and Doe v Bolton were a setup; The supposed plaintiff in the latter case later complained that “her” lawyer hadn’t even consulted with her before bringing the case, and that she was unaware of, and would have opposed, the litigation.

          I wouldn’t be surprised to learn that the case had been arranged in advance with the Court majority.

        2. And before Roe, abortion was legal in every jurisdiction in the nation.

  22. Clarence Thomas isn’t tainted, except in ignorant liberal circles. 15 years from now most people will look back on the witch trials liberals pushed. Liberals will continue to claim their false values based on lies while rational people will look at the zero evidence and pertain it to another case of moral hysteria like the Salem witch trials or the 80s daycare center hysteria. Liberals will continue to rely on feelz over facts and continue looking like the bunch of ignorant people they are.

    1. I wouldn’t discount the impact of the left having almost complete control of university history departments, indeed, the whole profession. The history books are very unlikely to be kind to Kavanaugh.

  23. “potentially gutting judicial review…”

    Be still my heart.

    But alas it will be just potentially forever.

  24. The Supreme Court has not been diminished, but the Senate has.

    This will not be remedied if the Democrats take the Senate. If Republicans hold, then expect Senator Graham to restore order to the Judiciary Committee, should he become Chairman.

    As far as granting cert, there is a strategic case to be made for the Court playing small ball in the short run while waiting for reinforcement from a soon to be appointed Justice Barrett…

    1. While, from an actuary standpoint, we should probably expect RBG to croak some time in the next 6 years, it’s hardly guaranteed.

  25. The Supreme Court does not actually have a good record when it comes to using judicial review to interfere with federal law. Recall that Dred Scott was the first Supreme Court case to overturn a significant federal law. (Marbury v. Madison is a bit overhyped. It did not overturn a significant federal law or have any real practical significance.)

    There is absolutely nothing wrong with court-packing. It is nothing more or less than saying that future presidential elections ought to have consequences. Just like the Trump election (where Trump failed to even win a majority of votes) has had consequences. Court-packing is about democratic control over the law rather than leaving the issue to random elites. Also, if we want to lower partisan conflict, political victories ought to be more less random and more reversible. Losing a political fight (even due to a fluke) today ought not feel like losing one for a generation or more. But those are the stakes just so long we do not allow court packing.

    Court packing OUGHT to be used by BOTH parties. That is not an escalation; that is merely democracy in action. It would not end judicial review; it would ensure democratic supervision of judicial review. In fact, America does not need philosopher kings or kings of any kind.

    1. Court packing refers not simply to filling existing vacancies with partisans,but with creating new seats for the sole purpose of altering the balance of the courts. If both parties process as you suggest, we would soon have dozens of Supreme Court justices…

      1. Strike “process” and insert “proceed”. Perhaps Reason could install an Edit function?

        1. I second your call for an edit function. Except, adding it would mean I would spend more time on my posts. Which probably is not good, even though I hate all the typos in my comments all the time.

      2. Is your concern then that the salaries of Supreme Court justices would get too high?

        One solution to that would be to have Supreme Court justices also work as Court of Appeals judges. I think we can find ways to make sure that the time of all of our judges is well-spent and efficiently used.

        The much bigger issue than the size of the Supreme Court is the power of the Supreme Court. Somewhat higher salaries for that branch of government is a small price to pay for democratic accountability.

    2. “There is absolutely nothing wrong with court-packing. It is nothing more or less than saying that future presidential elections ought to have consequences. ”

      Oh, come off it. If packing the Court weren’t a big deal, the Democrats would have gone along with FDR on doing it. It isn’t as though the New Deal Congress was thwarting him left and right.

      It’s a big freaking deal, because it’s not just increasing the size of the Court. It’s saying that you’re not going to let the courts stand in your way, you’re going to turn them into a rubber stamp, and then go on a rampage.

      Everybody understands this: The point of Court packing is to eliminate the Supreme court, and thus the Constitution, as a limit on what you can do. That you’re going to set out to do a bunch of stuff that was previously understood to be unconstitutional.

      It’s even worse than that, because it’s also understood that packing the Court once just means that the next time the other side gets control, they’ll also pack the Court, and undo everything you accomplished. So, packing the Court is pointless unless you’re going to follow it up with a serious effort to make sure the other side can’t ever again get control.

      Packing the Supreme court isn’t an ordinary political move. It’s a game ending move, it indicates you’re done with letting politics be competitive. That you’re planning on making the country into a one party state.

      1. Elections undoing what the other side has done is THE WHOLE POINT of democracy. Believe it or not, politicians and government officials are not infallible. And neither are the voters who participate to some extent in selecting politicians. So, correcting what was done in the past is a necessary option. One that is foreclosed by an ideological Supreme Court throwing its weight around.

        I, for one, do not believe that either party has a monopoly on wisdom. Nor do I believe either side ought to be able to entrench its policies or prevent change by the opposition just in case the opposition wins election.

        As far as the Constitution goes, the limits aren’t really created by the Constitution. They are created by the judges. When Justice Taney declared that it was not unconstitutional for the federal government to regulate slavery in the territories, he was really just inventing the law. The same is true of the justices who decided that FDR’s policies were inherently in violation of due process. The recent Obamacare challenge? There is no action/in-action distinction in the Constitution. The idea that this distinction has a constitutional pedigree was invented just a few years ago. Judicial activism characterizes justices from BOTH parties, period.

        When the stakes of politics are lower because everyone has confidence that future voters can reverse today’s mistakes, partisanship will cool down. We need court packing to move power to where it belongs. To ordinary voters.

    3. Court-packing is about democratic control over the law rather than leaving the issue to random elites.

      Court-packing only works when one party controls the presidency and both houses of congress, and when the Senate kills the filibuster on general legislation. (Do you think that the filibuster could be killed for this and still be recognized for any other purpose?) With the filibuster gone the majority can do anything it wants to concerning existing law. Is this what you are recommending?

      You are also saying that such a majority should be able to decide constitutional questions politically by adding as many justices as necessary to produce the interpretation desired. This turns the Constitution into ordinary law, changeable by the majority. Is this what you had in mind? So much for protection for minority rights or for unpopular speech. Limits on search and seizure would be set by Congress and be subject to the will of the mob. Would all this have a salutary effect on the country?

      1. “Do you think that the filibuster could be killed for this and still be recognized for any other purpose?”

        Technically the filibuster is still quite alive, even for judicial nominations. The rules change that has been referred to as the nuclear option didn’t prohibit filibusters of judicial nominees, it just changed the required vote to end a particular filibuster from a 2/3rds super majority to a simple majority. Technically, a judicial nominee can still be filibustered, but as long has the nominee is supported by the Senate Majority, a filibuster is pointless.

        1. Technically the filibuster is still quite alive, even for judicial nominations.

          According to the Senate definition:

          filibuster – Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

          If it is not possible to block or delay senate action, or to obstruct, then how can it be called a filibuster?

          1. filibuster – Informal term for any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.

            “If it is not possible to block or delay senate action, or to obstruct, then how can it be called a filibuster?”

            Nothing in the definition you quoted requires success or even any threshold of probability of success to qualify as a filibuster.

            Even before the “nuclear option”, something like 90% of filibuster’s failed.

      2. I have a long history of advocating for the elimination of the filibuster on legislation.

        And yes, I am in favor of majorities passing the laws that they want. As long as we have a democratic process, future majorities can, more or less, correct the mistakes of past majorities. That isn’t to say that mistakes, whether by democracies or dictatorships, do not have some permanent and irreversible consequences. It is to say that we are better off when we can move away from mistaken policy quickly, and that democracy is superior to either dictatorship or rule by elites.

        I think it is interesting that you would say that the law decided by democratic majorities is essentially “mob rule.” That has always been the claim of the elites who are typically the real problem and want to maintain their privileges. If you are a slaveowner, of course you are scared of ordinary people who do not benefit from slavery destroying that institution and destroying your unearned privileges. So, you characterize those ordinary people as the “mob” and say that their rule is “mob rule.”

        Let’s be clear. Either the ordinary voters are in charge, or a bunch of elites are. I believe that ordinary people not only should be in charge, but that they being charge is the only morally acceptable outcome.

        1. I think it is interesting that you would say that the law decided by democratic majorities is essentially “mob rule.” That has always been the claim of the elites who are typically the real problem?

          There are many features of our government that were put in there to keep excited and passionate majorities in check. What other purpose was there for the Bill of Rights? Are you opposed to the concept of a first amendment, limiting the right of the majority to curtail your freedom of speech?

    4. Expanding SCOTUS is not a bad idea. But with a plan. One additional judge every 4 years until you reach “the number”
      This would give every President one appointment per term, plus replacements. This would help camouflage some of the crazy.
      “The Number” is what? 19? 25? 29?
      Expanding (not packing) the court would also encourage some of the oldest, cover to retire, rather than die in office

      I don’t know, but would a 29 member court just end up becoming a judicial parliament? Alliances forming? 5, 6, 7 ,Justices voting as a block? The next new justice having to pick an alliance, if he/she wants to advance their particular agenda?

  26. As we move away from originalism is there any way to avoid reaching conclusions politically? What other way is there to decide what will take the place of original understanding?

    1. Ultimately, all decisions are political.

      It is only a question of whether judges are correct to substitute their own political judgments for the political judgments of those who enacted a particular law or Constitutional provision.

      1. Ultimately, all decisions are political.

        It is only a question of whether judges are correct to substitute their own political judgments for the political judgments of those who enacted a particular law or Constitutional provision.

        What I mean by political is:

        of, relating to, or concerned with the making as distinguished from the administration of governmental policy

        I think that judges giving effect to the political judgments of those who ratified the Constitution are administering, not making, policy. On the other hand, how is it possible to take a course different from the one contained in the Constitution except by making policy?

    2. The problem is that embracing originalism is itself a political decision.

      When you embrace originalism, you say that the intent of dead people, should bind and limit the choices of living people. That is unavoidably a policy preference.

      As yourself this. Why is the Constitution even legitimate? It is a harder question than it first appears. Most people assume it is legitimate, as if it was self-evident. But recall, the preamble of the Constitution. “We the People do ordain and establish…”

      So, why do those people get to ordain and establish, but future generations do not? And before you mention Constitutional amendments, I will simply point out that logic is also circular. Why should the amendment process in the Constitution be the exclusive means of amending the Constitution? The Constitution did not require a supermajority to adopt (it required only majority votes in 9 out of 13 conventions, which, if you do the math, means that the Constitution, by its own terms could go into effect (though not in all states) with a minority of those selected to decide the question saying yes. Further, once a state said yes, it had not good way of saying no. And further still, once enough states ratified to go into effect, the military situation would not be very favorable to any holdouts, who would therefor be under a huge amount of pressure to say yes.

      1. (cont.)

        If the Constitution had taken the same overwhelming societal consensus to adopt as it now takes to amend through the procedures it explicitly lays out, it would have never been adopted. And I haven’t even gotten to the point about how people other than white males owning a sufficient amount of property were excluded from the decision-making process.

        That the Constitution ought to be interpreted in the way the James Madison thought it should be interpreted is not at all clear. It wasn’t even clear to James Madison, who didn’t want his Notes on the Constitution convention to be released until his death.

        1. -If the constitution is illegitimate because of a lack of popular consent, then how can it become *more* legitimate by having judges update it with “living constitutionalist” decisions?

          -Originalists nowadays look to the original *public* meaning, which would diminish the role of Madison’s notes, which weren’t public at the time of ratification.

          -If black people, poor whites and women had more power in the 18th century, what changes would they have wanted made to the constitution? To abolish slavery and promote racial equality, I suppose, but we later had a Civil War and Reconstruction Amendments for that. To enfranchise women, I suppose, but we later had a 19th Amendment for that. What else would they have wanted different? To abolish juries? Eliminate freedom of religion and habeas corpus? To concentrate more power in the Presidency?

          1. Good questions.

            (1)
            If the process of selecting those judges is essentially controlled by voters, then it is the voters who are determining how the Constitution ought to be interpreted.

            (2)
            What originalists look at now, and how that is different than what they looked at yesterday, shows the political nature of originalism. It shows how originalism is just a policy choice, among others. Furthermore, so-called “public meaning” originalists advocate far beyond the so-called public meaning of the Constitution’s words. Take Randy Barnett. He tried to constitutionalize an action/in-action distinction. Merely because he thinks it is a good idea, not because is anywhere to be found in the text of the Constitution. So, the public “meaning” of the Constitution doesn’t really restrain anyone, not even so-called “public meaning” originalists.

            (3)
            I don’t know how the Constitution would be different if everyone had a voice. But I do know this. One basis for saying that the Constitution is legitimate is because “We the People” did ordain and establish it. So, on that point of view, the Constitution is legitimate because we chose it. But, really, no one alive really chose it. This is such a tough issue because, although these concerns about legitimacy are real, the problem of moving to a different system is also real. Change might make the government more legitimate; but change might also make it less so. Therefore, change has to be approached with reasonable caution.

            1. “Therefore, change has to be approached with reasonable caution.”

              Would that differ from the existing amendment process?

              1. Indeed, regardless of label, I’d be open to any school of interpretation which actually reserved amendments to the Art. V process (unless art. V is itself amended).

        2. As yourself this. Why is the Constitution even legitimate?

          Is any law valid or binding on someone who was too young to vote for those who enacted it, or who rejected the process by which such laws were enacted?

  27. How can you sit there calmly while the Supreme Court is about to legalize rape and force women to wear those silly red outfits?

      1. Like these>

        Shame!!!

  28. Kavanaugh will be, after some massaging from Roberts, a moderate – a sort of “soft” Souter – justice and nearly all of these complaints from the left will disappear. No one thinks, for example, if he votes to uphold Roe that that vote will be characterized by the NY Times as illegitimate? If he’s illegitimate then any vote – pro Roe or anti or in between – would be similar illegitimate. But we know otherwise.
    This is mostly sound and fury but not entirely.

    1. Yeah, they scream and moan and proclaim the end of the world everytime but even if I was a leftist I wouldn’t be that worried. If people were logical they’d understand that the thing they fear the most of overturning Roe v Wade would in and of itself barely affect most people’s day to day lives. Plus everytime it seems conservatives are going to get a majority some justice suddenly flips and becomes a raging prog. Souter, Blackmun, Stevens, has it every gone in the opposite direction? The Court should have been 9/9 rightwingers by now. So if you’re a rational leftwinger which I guess kinda is a contradiction things might not be as bad at least for this aspect of your life. But these guys are utterly delusional and detached from reality so its fun to watch them froth and roll around on the floor.

    2. Kavanaugh will be, after some massaging from Roberts, a moderate – a sort of “soft” Souter

      Not a chance. This will turn him into a hardliner, like Thomas.

  29. Reading (briefly) through the Politico Sympsium reinforced my belief as to the utter worthlessness of the letter signed by 291 law professors in protest of now Justice Kavanaugh. Nevertheless, I was struck by the comment of Michael Waldman, President of the Brennan Center. Waldman’s states, ‘I fear the country will reap the whirlwind.’ That is quite rich in that it was his lot that so ignobly sowed the wind during the confirmation proceedings. A better caption for him would have been, “I shouted out who killed the Kennedys.”

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