Supreme Court

A Possible Deal on Ginsburg's Replacement That Could Prevent Court-Packing

Simply put: Republicans agree not to vote on a replacement for Ginsburg until January; Democrats agree not to pack the Court.

|The Volokh Conspiracy |

The Supreme Court

Within hours of Supreme Court Justice Ruth Bader Ginsburg's passing yesterday, Senate Majority Leader Mitch McConnell indicated that the GOP-controlled Senate will vote on a replacement nominated by Trump before the end of this year. Critics will point out that this commitment is at odds with his position in 2016, when Barack Obama nominated Merrick Garland to the seat left vacant by the death of Justice Antonin Scalia,  and McConnell refused to hold hearings because, in an election year, the decision on who should appoint a new justice should be made at the ballot box.

McConnell argues that the difference between the two situations is that in 2016 the Senate was controlled by a different party from that of the president, whereas today both Senate and White House are controlled by the Republicans. I doubt that this politically convenient distinction will convince anyone but partisan Republicans.

Regardless, there are obvious incentives for the GOP to try to ram through a nominee before the clock might run out on the current president and Senate majority. If they succeed, they could transform the previous narrow 5–4 conservative majority on the Court into a much more secure 6–3 margin that could last for years to come.

But any such victory could easily prove to be Pyrrhic. It is very possible that the Democrats take the White House and Senate in this year's election while retaining control of the House. Biden is the clear favorite to win the White House, and the respected 538 model gives the Dems a 58% or more chance of taking the Senate,  as well. In almost any scenario where the Democrats control the Senate, they will also have the presidency and the House.

Should that happen in the aftermath of a last-minute GOP replacement for Ginsburg, the Democrats are highly likely to "pack" the Court by increasing the number of justices to counterbalance all recent GOP gains. In that event, the Democrats are unlikely to limit themselves to adding just one new justice (to offset the Ginsburg replacement). They would probably add at least three or four, in order to give them the majority they believe they were unfairly denied due to the "theft" of the Garland/Scalia seat, and the controversial confirmation of Brett Kavanaugh. If the Democrats are willing to pack the Court at all, they might as well go "whole hog." The political risk of adding three or four justices is unlikely to be much greater than that of adding one or two.

Up until now, left-wing pressure for court-packing has been blocked by such factors as opposition from Democratic nominee Joe Biden and Democratic moderates (crucial swing voters in any potential Democratic Senate majority),  and the Supreme Court's growing popularity. But that opposition is likely to crumble if the GOP forces through a last-minute nominee in contravention of the principles they themselves advocated in 2016. Even for moderate Democrats, that would likely be the proverbial last straw after what they regard as a long series of GOP misdeeds in nomination battles. Indeed, Democratic support for court-packing is gathering momentum even as I write these words.

Passing a court-packing bill would require breaking a filibuster.  But in these circumstances, the Democrats would surely be willing to abolish the filibuster for any bills involving the size of the Court (just as the GOP previously abolished it for Supreme Court nominations in 2017).

And if the Democrats pack the court in 2021 (or whenever they next get a chance to do so), the GOP will surely retaliate with more of the same, the next time they get a chance. As Biden put it, "We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all." The end result will be the undermining of judicial review as an effective check on government power—an outcome that both left and right will have reason to lament over time. Even if Trump is reelected or the GOP retains control of the Senate in 2021, the threat of court-packing will hang over the Court until such time as the Democrats do have the chance to act on it (which is highly likely to happen at some point in the next few years).

Is there any way to prevent this dynamic? I see at least one possible way to do it. The two parties can make a deal along the following lines:

  1. The Republicans promise not to confirm any Supreme Court nominee until after January 20 of next year, at which time whoever wins the election will get to name Justice Ginsburg's replacement.

2. In exchange, the Democrats promise not to support any expansion of the size of the   Supreme Court for at least the next ten years.

The exact details can no doubt be refined further. I am not wedded to these specific dates, for example. Ideally, court-packing would be permanently forestalled by a constitutional amendment fixing the size of the Court. But I doubt there will be the votes to do that.

But the basic idea is that Democrats get to force the GOP to stick to the same principles they advocated in 2016, and also get a chance to name Ginsburg's replacement should Biden win. For their part, the Republicans get to have a 6-3 majority if Trump wins, and maintenance of their current 5-4 SCOTUS majority (at least for some time) if he loses. Otherwise, they are likely to lose the majority whenever the Democrats get a chance to enact a court-packing bill. And both sides get to preserve the valuable institution of judicial review.

I am not naive enough to believe that this deal will be easy to push through. It certainly isn't going to happen merely because I support it! Among other things, there is a high likelihood that Trump and McConnell would oppose it, as would many Republican senators. But if an idea like this gets the support of the 47 Democrats, it would only require four GOP senators to go along with it, in order to prevent Trump and McConnell from forcing through a nominee before January. There are already at least a couple GOP senators with serious qualms about confirming a nominee this year. The prospect of a deal forestalling court-packing could increase the number to the point where there is a majority against confirming any nominee before January.

Similarly, if enough GOP senators carry out "their" part of the deal by preventing the confirmation of a nominee before January, we only need a few Democratic senators to ensure that their party doesn't renege on the commitment to avoid court-packing. A few moderate Democratic senators would be enough to block any such proposal. Moderate Dems already dislike court packing for both political (it tends to be unpopular) and principled reasons. Only the prospect of a 6-3 GOP majority achieved by the Republicans' violating their own self-proclaimed norms is likely to make them them change that stance. Should a deal avert that scenario, these Democrats (and perhaps even some more liberal ones) would have strong incentives to stick to its terms. In such a scenario, court-packing would likely be a highly unpopular and politically risky step for swing-state Democrats to support.

For their part, GOP participants in the deal would have an incentive to stick to it, because they have to "go first" to make it work at all. If they don't carry out their commitment to stop the appointment from going through before the election, the Democrats can simply renege on their promise to oppose court-packing later.

Like most plans put forward by academics, this one is far more likely to be ignored than enacted. But it can't hurt to at least try.

I have opposed court-packing for years, both when a prominent conservative advocated it in 2017, and when some on the left did so more recently. A deal like the one described above strikes me as the best chance to avert it in the sad situation that has arisen in the aftermath of Justice Ginsburg's death. Any real chance of success will require the support of people far more influential than me. But a journey of a thousand miles begins with a single step. Perhaps that step could even be a blog post.

UPDATE: I have made a few additions to this post.

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  1. 2. In exchange, the Democrats promise not to support any expansion of the size of the Supreme Court for at least the next ten years.

    when have the Dems kept a promise?

    1. I judge that enough Senate Democrats would honor this deal to make the court packing bill fail. To do otherwise would emphatically surrender the moral high ground they now hold.

      This deal is aimed at the Senate as well as Trump. Biden would therefore have to state that if Trump tries to offer a nominee that fails that counts as the Republicans keeping the deal.

      -dk

      1. The problem as I see it is that neither side trusts the other, so any deal that doesn’t “get the money up front” won’t get agreement.

        There was a time when a Senator’s word was their bond, but that time has passed.

        Seems to me that the only way out of this dilemma is to hope the few R Senators who are not 100% in thrall to Trump will cause any pre-January nominee to fail. Not holding my breath…

        1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new… after 4 years it was so hard to quit my day job but now I couldn’t be happier.

          Here’s what I do…>> CashApp

      2. But how is that REALLY a deal?

        “Do what we want, or else we’ve violate norms no one has actually violated in over 100 years, and pack the Supreme Court with our members”

        That’s not a deal. That’s a threat. That’s holding a proverbial gun to the other party’s head and saying “Do what I want or else”. That’s more destructive to the nature of our government than anything Trump has EVER proposed.

        Is that right? Should this type of thinking actually be supported?

        1. A Trump-fellating conservative worried about norms?

          Here’s how this should go (largely consequent to the currently intense partisanship and polarization):

          (1) Republicans should do as they wish while they have the votes to do it.

          (2) Democrats should respond with some good old-fashioned Irish foreplay*, beginning as soon as they have the votes.

          * A two-second head start commencing with ‘brace yourself, Kathleen!’

          1. Interesting you choose to hack on the Irish, when they too were on the “No” list with Blacks and dogs.

            1. It came from a movie — or perhaps television series — I no longer recall.

              Always good to remember the successive waves of immigrant-bashing bigots whose political heirs are today’s Republicans, though.

              1. I know that it’s the weekend, and that you’re focused on corralling the pudgy alter boys in your living room, but that response was just lazy.

                I hope they sew you up in a burlap sack, beat you with your own furniture, dump you in the Potomac, and let the snakeheads turn you into silt.

              2. Arthur: Why do you insist upon calling people bigots? Is that the extent of your intellect? Were you the kid who yelled insults at people before running away like a coward? You casual insults are obnoxious and unnecessary, beside exposing you as someone to be dismissed rather than respected.

              3. The bigots are still the Democrats, just as they have been for over a century. The only thing that is different now is that they want lots of unschooled immigrants coming in who they can scam into supporting them (just like Boss Tweed greeted the Irish with soup for votes).

          2. “worried about norms”

            Yes. Norms are part of what keep our society together.

            Your way Arty, would destroy the country. Packing the SCOTUS means that the judicial branch can no longer operate as an effective 3rd branch of government. In many respects, the Constitution would become effectively meaningless, when you can put whoever you want in to “judge it” the “correct way”

            1. The country will be fine. Even better, most likely.

              Just a little less bigoted and backward.

              1. That’s not how packing the court works Arty.

                You pack the court this term. Next time you lose the election, your opponent packs the court the other way. Then you win the next election and pack the court further.

                Eventually the judiciary loses any semblance of independence, and just becomes a rubber stamp for whoever is ruling at the time. It’s happened over and over again, in multiple countries. Venezuela is just one of the most recent examples.

                1. “Next time you lose the election, your opponent packs the court the other way.”

                  I look at Republican electoral prospects in modern and improving America and declare that a risk I am prepared to accept. After November, the Democrats seem as likely to lose to a Constitutional Party or Conservative Party as they are to lose to the Republican Party in the near to medium term.

                  The confluence of (1) Republican bigotry in an improving America and (2) demographic evolution of our electorate makes me content.

                  1. The fact you think Republicans are bigots speaks much to your derangement. Meanwhile the Democrats are professing outright racism in their policies in order to get elected and you continue to call it “progress”.

                    1. You’re wasting your time. Arty is a zealous idiot.

                    2. So,the party you claim is not bigoted chooses candidates based on color and sex. Hmm, yup not bigoted.

                  2. You’ve said the same thing before Arty, and been wrong. You’re asking for a one-party dictatorship.

                    If your justification for extreme measures is that “you don’t think the other side will get a chance to use them against you”, then you know the measures are extreme.

                    1. I expect a better political competitor to replace the Republican Party … or that party to improve so much it is barely recognizable. A safety valve to address Democratic Party mistakes and excesses will and should develop.

                      The gay-bashing, xenophobia, belligerent dogma, racism, disdain for science and expertise, hostility toward modernity and successful communities, and several other attributes of the current conservative electoral coalition will continue to fade from American relevance, however, one way or another.

                    2. And if your expectations are wrong Arty?

                      You’ve been wrong before. What if you’re wrong again?

                    3. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new…ESd after 4 years it was so hard to quit my day job but now I couldn’t be happier.

                      Here’s what I do…>> CashApp

                  3. I look at Republican electoral prospects in modern and improving America and declare that a risk I am prepared to accept

                    IOW, you’re making the racist assumption that people will vote Democrat because they are minorities and immigrants.

                    You’re a fool. I’m a minority and an immigrant and I left the Democratic party a few years ago. We are figuring out that Democrats have done sh*t for us. Democrats have turned into a club of ignorant, wealthy elitist who want to enrich themselves at our expense. And the youth vote is figuring out how Democrats are squandering away their future.

                    Your thinking is stuck in the 20th century, Kirkland; you are what you like to talk about: an ignorant, bitter clinger.

                  4. In that case, Republicans should just nominate and vote for a new Justice now, since liberal dipshits like you will eventually overpopulate the nation anyway. Thanks for the advice.

                2. That’s not how packing the court works Arty.

                  You pack the court this term. Next time you lose the election, your opponent packs the court the other way. Then you win the next election and pack the court further.

                  Artie isn’t worried about that. He’s certain that, once he’s packed the Court, packed the Congress (with two new solidly blue states), given felons and 16-year-olds the vote, and mandated nationwide ballot harvesting, the Democrats will be as solid as they were in the South between the Civil War and World War II.

            2. With respect, Armchair, the SCOTUS has been operating as “first among equals” for some time now. Under the tutelage of RBG, the SCOTUS has simply created law out of whole cloth, thus rendering the intended function of the other two branches moot.

              Personally, I don’t believe even the Democrats are stupid enough to try to “pack the court.” Any fool can see that such a ploy would demand the same response from the other side with the end result being the seating of ever increasing numbers of judges…who never retire.

      3. What “moral high ground” do you think Democrats hold?

      4. Wait, you think the Dems have the “moral high ground”? The ones threatening to impeach a sitting President to prevent him from carrying out his constitutional duty to nominate someone to fill a Supreme Court vacancy?

        This gentleman’s agreement doesn’t even have a mechanism for enforcement. The Republicans would have to be completely retarded to agree to it. Which, of course, means they’d probably agree to it.

      5. “Moral high ground,” that’s rich. Both parties are solidly locked at a fairly level morality pit. And it’s really, really deep.

        As someone who detests the two mob-like parties, the court-packing interest is the Democrats saying: “let’s change the rules of the institution, the only reason being to ensure we have given ourselves permanent power.” (At least they have the pretense with the NPV initiative that it’s for the benefit of “democracy.”) Does anyone other than an ideologue think this is at all healthy or sane?

        No, do not trust any word coming out of these peoples’ mouths. Your individual rights will be gutted if this nonsense is allowed to continue.

        The court packing would put us clearly into the real of “a long train of abuses and usurpations” that the Declaration of Independence tells us we must handle. (Eh; we’ve already apathetically been on that train for way too long.)

        Anyone who doesn’t see this as an abuse of power is a self-righteous authoritarian who wants to force their version of “morality” on everyone else.

    2. That was my first thought. When Bush’s nominees were blocked by filibuster, many conservatives pushed to the “nuclear option” of removing the filibuster rule. Principles conservatives refused. They said that both sides had abided by this rule and changing it would eventually give the other side too much power. We ended up with a bi-partisan Senate compromise to get most of Bush’s nominees through.

      When Obama’s nominees were blocked by the same filibuster rule, the Dems went with the nuclear option and killed the filibuster for all appointments except for SCOTUS. The principled stance taken under Bush accomplished nothing. The Dems had no interest in continuing a compromise solution. The Repubs has passed up the nuclear option for nothing.

      Trump came along, and the Repubs said “screw it” and killed the filibuster for every appointment and ignored howls of “no fair” from the Dems.

      Why in the world would they EVER trust the Dems to stick to an agreement now?

      1. You can’t keep fighting with knives once the other side brings in guns. Democrats finally had to start using guns.

        The trouble started with unprovoked and unprecedented Republican obstruction during the Clinton Administration. So many judicial vacancies piled up that even Rehnquist complained about it.
        https://www.cnn.com/ALLPOLITICS/1998/01/03/judicial.vacancies/

        1. I seem to remember Ginsburg being confirmed with a 93-6 vote.
          Obama’s appointees doing nearly as well.

          Yet for the Republican nominees….

        2. Unprecedented? “Borked” became a verb in the 80s because of Dems actions.

          1. Actually, it became a verb because of Republican actions. Six Republican senators joined the Democrats to vote done his confirmation to the Supreme Court.

            1. Gorsuch’s and Kavanaugh’s votes show McConnell did nothing unprecedented in 2016 and in fact he simply prevented an unnecessary hearing with Garland. Republican senators didn’t have to vote to confirm Garland.

            2. 6 Republicans and 52 Democrats voted against Bork because Kennedy gave a hallucinatory fantasy of a speech that was entirely fact free and it became the first of the Democrat Hoaxes. They like to invent nonsense then run against it. The Republicans in very close districts wanted to curry favor with the Dems and they knew Bork would lose no matter what they did. It was a Democrat Senate, after all.

            3. The Democratic votes against Bork were by themselves enough to sink his nomination. “Republican actions” were inconsequential.

              But if you want to play that game, you must admit that passage of the Civil Rights Act of 1964 was the result of Republican actions, because the Democrats didn’t have nearly enough votes to pass the bill by themselves, and needed at least five Republican senators and 55 Republican representatives. As it was, they got 27 Republican senators and 136 Republican representatives. (In fact, a greater percentage of Republican than Democratic members voted for the bill.)

          2. Bork was an awful choice for the Supreme court. A bi-partisan group of senators rejecting the nomination was the system working.

        3. The judicial confirmation wars predated Clinton. Robert Bork would like to have a word with you.

          1. Bork got a hearing and a vote.

            He was a poor choice and was rightly rejected.

            1. Yes Bork was a milestone in legislative partisan viciousness. Dems had 52 votes against after a hysterical fantasy of invented issues. 6 Republicans went along because of local politics in their close districts. Rarely did politics enter into Supreme Court nominations before then. Presidents nominated someone they wanted and if he wasn’t a criminal the Senate confirmed them. Dems poisoned that process and here we are.

              1. 6 Republicans went along because of local politics in their close districts.

                I don’t know about the other five, but John Warner of Virginia had a safe seat, so his no vote on the Bork confirmation can only by his personal malice.

        4. No! The trouble started in the 1980’s, when Democrats introduced bottling up judicial nominees in committee, partisan filibustering (which expanded during the George W. Bush administration), and even character assassination.

          Democrats continue to claim that Republican led the way on political hardball for judicial nominations — and they may even believe it — but it’s just not true!

        5. Wow, sounds like they got Borked!

      2. BikeRider,

        You are misconstruing who broke the bipartisan deal. The deal was the minority would not filibuster Circuit Court nominees, except in extraordinary circumstances, and the majority wouldn’t invoke the nuclear option. The Dems abided by the deal.

        Republicans then filibustered (denied cloture) on 36 Obama nominations, more than any other President and more individual nominees than all previously filibustered nominees by all prior Presidents. This was a violation of the deal. So the Democrats threatened exactly what Republicans had threatened to get the deal. The Republicans could have allowed cloture and not filibustered Obama nominees and Dems wouldn’t have gone nuclear. The Republicans saw political advantage in forcing the Dems to go nuclear (whereas Dems under Bush had prioritized the integrity of the system).

        So Dems had no choice. Either keep letting Republican nominees through, as they had with Reagan, Bush, and Bush, while Republicans obstructed during Clinton and Obama years and let the Courts be packed with conservatives, or go nuclear. You can’t keep bringing a knife to gun fights.

        Republicans broke the deal. Republicans can’t be trusted. Just like they were lying on Scalia’s replacement, that they were following the Biden rule, they were just playing power politics. It is what present day Republicans do. Democrats have to respond in kind or they lose. They are tired of losing these judicial battles.

        There will be hell to pay for the country if the Republicans don’t follow the (stupidly named) Biden Rule. They set the standard (much as under Bush). If they again fail to live under the standard they set, Democrats have no real choice but to do whatever they have the power to do. In this case, add some Justices. Let’s please don’t play this game. It will be bad for the country.

        Wait until January 2021 to confirm the next Justice.

        1. Lame post hoc justifications like this will be offered the next time Democrats break their word too. And every time.

          1. Oops. I meant to reply to NOVA, not Ben. Sorry Ben.

          2. Republicans made a deal and, when sides were switched, they broke it and forced Democrats’ hand on the nuclear option. So, are you really suggesting that you would respect the Democrats if they let Republicans filibuster the Obama nominees? No, the Democrats threatened the nuclear option just like the Republicans did. Unlike the Democrats, who made a deal to let the nominees through, the Republicans offered no such terms and attempted to call the Democrats’ bluff.

            This is not a heads Republicans win, tails Democrats lose world. Republicans are the ones being inconsistent. They are the ones pushing past norms and breaking deals. This is going to be one more example.

            That you have no substantive response says everything.

            1. Yeah, whatever. That’s what we will hear the next time too.

              1. Again, you avoid discussing facts, just sticking with your confirmation bias. It’s Republicans threatening to do exactly what they said was improper when it wasn’t to their advantage. The fact that you want to believe they have the high moral ground on this one, doesn’t make it so. Republicans are the hypocrites here.

                1. Ok. Who cares? Expecting Dems to keep a promise is dumb. Everyone here seems to agree on that except maybe Ilya.

                  1. Ben,

                    You just keep ignoring facts to repeat your mantra. It’s the Republicans who are the faithless hypocrites here. Everyone agrees on that. Just ask 2016 Lindsay Graham.

                    1. I didn’t even read your partisan reasoning. There will always be enough partisan reasoning to undo any agreement. And partisans will finger-point and argue it’s the others’ fault.

                      I don’t care. And partisan charges of hypocrisy are extremely lame. Hypocrisy is the world’s most normal behavior.

                    2. Ben,

                      You just prove you lean into confirmation bias and avoid looking at or discussing facts. You are the problem with America in 2020.

                    3. “facts”. You guys think arguing something to your own satisfaction makes it true.

                    4. Ben,

                      You think making a mere assertion is sufficient. I did raise facts, specifically the fact that Republicans are the ones who have broken their word.

                    5. I got that. It’s partisan blather. Are you really that naive to believe that sort of partisan finger-pointing talk is meaningful? It isn’t.

            2. That’s absurd. “Making deals” isn’t part of our system of government. Each representative has a duty to vote according to their own best judgment. Many representatives weren’t even party to the “deals” that you want to hold them to.

              That’s also why Republicans shouldn’t trust any “deals” Democrats offer now.

              If you want to make a deal, pass a law or a constitutional amendment. Limiting the numbers of SCOTUS judges to 9 by law might be a good start.

              1. I’ve been suggesting this for some time, along with term limits (one 18 year term, period), and each administration being able to name a given number (2) justices. Vacancies to be handled as senate seats are: filled for the remainder of that seat’s term only. And some sort of poison pill to force the senate to vote on the abilities, not the politics, of the nominee, in a reasonable period. I’d also have Chief Justice be a position that each justice holds, in turn, in the *middle* of their tenure (they’re gonna have to go back to being ‘just a justice’ for the second half of their term).

                1. Another option would be simply to draw SCOTUS judges randomly from the federal bench every year.

                  In fact, separate election of cabinet members and a rotating presidency among them (similar to Switzerland) might be another good idea.

        2. You and I are going to interpret history differently, but I agree that the next confirmation should wait until January.

          I suspect that you and I also agree that the Garland nomination should have proceeded. I lean conservative, but he was a remarkably moderate candidate and not extremely young. I thought that his nomination was a bit of a peace offering by Obama. Others see it differently.

          In my dreams, I hoped that Trump would act like a grownup and renominate Garland.

          1. The confirmation won’t want till January. In fact, after thinking about it further, it won’t even wait till the election.

            The real issue is this. This upcoming election with the COVID issues and mail issues is going to be very contentious. I can already see a lawsuit over PA’s mail in ballots that come in after the legal deadline going to the SCOTUS. PA’s Supreme Court just didn’t listen to the law as written, and basically wrote new regulations there.

            Because of this, there’s a very real chance that the SCOTUS will, in some way, decide the 2020 election. And it would be foolhardy of Trump not to have another appointee on the SCOTUS in case that would happen. That really the core of it.

            1. ” it would be foolhardy of Trump not to have another appointee on the SCOTUS in case that would happen.”

              You’d think a SCOTUS -RBG would be all the advantage needed if partisan associations in the Court were reliable.

              Meh. If Mitch piledrives a nominee through, all they might get for it is another opening to fill, as the nominee resigns from their current bench to accept promotion to SCOTUS, then gets impeached and removed in February. Biden would be the one filling that seat, barring absolute catastrophe.

              1. You’re going to impeach a SCOTUS judge on what grounds? Because they were nominated and confirmed by the opposite party? That’s kinda nuts. Impeaching a judge because they were confirmed when the other party was in power.

                Why wouldn’t the GOP return the favor on that next time they’re in power.

                1. Let’s also not forget that Pelosi is threatening to impeach Trump and Barr if a new justice is nominated.

                  Not for any actual reasons, mind you, but because Dems now view the filibuster as a super-duper “we are super mad at you” provision.

                  I guess this isn’t breaking an agreement as nobody really thought a party would view impeachment as just a way to say “Hey, we’re mad at you”, but here we are.

                  No info as to why Barr would be impeached since he has, literally, zero to do with nominations and hasn’t actually done anything improper.

                  1. Democrats must think American voters are all idiots.

                    This kind of conduct by Democrats is going to make them look unhinged and cost them votes.

              2. Removing an associate justice takes 2/3 of the Senate. Won’t happen.

                -dk

                1. Considering how they have all mutilated clear, plain, unambiguous language, don’t count on that being a barrier.

                  1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new…MGf after 4 years it was so hard to quit my day job but now I couldn’t be happier.

                    Here’s what I do…>> CashApp

              3. as the nominee resigns from their current bench to accept promotion to SCOTUS, then gets impeached and removed in February.

                Yet another entry on the long list of truly pants-on-head stupid things that you’ve said here.

          2. I absolutely agree about Garland. He was moderate and should have gone through. With that standard (no election year confirmation) being set, the Senate should act accordingly and wait until after January 20, 2021 to take up the nomination for Ginsburg’s seat. Otherwise, it is just a declaration of war, that whoever has power should exercise it to the fullest extent they can, norms and prior agreements be damned.

            Trump would be acting like a grownup to nominate Garland who is remarkably moderate and not at all young. It would do a world of good for the Court and its legitimacy and take down the temperature substantially. And conservatives would still have their majority and the youngest members of the Court to boot. But I suspect today’s Republicans want it all. Which will mean war. Which is bad for all the rest of us.

            1. “But I suspect today’s Republicans want it all. Which will mean war. Which is bad for all the rest of us.”

              I expect the debates and changes to be rousing and profitable.

            2. “Trump would be acting like a grownup to nominate Garland who is remarkably moderate and not at all young. It would do a world of good for the Court and its legitimacy and take down the temperature substantially.”

              After what was done to Kavanaugh, fuck “lowering the temperature”. The Republicans gained the Senate in 2014 to oppose Obama. They did so. They gained a larger majority in 2018. They should use what the voters gave them.

              1. Did you cry about the ACA like so many Republicans?

                2010 GOP: “How dare the Democrats pass and sign a law after winning both houses of Congress and the Presidency! They did it with a bare majority!”

                2016 Republicans: In a Presidential election year, we should wait on SC nominees until January of the following year because we have a bare majority of one house of Congress and can do it.

                2020 Republicans: In a Presidential election year, we have an obligation to push through an SC nominee while people are voting for the next President, because we can do it.

                I am just going to assume you weren’t a 2010 Republican and that you will not cry if and when use the power voters give them to do whatever they want within the confines of the Constitution.

                1. Hey, the Dems shoved ACA down GOP throats. Good for them.

                  Turnabout can be a bitch.

        3. NOVA Lawyer — “Republicans broke the deal. ”

          No they didn’t! The deal was limited to the 109th Congress and both Republicans and Democrats honored it.

          Go read the text. I’ll wait. You can find it on Wikipedia and elsewhere.

          The nuclear option was passed by the Democrats, under Harry Reid, during the 113th Congress. There was nothing /in principle/ to keep another “Gang of 14” (or whatever) from devising a similar agreement, but it never developed.

          1. Pox,

            Your point is correct that the deal was limited to the 109th. But what you are missing is that BikeRider used the 109th Congress deal to argue that Democrats were unfaithful to the deal, but the Dems honored the 109th deal in the 109th.

            Ergo, his argument was that the principles of the deal should have continued past the 109th. I was responding to that. And the Republicans broke faith with the spirit of the Gang of 14 deal. And, yes, the Republicans could have brokered a similar deal during Obama’s term, but they chose to give Democrats the option of invoking the nuclear option or continuing to have Obama’s nominees filibustered in unprecedented (literally, unprecedented) numbers. That is the context in which I said Republicans broke the deal first.

            You are right, there was no binding obligation on either party pursuant to the text of the 109th. But the principles, the side with the votes won’t invoke the nuclear option, the side with the votes to filibuster will only do so in “extraordinary circumstances.” The Republicans filibusters to an unprecedented degree, that gave freed the Democrats, in principle, to invoke the nuclear option.

            But you knew this was the context of the conversation. You just don’t want to admit Republicans set out principles in the 109th, then broke them as soon as those principles didn’t advantage them any more. That is exactly what they are trying to do now. The Republicans are the ones with no honor or consistency.

        4. This was a violation of the deal.

          It couldn’t have been a violation of the deal, because the deal by its own terms had expired in January 2007.

          Also, there were not 36 filibusters. You’re making the mistake of counting every filing for cloture as if it were a filibuster.

          But I agree that if McConnell rams through a nomination, Democrats will be forced to expand the court. Which will be destructive. And McConnell should therefore not do this.

          1. It should also be noted that it was not a deal between the Democrats and the Republicans, but between 14 specific individuals.

          2. Forced? Will somebody have gun to someone’s head? Or, can we expect the legislative body to act like adults, not pre-schoolers? If the tables were turned, would we not now be discussing the Democrats quite sensibly planning on nominating a SCOTUS justice, and the GOP being upset, but likely not the threats of violence or court-packing?

            1. Hank,

              Are you serious? Were you not around in 2009-2010 when the ACA was passed by a Democratic Congress and signed by Obama? Were you not around in 2005-2007 when Republicans used the threat of the nuclear option to push through judicial nominees? Or in 2009-2013 when Republicans filibustered/denied cloture to 36 judicial nominees, as many nominees as had been filibustered/denied cloture from 1967 to 2009?

              When Republicans act like adults and choose the good of the country (which includes sticking to their own professed principles) over their own partisan interests, then Democrats can do the same. But as long as Republicans use every tool at their disposal to get their way, don’t whine and complain about “threats” when Democrats use every tool at their disposal. Either we have norms and follow them or we don’t. Republicans in 2020 need to check in with Republicans in 2016 to avoid this becoming all out partisan warfare over judicial nominees.

          3. “But I agree that if McConnell rams through a nomination, Democrats will be forced to expand the court. Which will be destructive. And McConnell should therefore not do this.”

            He will “force” them to do it?

            Are the Dems lacking any semblance of personal responsibility for their chosen actions?

            1. They have two options: Let Republicans get their way through dishonorable power politics or respond with whatever Constitutional means they have. The first option is not really a viable one, so, in a colloquial sense, the Democrats’ hand will have been forced. Much like Republicans denied 36 nominees the vote during Obama’s term forcing the Democrats to either accept continued rightward tilt of the courts through foul means or exercise the nuclear option.

              Republicans may be able to sell it to their base, but we know from 2005-2007 that Republicans would do the same, except Democrats played the adults and accepted a reasonable compromise that gave Republicans pretty much what they wanted: votes on the vast majority of Bush nominees.

              1. So, your answer is no…the Democrats have no personal responsibility for their actions.

                The Democrats were “violating norms” by the truckloads then. C’est la vie.

              2. “Let Republicans get their way through dishonorable power politics”

                You’re a child.

        5. Except that “all prior presidents” part is misleading since records on denied cloture aren’t available before late 60s. There is a fact check you can Google about your claim.

          1. My apologize. I could have sworn I saw that and fixed it to say since 1967. Maybe in another post. At any rate, you are right. It absolutely isn’t every other President, just all filibusters/denial of cloture since 1967.

            The substantive point remains. Obama’s nominees were obstructed at a rate far higher than Bush’s nominees or any President since 1967, at least. And this after Republicans whined about denials of cloture/filibusters during Bush’s term and threatened to go nuclear if Democrats didn’t “play fair.”

            Republicans have been consistently hypocritical on judicial nominees.

        6. No. You list your own points as fact, while they are simply events free of context. While you assemble your supporting documents, we will proceed with nominating and voting. No crying!

      3. The democrats have to be destroyed. They are now ruled by radical marxists like Sanders, AOC, and others who are even worse.

    3. Exactly. When have they ever kept a promise?

      1. It was “filibuster reform” when Democrats nuked it in 2013. Their tune changed by 2017 when none of the “reformers” supported “reform” any more.

      2. The “they” obviously refers to Republicans who made the deal to avoid the nuclear option to get their nominees through, but then promptly engaged in the obstruction they so recently decried and, for bonus points, cried about it when they forced the nuclear option (as they had shown they would have done absent a deal).

        Republican Senators could have given Democrats the same terms to get Obama’s nominees through, but they obstructed at unprecedented levels. Again, 36 nominees were prevented from getting a vote under Obama. From 1967 to 2009, only 36 nominees had been prevented from getting a vote. It was unprecedented and violated the very norms the Republicans had complained about mere months before in threatening the nuclear option. Republicans broke their word and the norms. And this is likely to be one more time they violate their word and their norms. I hope South Carolina’s voters do hold Lindsay Graham’s words against him, as he himself hoped in 2016.

        This dishonesty and blatant grabs for judicial power needs to stop or those duplicitously escalating the war need to be held to account.

        1. This could become a VERY interesting time to work for the US Secret Service.

    4. Why would the democrats agree to disarm unilaterally? Especially in this age in of realpolitik.

      Would a packed court be all bad? The Ninth Circuit Court of Appeals has 29 members. Maybe the SCOTUS could go to a panel-en banc model like the circuit courts of appeal?

      1. Why would Democrats agree not to go to war against Americans unilaterally?

        1. Most Americans want Democrats to call the shots and our half-century=plus of liberal-libertarian mainstream progress to continue.

          1. The only reason to rush through a nominee is because you think you’re going to lose the Presidency and the Senate.

            1. It’s insurance against a bad outcome. They have to protect a America from the progressive agenda.

            2. Not true, JP; better the sure thing than the hope.

          2. Kirkland, it doesn’t matter how many times you use the term liberal-libertarian, the future you want the nation to progress toward is authoritarian, if not totalitarian.

    5. This is the classic “heads I win, tails you lose” deal that Republicans have been falling for since Reagan. It isn’t even the visceral hatred that we have for F.U. Schumer as that we remember the Kavanaugh hearings where even Lindsey Graham said the Dems couldn’t be trusted.

      Schumer ought to be disbarred for his “reap the whirlwind” speech (and might be: https://nlpc.org/2020/08/05/new-york-sweeps-schumer-bar-complaint-under-the-rug-appeal-filed/), were sure as hell not going to trust the schmuck.

      Let the Dems try to pack the court — their victory won’t be considered legitimate and they will destroy any remaining scintilla of legitimacy with this. It’s been 9 justices for 151 years, more than half the life of the country, and if Joe Sixpack even knows how many are on the court, it’s nine.

      Sure that’s not in Article 3, but neither is Judicial review — nor is precedent and imagine Trump coming back in 2024 with a promise to appoint thirty more justices — and doing it.
      But court packing wouldn’t last beyond 2022 when (like in 1994) the GOP takes the Congress and they just impeach the three “illegitimate” justices, and President Harris as well.

      It was the Dems who established that impeachment can be political…

      1. “where even Lindsey Graham said the Dems couldn’t be trusted”

        Be serious. Lindsay Graham who said hold his words against him….you must be hoping he will join the Democrats in blocking any nominee to the SC until after January 2021. Otherwise, you know you are citing the word of a man whose word obviously can’t be trusted. (Also see Graham on Trump….first stating the obvious that Trump is unfit for office, then becoming one of his key boosters……it’s just weird as well as dishonest. What is going on with that?)

        1. You are going to be seeing more of Sen. Graham’s before-and-after poses in campaign messages.

      2. “imagine Trump coming back in 2024 with a promise to appoint thirty more justices — and doing it.”

        And Mexico will pay for it. No wait, the extra justices will go away by themselves when the weather starts to get warmer. No wait, he has an even better healthcare bill “ready to go” but it’s secret.

        The real worry is that the Republicans will learn from Trump’s defeat and nominate an actually capable candidate for President next time around.

        1. Keep fantasizing Pollock.

        2. Capable! Still the tears flow, 4 years after Hillary’s heartbreak! The pain, the abject emptiness!

    6. I would never believe one of their promises. If they were trustworthy they could be trusted to report the news.

      Do Democrats even have policies besides getting revenge on one of the many, many categories of Americans they hate? I remember 20-30 years ago they used to want to help poor people at others’ expense. Gradually poor people were forgotten and it became 100% about getting back at others.

      1. and their legal plunder.

      2. Do Democrats even have policies besides getting revenge on one of the many, many categories of Americans they hate?

        Yes. Are you incredibly stupid? I dislike most of what Democrats want, but they have very very detailed policies.

        In contrast, the 2020 GOP couldn’t even come up with a platform for their convention, and of course Trump himself famously has failed on multiple occasions to explain what his goals for a second term would be.

        1. I don’t believe you dislike anything the Democrats want.

          1. I’ve been commenting here quite some time.

            I guarantee you that DMN is opposed to most Democratic policies.

            1. Your guarantee is worth so much too!

        2. Agreed w/ HS, name what you dislike on the DNC platform, unless you mean you prefer the progressive party platform. In any case, both party’s platforms hinge on maximizing perceived victim status, calling Trump names, and what are described as goals and policies but are neither as they are vague and means to accomplish or fund are not given.

          1. Platforms are fantasy documents. Might as well talk about Batman vs. Superman.

    7. When? The next time will be the first time, and I’m not holding my breath.

    8. Trusting Democrats, how Neville Chamberlain.
      Win the Presidency, House and Senate, pass an Amendment to limit the size of SCOTUS to nine and repeal the 17th Amendment.

      1. I hope sane Republicans do wait, that Democrats take the WH, Senate, and expand their lead in the House, and then pass an amendment setting the Court at 9 members.

        Or, if Republicans do force through a nominee before Jan.2021, WH and Congress and threaten to pack the Court unless the Republicans agree to a plan where:

        1. Current Justices serve for life because the Constitution.
        2. Future Justices serve on the SC for 18 years, but can “retire” to the Circuit of their choice for the remainder of their life. (This way, ever Presidential term, there are two replacements. It is regularized and depoliticized to some degree).
        3. Start adding Justices every two years beginning in 2025. (So the Court will expand for awhile, but in a regularized way and will then slowly return to 9 as current Justices retire/leave.)

        If the Republicans won’t accept that deal, well, it’s war.

        1. The 18-year thing will also stop the push for ever younger SC Justices to maximize return on investment. That isn’t a good way to run the highest Court in the land, though it is a rational response to the current rules.

        2. So, your proposal is to threaten the GOP with an unprecedented court-packing scheme unless the Democrats get their way?

          Is that really your view? That packing the court is an entirely reasonable step if your party doesn’t get to nominate and confirm the SCOTUS nominees that you want?

          1. I oppose threats in this context.

            Republicans should do their damnedest while they have control.

            They also should prepare for the consequences of losing that control, which will involve a motivated and holding-the-cards Democratic Party.

            1. Under that rationale Arty, the Republicans should pack the SCOTUS RIGHT NOW, in order to rule that Trump wins the election. No matter what.

              Is that your view?

              1. Republicans will barely have enough to fill this opening, they couldn’t pack the Court right now if they wanted to. And, obviously, they do. The likes of Mitch McConnell have shown no principle of good government they won’t violate to gain more power and partisan advantage.

                1. “And, obviously, they do.”

                  The GOP has had control of the Senate and Presidency for 4 years. They’ve shown no serious desire to pack the court. Your assumptions are incorrect.

                  1. They have not had the votes to pack the Court in any of those years. They have switched positions on whether to confirm a Justice in an election year in order to first get the Scalia seat and then the Ginsburg seat, so, if they succeed, will have effectively shifted the composition of the Court through hypocrisy and blatant power politics.

                    Likewise, they switched positions on filibustering nominees from Bush (threatened nuclear option to overcome filibusters, after having upped the ante against Clinton’s nominees) to Obama (decried the nuclear option as a response to 36 filibusters, but didn’t make a deal to let the nominees through to avoid the nuclear option). They again showed rank hypocrisy by switching positions opportunistically. Democrats were following Republicans, not leading. Republicans were the ones playing blatant power politics instead of confirming qualified nominees as they were presented.

                    There is every indication that if they had the power to do so and needed to do so to get the decisions they want, they would pack the Court. But, yeah, they haven’t had to to get a majority. But they have never followed principle where it conflicted with their partisanship.

                    1. Yet Democrats with a hypothetical thin majority in the Senate would have the numbers to pack the court? You don’t think that someone like Joe Manchin might vote against that? Let’s be realistic here. Court packing schemes are nothing more than a progressive fantasy.

                    2. It definitely depends on the majority they muster in November. There’s a non-negligible chance of a 54-46 Democratic majority with a Vice President to break ties. It’s unlikely, but possible.

                      Again, I think Democrats should push for an Amendment that would regularize Court appointments to one every two years (starting in 2025) with an expansion of the Court during the lives of the current Justices and a return to 9 as they die out. Conservatives should go along because they keep a 5-4 advantage until 2025 at least and this is better government. All Democrats really get is better government and, I guess, keeping it from becoming either a 6-3 Court or a 7-6 Democrat-appointed majority with the blowback that would result.

                      The composition of the Supreme Court should not be made by the drawing of lots, which is essentially what has happened now that Justices tend to strategically retire, so that ideological changes occur only by the random misfortune of an untimely death. No one thinks that is good government. Elections should determine appointments, not randomness.

          2. The plan I outlined actually leaves the Court in Republican control. So even that isn’t Democrats getting their way. No, I say the Republicans should uphold the principles they espoused (however disingenuously) in 2016. If they don’t, Democrats should be less opportunistic, but should use their power to force changes that will prevent these games in the future as Republicans can’t be trusted.

            Or the Democrats should just use their power the way Republicans are. But I prefer they use their power to make the SC nomination/appointment process better and less partisan, rather than (as Republicans) only seek to gain maximum partisan advantage (thereby weakening the Court and, with it, respect for the rule of law generally). But if they just seek partisan advantage, that’s just following the standards Republicans have set.

            1. Your plan is a threat. A loaded gun, not a compromise. Effective terrorism. Do what we want or else we will blow up the entire system.

              That’s wrong. Packing the court is what leftist dictators in Venezuela do.

              1. It’s compromise. Pretend what you want. If Republicans will exercise every power they have to get the result they want (nuclear option on SC nominees, for instance), then Democrats are entirely justified to use every power they have to get the result they want. The difference is, I have suggested that they use their power to prevent future manipulations of the Court by either party.

                If Republicans are going to go Venezuela with pure power politics, then why should Democrats roll over and accept the loss? Nope. If it is win by any means, then it is win by any means. Which is a terrible and dangerous path that sane people from both parties should oppose. It only takes four sane Republicans to stop the insanity. Let’s hope there are four Republicans with a modicum of integrity and concern for the country left.

                1. Compromise is not having terrorists hold a gun to your head, saying “give me what I want, or else I shoot you” and you give in as a “compromise.”

                  That’s giving in to terrorists and people who would destroy the fabric of the country to obtain their political goals.

                  1. “That’s giving in to terrorists and people who would destroy the fabric of the country to obtain their political goals.”

                    I assume you are talking about Republicans and their government shutdowns. We are talking about choices about the composition of the Court that are well within the Constitutional authority of the various players to make.

                    Republicans had that authority to deny Garland a vote for nearly a year and they did so despite the damage to the system it caused. They may have the power to push through a replacement for Ginsburg during the last month of a Presidential election or in the lame duck session after an election and they seem intent to do so, despite the damage to the system this dramatic reversal and hypocrisy will cause.

                    If Democrats gain the power to add more Justices, after Republicans have used their every power (in contravention of norms, then in contravention of those newly established norms) to change the composition of the Court, why shouldn’t Democrats use their lawful powers to change the Court?

                    It is not terrorism to simply use the tools at your disposal to undo changes made by the other party using the tools at their disposal. Or, as I suggest, the parties can agree to step back from the brink of this power politics madness.

              2. You – meaning Trump, Republicans & the Right – have a choice. You can go thru with this power grab, having no constitutional bar in your way. You can laugh about your hypocrisy, gloat over the anger your actions cause, and glory in your successful hardball.

                And the Democrats will end the filibuster and pack the courts, having no constitutional bar in their way. One week ago there was zero chance of any real action by the Democratic Party to expand the SCOTUS. If Trump and McConnell go thru with this farce it will become the party’s driving position with overwhelming support.

                So, yeah, whine about blowing up the entire system. Personally, I think you’re right; packing the courts would be bad for the country. But if I’m given no choice, I’ll support it. You, Trump & the GOP have a choice right now. Perhaps you should stop and think about what’s best for United States…

                1. Garland would have lost. The manner in which McConnell denied him a vote and the silly lie about why it was justified was new but nominees not getting a vote wasn’t new. Throwing away judicial review and the Court over that is insane. Dems can overcome Trump replacing RBG in Biden’s first term or by getting back to back terms based on average Justices per term and given the ages and leanings of current Justices.

                  1. “Garland would have lost.”

                    No, he wouldn’t have. If he would, McConnell could have held the vote.

                    “Dems can overcome Trump replacing RBG in Biden’s first term or by getting back to back terms based on average Justices per term and given the ages and leanings of current Justices.”

                    You are either not terribly bright or dishonest. Breyer (82) is the only Justice in his 80s so the only one remotely likely to retire during Biden’s first term (and might if Biden wins, probably won’t if Trump does). None are likely to die. The next oldest is Thomas at 72 and Alito at 70…both likely have at least a decade left on the Court. Biden won’t even get to replace them in a second term. So a Republican replacement of Ginsburg does change the Court substantially for at least a decade and the best the Democrats can hope is that they get to replace Breyer. Don’t pretend otherwise.

                    This is why a system where a new Justice is seated every two years and one is removed every two years (after an 18 year term) is the only long-term way I can see that avoids politicizing appointments and making each one so consequential. That, or add Justices so each Justice is less important (which I oppose, but it appears Republicans are going to leave Democrats with only bad options and that might be the least bad).

                    1. Average age of death for Justices is around 74 years and average age to leave the Court is 70. Thomas has been rumored to be considering retirement in the not too distant past. FiveThirtyEight says in 2026 the odds of all the conservative Justices being alive is less than 50%. Google this for their website:
                      “how-long-will-the-supreme-courts-conservative-bloc-survive”

                    2. Average age of death for Justices is around 74 years and average age to leave the Court is 70.

                      Ginsburg was 87;
                      Souter retired at 70 during a Democratic administration;
                      Kennedy retired at 82 during a Republican administration;
                      Scalia was 80;
                      Rehnquist was 81;
                      O’Connor retired at 76 during a Republican administration;
                      Stevens retired at 90 during a Democratic administration;
                      Powell retired at 80 during a Republican administration;
                      Blackman retired at 86 during a Democratic administration;
                      Burger retired at 79 during a Republican administration;
                      Marshall retired at 83 during a Republican administration.

                      So, for the last 10 SC justices to leave, the average age was 81 (give or take, I just took year of birth and year left Court for their ages). Is there a reason the numbers for the more recent Justices might be different than for all Justices going back to 1789?

                      Length of service was also considerably longer for these 10 Justices (roughly 25 years) than your stated 18 years. Do you see a reason for that? Various politicians have said aloud they want to appoint younger Justices precisely so they will be on the Court longer.

                      And for those that retired, which are 7 of the 10, four did so during an administration of a party different than that with appointed them. And two of those were Souter and Stevens who leaned liberal so retired during Obama’s term. One was Marshall who was in extremely poor health. In other words, Justices who retire, tend to do so during an administration who will likely appoint a Justice with a philosophy similar to their own. Don’t expect Thomas to willingly retire during a Democratic administration.

                      All of which to say: Your suggestion that Biden will get a chance to replace a conservative Justice is ridiculous. I suspect you know that, so not sure why you said it.

                      (And 2026 is well into the next administration which would be Biden’s second term, if that were to happen. Also the stats are based on average people in the population, not Supreme Court Justices with excellent health care available and would have changed in the past two years as a person who lives two years doesn’t lose two years of life expectancy. So, at best, you get a roughly 50 percent chance that one of the five conservatives will die by the end of the 2025-2029 Presidential term.

                      You said: Dems can overcome Trump replacing RBG in Biden’s first term.

                      Even your own stats show that is a very long shot.)

                2. “Personally, I think you’re right; packing the courts would be bad for the country.”

                  But you’re willing to threaten (or actually) do it anyway. Why? Answer that. WHY are you going to support something you view that’s bad for the country.

                  1. Why would they do something that’s bad for the country? Obviously because they care more about [other stuff] than about the country.

                    You can guess why, since they’ll never actually tell you. They sure seem to dislike many, many categories of Americans.

                  2. Because the alternative is even worse for the country.

                    Allowing one party to use their authority under the Constitution to politicize the Court without using your own authority under the Constitution to balance out their power games is bad for the country.

                    It is best if Republicans stick with the principles they espoused in 2016 and try to get Trump elected so they can replace RBG. If Republicans instead do what is bad for the country for their narrow political interest, they have left Democrats the choice to either acquiesce to the Republicans games or respond in kind.

                    I think the latter is reasonable. Democrats can’t be the only ones doing what’s best for the country. Republicans have to sometimes do something good for the country instead of just what’s good for them. But Republicans have abandoned that idea since, roughly G. H.W. Bush was punished for doing just that with a justified tax hike.

                  3. Armchair Lawyer : But you’re willing to threaten (or actually) do it anyway.

                    Uh huh. Piety is such a good look while you gloat over the ruthless hardball from your side. I’m going to give you some credit, Armchair. I’m going to assume you (like me) have thought the escalation of each side in the Judicial Nominations Wars was bad for the country – regardless of whose ox was being gored at any one time. But I also bet you supported your side despite those misgivings.

                    Well, time to chose. You escalate this time after Garland and their will be a response. It won’t matter the response is regrettable, just like it doesn’t matter that war means catastrophe when you must react to an attack. The Right is proud they look at politics like war. Well get out your history books and read-up on the unintended consequences of warfare. Then think about your choices here.

                    1. Precisely this, grb.

                3. ‘Given no choice.’

                4. It doesn’t matter what you support. It matters what Dems have the Senate votes to do. I’m extremely skeptical that a thin majority in the Senate and unreliable votes like Joe Manchin are enough to ram through a court packing scheme. On the huge assumption that the Dems manage to take the Senate and the Presidency, they have nowhere near the mandate they did in 1937, and FDR’s court packing scheme didn’t go through then. Why should it now?

              3. Packing the courts is what Republicans do.

                1. You need to learn the definition of court packing. Spouting off in this uneducated manner is a good way to have your viewpoint completely ignored.

          3. Is that really your view? That packing the court is an entirely reasonable step if your party doesn’t get to nominate and confirm the SCOTUS nominees that you want?

            It’s an unfortunate and awful, but entirely reasonable, step if the GOP’s position is that the GOP can appoint justices but the Democratic Party cannot appoint justices.

            The Garland situation, of course, was not that the Democrats didn’t get to appoint a specific person that they wanted, but that Democrats didn’t get to appoint anyone at all.

            1. You are either unaware of the fate of past nominees in final year of a President when Senate is held by the opposition or you are ignoring it because it makes your argument look silly. Six times the seat was left vacant in that situation. Three were confirmed after election but in favor of winning party. 1888 is the only one that led to a confirmation prior to the election. Destroying the Court over that history seems pretty unreasonable to me and I hope Trump loses in November.

              1. You cannot argue that it matters in any prudential way what party holds the Senate.

                This element factoring into the right’s arguments shows that all your rules and ruminations are actually eyewash and it’s all about might makes right. But you don’t want to pay the political price for being so nakedly grasping.

              2. You seem to have overlooked Anthony Kennedy, in which a Democratic senate confirmed a Republican nominee in the final year of a president’s term.

                1. Sorry, mistakenly flagged your comment.

                2. Exactly.

                  Also, the dishonest people trying to push this narrative always mess up the very narrow and specific wording they have to use to even come close to being accurate. Canon says:

                  You are either unaware of the fate of past nominees in final year of a President when Senate is held by the opposition or you are ignoring it because it makes your argument look silly.

                  Powell and Rehnquist were confirmed in the final year of Nixon’s first term by a Democratic Senate. (They were not nominated in the final year, but just barely.)

                  The situation rarely comes up and most of your examples of opposite party situation occurred in the 1800s.

                  More to the point, there is no principled reason the result should be different where the Senate and Presidency are held by the same or opposite parties. Either the people should get a say in any case where there is a vacancy in an election year or the Senate should vote on nominees in an election year.

                  If you then count openings in an election year (regardless of which party controls the Presidency or Senate), there are many examples of confirmations in the final year of a Presidency. But Republicans argued otherwise to deny Garland a vote, so should stick to that principle.

                3. Kennedy was not nominated in an election year and the vacancy had already been open from June of 1987. We all know about Bork and Ginsburg’s nominations.

                  1. You asked us to look at the fate of past nominees in final year of a President .

                    Kennedy was a nominee who was confirmed in the final year of President Reagan.

                    Now you want to fetishize the vacancy opened up in the year before an election. What principled reason is there for that number? It’s just a made up, arbitrary number that gives you the stats you want when you add addition arbitrary factors like “Senate held by party in opposition to the President”. Next, you’ll say where the President’s last name started with a T, an equally irrelevant factor.

                    Republicans argued and acted according to a norm that vacancies created in during a Presidential election year are left open until the next inauguration. If they renege on that rule, it is an escalation of the judicial nominee wars.

                    And they know there will be retaliation, McConnell apparently believes that the cost is worth it or that Republicans can successfully message the retaliation better than Democrats can the power grab. We’ll see. But Democrats can hardly do nothing in the face of the blatant, dishonest about face.

                    1. Democrats can hardly do nothing in the face of the blatant, dishonest about face.

                      Scream at the walls.

                    2. If Democrats win the Presidency, the Senate, and expand their lead in the House, it will be Republicans whose best option is to scream at walls.

                    3. So you think it would have been ok for them to keep open a vacancy that opened up 17 months before the election in 1988? True I should have said nominations made in a Presidential election year but that doesn’t change the point that Kennedy confirmation has nothing at all to do with Garland or the current situation. I suspect you know that. McConnell’s lie doesn’t change the fact that the norm is for vacancies that open up in a Presidential election year when the WH and Senate are held by different parties are usually left vacant. I get you’ll say anything to justify packing and destroying the Court but ignoring history makes the partisan nature of your justification obvious. I’m anti-Trump and would prefer Biden win but I don’t support destroying the Court over this vacancy getting filled. It is a shame so many are focused on short term revenge instead of the survival and standing of the Court.

                    4. So you think it would have been ok for them to keep open a vacancy that opened up 17 months before the election in 1988?

                      If a Senate controlled by the opposition party is under no obligation to vote on SC appointment, then they aren’t, for any period of time. Republicans chose to leave the SC at 4-4 for an entire term rather than vote on Obama’s nominee. I don’t see why 17 months is different than 12 or 9. You are just making up numbers to make your stats work. There is no principle that makes 12 better than 15 or 17 or 24. At best, it would be before the general election begins. Obama’s nominee could easily have been voted on before the general election started. Alternatively, before the next term starts…which, again, the Garland nomination easily would have fit that.

                      But Republicans are arguing for pure power, in which case, why should an Senate controlled by the opposition party ever vote on an SC nomination? Only if they think voters won’t stand for it. And I guess Gardner, Ernst, and Graham will find out whether voters will stand for their shenanigans or not. I suspect at least two of the three won’t like the answer they get.

                      the norm is for vacancies

                      That’s partisan hackery. There was no such norm. (And many of the GOP quotes from 2016 explicitly rejected the “opposite party” part of your supposed norm.) They set a norm for no election year confirmations. They should abide by it to avoid escalating the nomination wars.

                      It is a shame so many are focused on short term revenge instead of the survival and standing of the Court.

                      Republicans are the ones focused on partisan gain at the expense of the survival and standing of the Court. They can very simply live by the norm they established in 2016. It just isn’t hard. Trump might even win and then they get 6-3 while being able to say they have honor. And actually even sort of being right about it. But they know that’s not the safe money and they’d rather go for short-term gain.

                      The fact that you accuse me of being eager to pack the Court shows your utter failure at reading comprehension.

              3. Cannon’s numbers are correct (Kennedy was nominated in 1987, the year before the election and the vacancy occurred in June of 1987). However, the record is not clear when the Senate is the same party as the president.

                There have been seven pre-election vacancies in a presidential election year when the Senate was of the same party as the president. Five of those seats were filled before the election. However, four of those five had the vacancy in January. Only one of the three post-January vacancies was filled by election day.

                By today’s political standards, that one seat would have been quite an example of chutzpah on the part of the Democrats. Chief Justice Hughes stepped down in mid-June of 2016 to run against Wilson, and was nonetheless replaced before the election! On the other hand, the replacement (Clarke) was confirmed unanimously.

                That being said, each of the five vacancies after mid-June, two of which the Senate and president were of the same party, were not permanently filled (Brennan was initially a recess appointment) until after the election.

            2. The Democratic party can and has appointed and confirmed Justices. Many times in fact. We’ve got two justices that were confirmed and appointed by the Democrats from less than 12 years ago.

              The Garland situation was that the Democrats appointed someone, but that person wasn’t confirmed by the Senate. That’s happened many, many times in history. And I have ZERO doubt that if the Democrats held the Senate today, then Trump’s SCOTUS nominee would not be voted on before January 3rd.

              If packing the court is so “awful” as you state, then why are you so willing to do it?

        3. You really hate America if you want democrats in charge. Your kind will make it necessary to eliminate large numbers of you. In self defense.

        4. “Or, if Republicans do force through a nominee before Jan.2021, WH and Congress and threaten to pack the Court unless the Republicans agree to a plan where:

          1. Current Justices serve for life because the Constitution.
          2. Future Justices serve on the SC for 18 years, but can “retire” to the Circuit of their choice for the remainder of their life. (This way, ever Presidential term, there are two replacements. It is regularized and depoliticized to some degree).
          3. Start adding Justices every two years beginning in 2025. (So the Court will expand for awhile, but in a regularized way and will then slowly return to 9 as current Justices retire/leave.)

          If the Republicans won’t accept that deal, well, it’s war.”

          So, again, confusing threats with negotiation. As usual.

        5. I think term limits for SCOTUS justices are a good idea, and I think it’s one where one could get bipartisan support.

          The rest of your ideas are absurd. But I think it’s unlikely Democrats will be in a position to attempt it anyway.

        6. I’d change your item (3) to a lottery to be held at the end of the session in which the Amendment was ratified. Ticket one leaves now, 2 in three years, 3 in five years, etc.

          Thus, no expansion, no temporary packing. Yes, the right could loose Alito, but the right could loose Breyer. Nothing in life is certain, but it would be a start.

          See my other suggestions below (or maybe above…. comments on this have become confused).

        7. What’s to stop Republicans/Trump from nominating+voting, then winning in Nov, then amending to 9 max Justices? Besides rampant voter fraud, I mean.

      2. An amendment still needs 2/3 of both houses and Democrats will hold out in the expectation they would be able to pack the courts sometime in the future.

        1. That’s why Democrats can’t ask for more than future fairness and a system that reduces partisanship in regard to the Court but leaves Republicans their 5-4 majority now (and the chance to expand it by winning elections, rather than relying on luck and alternating between inconsistent “principles”).

          1. Your partisanship is showing. You recommend spoiling the Dems with a 5:4 majority, then expect them to play nice.

    9. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I Abq decided to take a chance on something new… after 4 years it was so hard to quit my day job but now I couldn’t be happier.

      Here’s what I do…>> More INformation Here

    10. Good question. The arrangement sounds kind of like a raw deal to start with, similar to “we won’t occupy all of Czechoslovakia, we promise”.

    11. Exactly. Don’t ever believe a Democrat promise.

    12. Yeah, that’d be my question. What, exactly, will make the Dems keep their word?

    13. How about they promise not to cheat in elections? PA and NJ come to mind.

    14. Also, how can the “Democrats” promise what future politicians will do? Votes/vetos are actions of individuals, not “the party”. Representatives and Senators represent their constituents, not “the party”, and they generally have an ethical and moral obligation to do what those constituents want, not what some Speaker of the House, who is now 90 years old and drooling in a “memory wing” of a facility, decided a decade earlier.

      In ten years every seat in the Senate will have been subject to one or two elections. In ten years every seat in the House will have been subject to five elections and could have “turned over” every time. In ten years, the White House could have been turned over three times.

      Even if Democrats still hold all the necessary positions, it’s possible that not one of them is even a registered Democrat today, let alone in a elected position within the federal government.

      AOC could be Speaker in ten years – do you think she would agree to this deal today, let alone once Speaker? Esp. if she didn’t agree to it today, she would have no obligation of any sort to follow through on “the deal”. (Yikes, just typing “AOC could be Speaker” made me throw up a little.)

    15. I agree. Proceed with the vote, approve the nominee, and then fight on the court-packing scheme. Even FDR was not able to pack the court, and even some Democrats might be bright enough to see this as a terrible precedent.

  2. Hi, Ilya. Thanks for your usual Deep State viewpoint.

    1. Deep State or Never Trump? Inquiring minds want to know.

      1. birds of a feather

      2. Is there a difference?

        1. In power, they accumulate great wealth. Out of power, they get nothing. Pelosi’s net worth went from $80 million to $120 million upon been selected as Speaker. And, please, do not say, her husband is a talented businessman. He was just as talented when she was a nothing.

          That explains the great emotion of the Democrat Party about Trump. They also represent the tech billionaires. Trump caused a labor shortage, raising wages for everyone. He did so by limiting immigration and by eliminating regulations. That increased labor cost decreased billionaire profits. Again, thus, the great emotionality about Trump.

          1. You know, wages were going up before the Wuhan Flu.

            1. Doctor wages have also been suppressed by the importation of foreign trained doctors. They are not as good, are harder to understand, and less deferential to patients. Trump was very good for doctors as well.

              1. Immigrant physicians are more willing to take the jobs American’s don’t want, in desolate red communities. Who funds and completes medical education and training to land a job in Alabama, Wyoming, Oklahoma, Louisiana, Idaho, Mississippi, West Virginia, or backwater Ohio or Pennsylvania?

                People in can’t-keep-up America deserve treatment, too.

                1. Imagine the horrible names you’d call people who referred to inner cities as can’t-keep-up America. It would be just as true, if not moreso, than the rural areas. Glad to see you just continue to be a raging piece of shit.

            2. “You know, wages were going up before the Wuhan Flu.”

              If you were in the business of operating fraudulent charities building defective border walls, maybe.

              1. Typical Pollock, no real argument.

              2. Uh, no man, your sociopolitical biases aside, that’s not what the data shows. And, as for those fraudulent charities, the wages went down…

          2. “Trump caused a labor shortage, raising wages for everyone.”

            that’s not what happens in a recession.

          3. DavidBehar,

            Your comment is nonsense.

            Pelosi was selected as speaker in 2019. Her estimated net worth pursuant to 2018 financial disclosures (the most recent available) was $114 million. So how could you know her worth in 2019 when she assumed the speakership and now?

            In fact, you can track her estimated net worth, as calculated by OpenSecrets, back to 2008. She was worth an estimated $94M in 2011 when she left her first speakership (so you can’t honestly be talking about that either), meaning she and her husband managed about 20% gain over 8 years. Not the stuff of legend. (The Dow has more than doubled during that time, so they have actually performed significantly worse than the market. If Speaker Pelosi and her husband are cheating, they are really, really bad at it.)

            Meanwhile, Mitch McConnell took over the Senate Majority position in 2015 with an est. 2014 net worth of $22M and had $34M by 2018, a more than 33% increase in just 3 years.

            And Paul Ryan (speaker preceding Nancy) went from $1.5M in 2009 to $7.31M in 2017, the last available. A nearly 5-fold increase in 8 years? He beat the market by several hundred percent. Must be a major conspiracy!!!

            Basically, you are making up numbers and stories. It’s easy to do, even with real numbers (which you didn’t use). Be better than that.

            And, to repeat, your story about Pelosi is a blatant lie.

            1. “in just four years….” I changed the number to the 2014 estimate from the 2015 estimate assuming Ryan took the speakership with his 2014 net worth. 2018 is the ending number, so four years. (In any case, in reality, he probably wrote books or something. Or maybe he is a cheat. But David’s post creates a false story about Nancy, that’s the point. He just lied.)

              1. Ouch, we do love Paul Ryan around here. He’s garnered such a following among libertarians for his principled leadership, even now.

            2. Meanwhile, Mitch McConnell took over the Senate Majority position in 2015 with an est. 2014 net worth of $22M and had $34M by 2018, a more than 33% increase in just 3 years.

              I don’t know if that’s just a tit-for-tat nonsense argument. Like Pelosi, it derives from his spouse. (In McConnell’s case inheritance rather than business, but irrelevant to the point.)

              1. David,

                I was just making a point: Basically, you are making up numbers and stories. It’s easy to do, even with real numbers (which you didn’t use). Be better than that.

                If you make nonsense arguments for one power player in DC, then realize the logic applies equally both ways. But he should “be better than that” and not make such nonsense arguments at all (especially where he doesn’t even get the facts of his nonsense argument right).

                I thought it obvious from context. But I will be explicit. Just looking at net worth of a politician and concluding anything is pretty stupid.

              2. There’s nothing particularly interesting about someone’s net worth increasing by 33% in a three-year period where the S&P 500 increased by nearly 40%. What am I missing here?

                1. DJK,

                  You aren’t missing anything other than your question just drives home my point that DavidBehar’s methodology and conclusions were asinine. Thanks!

    2. Whatever it takes to keep his master happy with cheap labor.

  3. Ilya is assuming that only Democrats will be the adults here, and perhaps they can get four Republican senators to push this through.

    1. When have the Democrats ever behaved as adults? Adulterers maybe, but adults? C’mon, man!

      1. Let’s check your understanding of adulthood, Darth Chocolate: Where do you stand on superstition, especially organized superstition?

        1. Which organized superstitions? The ‘war on women,’ the 1 in 4 women raped on campus/1 in 3 in the military, guns cause violence, everybody has celiac disease or peanut allergies, yoga mat chemical in bread, fish dna in tomatoes, golden rice is harmful, there is no explanation for climate change possible except humans, racism = power + privilege?

          1. That’s quite a mouthful, Hank. Now open wider . . .

            1. You really want a civil war, don’t you Kirkland.

              You well might get what you want.

              1. I want the decent majority to continue to prevail in America. I also expect that to occur. May the better ideas continue to shape our national progress against the wishes and efforts of conservatives.

            2. That was really quite funny, Kirkland; your oral rape fixation doesn’t do much for me. One has to wonder if a dentist from middle America abused you as a child, before your current career of commenting between your non STEM classes or whatever ‘higher’ education-related dimness with which you keep yourself amused. And, you didn’t answer the question. I can list some more for you to choose from, but don’t want to make it too complex.

        2. We don’t believe in your climate religion, if that’s what you’re talking about moron.

        3. Where do you stand on superstition, especially organized superstition?

          You mean, like Catholicism?

      2. A Trump supporter throwing around the insult of “adulterer”?

        I just fear your weren’t being intentionally funny.

        1. ‘Adulterer’ doesn’t begin to cover it. Democrats are evil, soulless, depraved things.

            1. Yet 100% correct. Democrats are the ones now trying to legitimize pedophillia. You people are pure evil.

  4. I’ll hold the football, Charlie Brown….

      1. Yep. Fuck the democrats. They’ve done nothing but lie, cheat, and go back in their word for decades. It’s time to destroy them.

  5. Lol. Is that how you respond when someone holds a gun to your head?

    I would delay the vote until January in exchange for a constitutional amendment against packing the court. Not a mere promise. And certainly not one to not blow up the system.

    If it becomes 6-3, nothings gonna happen. Republicans have had the court for decades. In that time, the court passed same sex marriage and abortion. On the major culture war issues, conservatives have always lost (excepting certain religious issues) that I’m not sure they will suddenly start winning now.

    1. Yeah, no matter what power Republicans attain, somehow, we still have no real gun rights in blue states, and the “rights” of sexual deviants are held sacrosanct.

      1. Lawless democrats should be imprisonments, or worse.

    2. “On the major culture war issues, conservatives have always lost (excepting certain religious issues) that I’m not sure they will suddenly start winning now.”

      The wages of bigotry, backwardness, and old-timey superstition include being on the wrong side of history and losing the culture war at all levels of American society.

    3. No, you know they’ll try to impeach Kavanough and Thomas if they win the Senate.

      1. I do not expect or desire that (impeachment) to occur. Justices Kavanaugh and Thomas are entitled to spend as long as they like writing embittered dissents and complaining about ‘all of this damned progress,’ in my judgment.

      2. More likely they will use the Hodgkinson option.

        1. That would backfire in dimensions unimaginable.

          1. Do they think things through? Where was that foresight when they decided riots would be cool? Where was it when they decided to end the filibuster?

            Do any of their actions ever lead to long term peace? It’s just one destructive choice after another, over and over and over, never learning any lessons while the US lurches toward a more and more dangerous future.

    4. “I would delay the vote until January in exchange for a constitutional amendment against packing the court. Not a mere promise.”

      If the D’s could pass Constitutional amendments, don’t you think there’d be one restricting vote suppression by now?

      1. The only vote suppression is committed BY democrats.

  6. I have a more modest proposal: Justice Thomas retires, effective October 5th. Trump gets to nominate another (relatively) young justice, everyone gets to play in Supreme Court nomination theater, there is no plausible way that a second nominee makes it through before January, and the ideological balance of the court is maintained.

    1. Have you discussed this with Clarence?

      1. And why do we want to maintain the ideological balance of the court? Obama skewed it Left, we want it unskewed.

        1. What! Obama skewed it left? Which conservative justice did Obama replace with a liberal one? The only potential change to the court balance was the nomination of that raging liberal Garland who would have destroyed everything holy that is the US.

          1. Sotomayor is significantly more liberal than Souter was. Obviously. Souter was no principled conservative. But the court definitely shifted leftward with that pick. Kagan was a wash over Stevens.

        2. ” Obama skewed it Left, we want it unskewed.”

          Obama isn’t on the Court… yet.

  7. The election probably puts the kibosh to any deal making when Trump can easily turn court packing into a campaign issue.

  8. There is zero chance that Democrats would ever feel compelled to honor any deal they had agreed to.

  9. 50 senators plus Pence can confirm. But, 51 senators are required for a quorum. Can the Democrats with the participation of three Republican senators prevent senate action? If fewer than 51 senators are present can the senate declare a quorum if there is no one available to damand a quorum call?

    1. The likely circumstance is that there will be but 52 Republican senators after Arizona’s special election.

      1. Assuming the confirmation vote gets scheduled after the election instead of before.

        If Kelly wins, does the Senate have the ability to delay his membership under Art I section 5?

    2. Yeah, that would really look good going into the election.

  10. If you wish to be part of the relevant and consequential debates in this context after January, Prof. Somin, I respectfully suggest that you drop uniform usage of ‘court packing,’ a loaded term likely to alienate those who will control the Supreme Court’s long-term future.

    I believe you would be a worthwhile and important participant in those debates, so I hope you will consider whether to use terms — such as ‘enlargement’ or ‘expansion’ — that will not predictably cause the liberal-libertarian mainstream to tune you out entirely.

    Thank you.

    1. It was court packing when FDR tried it and it will be court packing if present day politicians try it now or in the future.

      1. Was it court packing when the Court was enlarged several times in American history, or is this just additional attempted avoidance of the reality-based world by superstitious bigots?

        1. Depends on the historical circumstances.It could have been. But FDR was clear about his intentions and they were to pack the court. When will you ever grow up Kirkland?

        2. It’s court packing in your common use when you poke at your lessers about doing it.

          Why is deliberately stirring outrage with it as rhetoric fine in that context, working for you, but not when an opponent uses the same thing against you?

          1. Call it what you want.

            But you will comply.

        3. Kirkland, it corresponded to the increasing number of circuits, back when justices rode them. And then became set at nine as we attempted to put the carnage and turmoil of our first civil war behind us.

          You seem eager to fight the second.

          1. Increasing the number of circuits seems reasonable, in line with population growth.

            Enlarging the House of Representatives is overdue.

            I am interesting in arranging and observing continued American progress. Clingers can swallow that progress however they wish.

          2. Violent bigots tend toward delusion and grandiosity. They hint at winning by force — and do so regularly at the Volokh Conspiracy, with the proprietor’s approval. The real world, however, teaches the converse — even when the bigots turn out to be more than all-talk clingers.

            America’s right-wing bigots did not “win” at the Pettus Bridge.

            America’s right-wing bigots did not “win” at the Heart Of Atlanta Motel.

            America’s right-wing bigots did not “win” at the graves of Chaney, Schwermer, and Goodman.

            America’s right-wing bigots did not “win” at the grave of Emmett Till.

            America’s right-wing bigots did not “win” at the lynching of Michael Donald by Republican malcontents in 1981.

            All-talk, bigoted right-wingers are among my favorite culture war casualties.

    2. Blackmail & the hallmark of the serial abuser, kirkland. Huzzah, you are on a roll.

      1. Blackmail?

        I’m for letting the Republicans do as they wish when they hold the cards, then having Democrats use the power strenuously when they have the chance.

        Of course, that’s easy for me to say. My side is the future of America.

    3. No one cares what you believe Arty.

  11. I would like to defer comment until I have finished reviewing the choices on Biden’s nominee list.
    (oh, wait. There is no Biden list. I guess they haven’t given it to him)

    The democrats lie; there is no negotiating with your executioner.

    1. You are confusing ‘list of alleged Supreme Court candidates’ with ‘tax returns’ when considering American political norms.

      Just like the rest of the downscale, stale-thinking whites supremacists who constitute the declining conservative electoral coalition these days.

      1. How are you gonna win any more culture war skirmishes if you can’t count on some black robed tyrants?

        1. Because the Court tends to follow the culture, not the other way around. It is seldom the Court has been in front of public opinion, though it has in a few important instances. I suspect that will continue because the Justices tend to be smarter and more well-read than the general public, so are more likely to see where history is going on and feel an obligation to do rule according to text and justice rather than backwards culture (which explains decisions like Loving which preceded the change in culture, if just barely).

          1. Weird, I thought the courts were supposed to follow the law, not the culture.

            1. They are, but for cultural reasons, they allowed segregation to continue for nearly 100 years after the law clearly indicated it was unconstitutional. So, sometimes they wait for culture to catch up with law.

              And, it is incredibly naive to think they would follow the law with complete disregard for culture. Culture does inform the law. That’s one reason parts of the Constitution speaks in terms of unreasonableness and other similarly undefined terms. Reasonableness necessarily entails some amount of cultural input. The Constitution was designed precisely to be flexible enough to bend, at least somewhat, with cultural changes. A too rigid system would never survive the long haul.

        2. My side is going to continue to win the culture war for several reasons.

          First, it’s the American way. The voices for backwardness, intolerance, and religious dogma do not win in America, not over time. They have tried, and at times made life miserable for most of America (at one time or another) with successive waves of intolerance and ignorance, but in America the better citizens always prevail over the clingers.

          Second, there are more Americans in the liberal-libertarian mainstream than there are in the clingerverse, and we operate the strong schools, the strong newsgathering operations, the better entertainments, the successful communities, etc.

          Third, our ideas are better. Reason. Education. Tolerance. Modernity. Science. Inclusiveness. Progress. That group will stomp superstition, ignorance, backwardness, bigotry, dogma, insularity, and pining for illusory good old days every time.

          These days, just about all Republicans and conservatives have going for them are (1) voter suppression, (2) gerrymandering, and (3) our system’s structural amplification of yahoo votes. But that strategy os just about played out.

          We will shape the judiciary because we have won the culture war — not vice versa.

          1. A man can turn himself into a real authentic woman just by the power of his mind! Science!

            1. I sometimes get Prof. Volokh’s followers confused — is Sam Gompers the ‘raging male member’ yahoo, the ‘assault on masculinity’ dope, or just another garden-variety clinger?

              1. Arty, follow Hihn’s example and die.

    2. “oh, wait. There is no Biden list”

      He’s never been President when there was a seat open. Why would he have a list ready?

  12. Judicial review is prohibited by Article I Section 1 giving lawmaking power to the Congress. If the Supreme Court wants to make laws, it should have a legislature size, like 500 Justices.

    1. I think you lost this argument back in 1803.

      1. Nothing has changed about the reality of the plain English of Article I Section 1. We are just all agreeing to deny reality. Textualists like Gorsuch may decide to step up. If you want judicial review, enact an Amendment.

      2. Before 1803. There is a common misconception that judicial review was established in Marbury v. Madison. It wasn’t. It was adopted in Hayburn’s Case, Hylton v. U.S., and Hylton v. Ware in the 1790s. It was also well-established in the common law before that.

    2. Don’t worry, if the Dems win this fall, it soon will…

    3. All three branches are responsible for “making law.” As evidence, ask an attorney what the law is on a given issue. To answer this, they will likely consult the relevant legislation, rules as enacted and placed in the federal register, and court opinions related to the statute and rules. All of these sources are used to understand what the “law” is on the issue.

      Under your logic, the courts would be in violation of the ex-post facto clause of the Constitution. They are “making law” (as you say), but they do so after the fact as opposed to before. That is, the courts must wait until after an act is committed to then “make the law,” which is then applied to the person who has already acted.

      1. I’m confused as to how your comment applies. The ex post facto clauses only apply to retroactive application new laws to past behaviors. We recognize that people should not be held liable for violations of a new law when those violations occurred prior to passage of the law. There is nothing problematic about passing a new law.

        1. QuantumCatBox was saying, if DavidBehar’s argument was taken seriously, then the trial of a defendant accused of violating a statute would always be subject to ex post facto lawmaking because, under DB’s theory, interpreting the statute constitutes making law and the court can only do that in the context of an indictment, etc., leading to trial which necessarily follows the crime…ergo, all judicial rulings would be ex post facto laws.

          Shorter version: DavidBehar’s theory is absolutely nonsensical.

    4. You’re looking in the wrong place. Judicial power is vested in Article 3.

  13. Repeal the judiciary acts. Create a new supreme court with 100 members with original jurisdiction. And be done with this farce.

    1. A new Judiciary Act should place the Supreme Court in the middle of the country, away from the rent seeking capital, Washington. Wichita is nice.

      Make any number even to reduce the 5-4 decisions. That would make the Court conservative in the sense of preserving lower court decisions complying with prior Supreme Court precedent. That is an advantage because the Supreme Court is composed of know nothing bookworms. They know shit about shit, yet get to make national policy on complicated technical matters.

      The new Judiciary Act should also exclude anyone who has passed 1L. Lawyers are the stupidest people in our country. Ivy indoctrinated victims are the stupidest of lawyers. And, Supreme Court Justices are the stupidest of all Ivy indoctrinated victims. Replace these lawyers with student from Life Skills classes, learning to eat with a spoon, for an immediate upgrade in the common sense of decisions, and in the clarity of the decision writing. Nothing is worse than the morons on the Court today.

      1. You sound like a disaffected, seething, vanquished misfit, DaivdBehar.

        And a natural follower of the Volokh Conspiracy.

        1. Hi, Rev. Try to calm down. It is not that serious.

          1. Unless it is.

  14. My guess is Trump will select a nominee and the Senate will hold off on a floor vote until after the election. Keep in mind Republicans would only be doing what the Constitutions requires of them to do while packing the court would be viewed as seditious.

    Democrat’s have to be careful not to get too drunk on their November success because mid-terms always bites back at the party in control and any unpopular legislation, e.g., Obama Care, surely will propel Republicans taking control of both chambers as been the case before.

    1. Please don’t interject your silly “coherent discussion of strategy adult conversation” into the ongoing topic of assigning bad faith to the other side. It’s just a distraction from what’s truly important.

      1. But but but THEY are evil and stupid while WE are noble and virtuous!!!

    2. Democrat’s have to be careful not to get too drunk on their November success because mid-terms always bites back at the party in control and any unpopular legislation, e.g., Obama Care, surely will propel Republicans taking control of both chambers as been the case before.

      Overreach leading to backlash is always possible. But Obamacare remains. The goal of getting elected is to enact policy, not to get reelected.

      1. The goal of getting elected is to enact policy, not to get reelected.

        Having worked in Congress a bit, I can tell you that on an individual representative basis this is true less than you might think.
        This may be a lot of the cause of why Congress is so wimpy lately.

  15. This is no different than the current deal the Democrats are offering:

    Vote for Biden or we will burn your businesses and homes down.

    Good one, Ilya, hecklers shouldn’t get a veto.

    1. Biden is going to lose because of this — there’s going to be massive mail-in vote fraud but there is a massive stealth level of Trump support.

      1. The President did promise that 2020 would be the most corrupt election in history. Maybe he actually keeps this promise.

  16. Someone is afraid of another Catholic!!!

    Note that the senate never held hearings on judges until Brandeis was nominated … go figure.

    1. It’s the sacred ignorance, dogmatic intolerance, and stale thinking, not the Catholicism.

      Many Catholics are decent, modern citizens.

      1. He hates Jews, not Catholics.

        1. He was asserting that a Catholic would necessarily be a stale-thinking right-winger who would be disliked by mainstream America.

          I responded by noting that not all Catholics are obsolete bigots.

          1. The current Pope is not a former Nazi, unlike the previous one.

            1. Ouch, we do love Paul Ryan around here. He’s garnered such a following among libertarians for his principled leadership, even now.

  17. This assumes Democrats can be trusted.
    If they even need a fig leaf, they’ll gin up a few riots here and there and claim they had to pack the court to stop the riots.

  18. As no deal would be binding at all why would Republicans make that stupid choice. Every time its is the Republicans that have to give… Democrats have not compromised in many many years.

    This also assumes that after the election Democrats will control both houses and the Presidency.

    Also if they do they are going to pack it anyway to guarantee thier court.

    1. Their definition of compromise is us caving.

      1. YOUR definition of compromise is you caving. Remain pure, conservatives. don’t be seen cooperating with liberals fof the good of the country. That would be off-brand.

        1. We have cooperated. The country, and humanity are far worse off for it. Progressives have got to go.

          1. You aren’t paying attention.

            Trumpists talk about RINO’s who are Republicans that compromise with Democrats and/or follow their conscience rather than Trumpian dogma (which, at this point, is just whatever Trump says).

            Meanwhile. there is no similar concept among Democrats.

            Those two facts should tell you everything you need to know about who compromises and who doesn’t. Compromise is essential in any human group involving more than one person. How today’s Republicans don’t understand that, I will never understand.

  19. And you expect the likes of Schumer and Pelosi to keep their word? HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA HA

  20. To know the minds of the Democratic base, just read the comments on any political issue in the Washington Post. They want anyone who isn’t a Democrat to have no say in anything, and many think the only good non-Democrat is a dead non-Democrat.

    And oh, yes…the Green party is as much Russian stooges as the Republicans and Bernie Bros.

    1. It’s only Trumpists here at Volokh that I see talking about literally killing the opposition. I haven’t seen any remotely similar talk from anyone on the “left” at the WaPo comments section.

  21. If I were advising the President, I would suggest looking at another option: nominating a Black female judge. Many advantages to such a nomination including fulfilling Biden’s “pledge” and restraining opposition. Not easy to identify the candidate- I don’t have the expertise- however an Obama short listed Judge, Leondra Reid Kruger, has the legal qualifications, plus mother Jamaican, father Jewish. Don’t know her positions; would you take some risks for a nominee with better odds rather than lose all with an election loss?

    1. Trump should appoint some Obama hack to fulfill Bidens promise?

      lol wtf

    2. Trump will nominate an excellent choice. Dems will go insane, just like the last time only a lot more. Voters will see it this time.

      1. Are you predicting that this is the point at which conservatives finally turn the tide of the culture war, Ben?

    3. That would leave the Dems going extra vile in savaging the nominee. The leaders of African American political groups would give them cover, the way they did during the Thomas hearings.

    4. “Not easy to identify the candidate- I don’t have the expertise- however an Obama short listed Judge”

      We can just stop you right there. Obama was the AntiChrist and therefore anyone who met with his approval is flatly unacceptable to Republicans.

  22. Better yet, the GOP should nominate and confirm someone, which is their right to do.

    The reason blocking Garland was a reasonable thing to do was simply because the GOP had a majority in the Senate. And the reason they are in a position to confirm a potential nominee now is because they have a majority in the Senate.

    The principle of majority rule is perfectly principled. And in fact, any other principle is dysfunctional.

    1. The problem with this argument McConnell did not make it in 2016. He instead argued we should wait to see who is elected president. Only now has he changed his tune.

      1. That isn’t a problem with the argument. It is a problem with McConnell.

        His hypocrisy is duly-noted.

        The argument still stands.

        1. Fair enough. But don’t expect the Democrats to accept the argument when McConnell touts it.

    2. “Better yet, the GOP should nominate and confirm someone, which is their right to do.”

      Even better than that, the GOP should nominate someone impartial and well-qualified, which is their duty to do.

      1. Impartial with respect to what?

      2. Tell me more about the qualifications of Sotomayor and Kagan, two barely literate morons.

  23. Moderate Dems already dislike court packing for both political (it tends to be unpopular) and principled reasons. Only the prospect of a 6-3 GOP majority achieved by the Republicans’ violating their own self-proclaimed norms is likely to make them them change that stance.

    *Raises hand*

    Any real chance of success will require the support of people far more influential than me.

    No promises, but I’ll see what I can do.

  24. Ilya,

    No. This is a pseudo “Heckler’s Veto” you’re giving the Democrats. “Do what we want or else we’ve violate this other norm and pack the court”.

    It’s not right. Norm-violating threats are not a way to make a “compromise.”

    1. I don’t see a problem with threatening to break a norm as a deterrent to breaking another norm.

      1. “breaking another norm”

        What other norm? Appointing and confirming a SCOTUS judge as has been done dozens of times in American History?

        1. McConnell established the norm in 2016, but no wants to break it.

          1. judging from the Dems reaction at the time, the ‘norm’ was not widely accepted

            1. “judging from the Dems reaction at the time, the ‘norm’ was not widely accepted”

              Judging by the Republicans reaction now, it isn’t widely accepted now. You got what you wanted, should have looked ahead better. This is why you aren’t winning the long game.

          2. Please. No one believes that’s a “norm” that would be followed.

            1. I guess actions count for nothing.

          3. Josh R….try cracking open a history book. The ‘norm’ is that the Senate confirms SCOTUS nominees of the POTUS of the same party in an election year. That is completely non-controversial.

            There are only two rules here. The POTUS nominates, the Senate confirms. And that is it. That is what the constitution says.

            Everything in-between nomination and confirmation is wide open. I expect a political nuclear war.

            1. McConnell did not make that argument in 2016 likely because he felt it might be politically damaging. His actual argument set a new norm.

              1. A roughly 4 year old “norm” isn’t much of a norm.

    2. Norm-violating threats are not a way to make a “compromise.”

      That’s a joke, right? Trump, enabled by his Republican apologists, has violated every norm since Eve asked Adam not to leave the seat up. I hope the Democrats continue respecting the two or three norms still hanging on by a thread, but the GOP has less than zero standing to make that request.

      1. What “norms” have been broken, in regards to appointing judges by Trump?

      2. Well, Democrats have already violated the norm of not trying to murder political opponents so we’ll see how things go.

        https://en.wikipedia.org/wiki/2017_Congressional_baseball_shooting

          1. When attempted assassinations of congressmen was mentioned, Leo Marvin said “Lol”

            1. Right, that’s a perfectly good faith reading of my comment. gfy

              1. Then when called on his behavior, Leo Marvin said “gfy”

                1. You misspelled “when lied about.”

                  You can gfy too.

                  Bye!

  25. Basically Democrats have threatened to do whatever they can whether it’s legal or not to obtain power in all branches of government. Many on the left are right now promoting violent tactics to achieve this. Let’s remember it was Harry Reid who threw the gauntlet down by removing the 60 vote barrier for federal justices. McConnell stepped that to include the Supreme Court. Now Democrats threaten to pack the court, remove the filibuster entirely, and do anything else to get their way legal or not. They are literally screaming children in a tantrum. I fully expect this to translate into real left wing street violence worse than anything we’ve seen in decades.

    1. Two words: Insurrection Act.

      1. Four more words:
        You’re a fucking idiot.

    2. Watch for bogeyman stories. The more they make up bogeyman stories to tell their voters the world will end, the more they are preparing for and promoting violence and lawlessness.

    3. Remember it was Schumer in 2001 who pushed the principal of opposing nominees based overtly on their politics. In the past, this was done covertly and Senators went to great lengths to avoid appearing to do this. Schumer’s new rule made it easier for Senators to make the court more partisan.

  26. What is the difference between staffing the Court and packing the Court?

    1. 151 years of precedent comes to mind.

      1. There is ample precedent for adjusting the size of the Supreme Court (and number of Circuit Courts of Appeal), particularly in the context of population growth. There is express legal authority underlying that precedent.

        There is no precedent for installing a justice of the Supreme Court in line with the timetable envisioned by Sen. McConnell.

        Stock up on handkerchiefs, weepy Republicans.

        1. You are so full of shit.

          FTR, 43 of 61 SCOTUS justices since 1900 have been nominated and confirmed in 46 days or less. Dumbass.

          1. Instead of going back to 1900, go back only through the current Senate. How’s THEIR record?

            1. Because precedent doesn’t work that way?

            2. Roberts went from nomination to confirmed in 24 days although that was a bit different situation. RBG took just 51. I don’t think length of time is the real issue here.

          2. I was referring to the relevant context of the final year of a presidential term.

            Getting stomped by guys like me as America progresses against your wishes seems to make you cranky.

  27. In 2016 the incumbent President was a lame duck and could not have nominated a Supreme Court candidate after the inauguration. The current incumbent could remain for 4 more years. That is a significant difference between 2016 and 2020.

    1. You are making what is known as a distinction without a difference. There is no Constitutional warrant for the notion that a President becomes a “lame duck” at some arbitrary point in their administration, and loses the power to make judicial nominations.

    2. In that case, let’s see who wins the election. If Trump wins, he gets his court pick. If he doesn’t, he is in the same position Obama was in 2016.

  28. At least you are trying to think in terms of a compromise, Ilya, although you want the Democrats to make a much, much bigger concession than the Republicans would have to under your proposal–tying their hands on the Court’s size in return for a couple of months of delaying a vote.

    1. The other obvious question I have is that Ilya’s compromise is essentially unenforceable except for the good behavior of the Democratic Party in the Senate.

      Their behavior in the past 20 years have been anything but “good.”

      1. Trying to persuade the Democrats not to go medieval . . . I mean, follow the rules fastidiously for partisan purpose . . . might be the only shot Republicans have at this point. They’re the ones who should be trying to negotiate.

  29. Let’s add on one other question for Ilya,

    Ilya, by offering this “compromise”, you appear to be offering support for the idea of Democrats packing the Supreme Court. Do you, in fact, support the idea of “court packing” of the SCOTUS for political gain?

  30. This is idiotic. The dems wanted to pack the court when RBG was still on it, what on earth makes you think that simply offering them a shot at replacing RBG with someone who, in their eyes, would still only be a pail shadow of the justice they lost, would assuage their rage at no longer having the majority of the court? Even if the moderate dems agreed to such an argument in good faith, if there’s anything we’ve learned about the dems in the past 3 years, it’s that the moderates are not in control anymore.

    1. Even if the moderate dems agreed to such an argument in good faith, if there’s anything we’ve learned about the dems in the past 3 years, it’s that the moderates are not in control anymore.

      You can tell, by the fact that they selected Bernie Sanders as their presidential nominee, and he promptly picked Liz Warren as his running mate.

      1. Good response. Only two group think the moderates Democrats are not in control, the Republicans and progressive Democrats.

  31. We’re well past gentlemen’s agreements by about 10 years. There’s no faith among Republicans that Democrats wouldn’t pack the court anyways, and Republicans will have zero real leverage if Democrats win the Senate.

    If you’re planning on relying on the goodwill of Democratic Senators, then you’re mistaken. The next time that the Supreme Court makes a technically correct but unpopular decision that Democrats detest then all bets are off. The next Citizens United will be the end of any deal once Senators feel pressure from interest groups to save the nation from a “conservative” ruling.

    1. “Republicans will have zero real leverage if Democrats win the Senate”

      That’s a bingo!

      You guys might as well resign yourselves to life in the reality-based world and modern America. The liberal-libertarian mainstream wins.

  32. So, the plan is:

    1. Give up something to which the right is entitled, and which is of great benefit to us, in return for:

    2. Having the left make an unenforceable promise not to do something that only makes sense in a leftist fever dream, and which somehow binds all future legislatures contrary to the principals of representative government.

    Does this proposal come from a fetishization of losing with principal? I can’t see how else it makes sense.

    1. Principle, of course, not principal.

    2. McConnell invented a rule 4 years ago to tank the moderate Garland nomination.

      He’s breaking that rule now to allow a much more problematic nomination.

      To paraphrase a certain politician, if you don’t have rules you don’t have a country.

      1. Why are you elevating following the supposed “rule” above anything else? Only McConnell came up with the nonsense rule, which was obviously a ruse to do what everybody wanted to do anyway. It was never of any significance. Nor would anybody on the left respect it. Instead, the left will disregard anything necessary to take power. The only reasonable response is to fight and win at any cost lest the Bolsheviks turn this country into a smoldering ruin of suffering, oppression, and misery.

        1. You want principal?

          Try the 2000 election. Which Democrats conceded, despite the fact that:

          a) More people in the US voted for Gore. Buts Democrats conceded because the EC was the rule and Bush won Florida.

          b) In Florida, more legal voters went to the polls and tried to vote for Gore than Bush. But the rule is that a wrongfully disenfranchised voter still can’t vote after the election, so Democrats conceded.

          c) In Florida, more legal voters cast ballots for Gore than Bush, but the spoilage rules disproportionately impacted Gore voters. And the Democrats conceded because the SC stopped the recounts.

          d) In Florida, more legal voters cast unspoiled ballots intending to vote for Gore than Bush. But a poorly designed ballot meant a lot of Gore voters mistakenly voted for Buchanan. And the Democrats conceded because that’s not the kind of thing you can fix after the fact.

          So by any measure Gore actually won the 2000 election, but he conceded to Bush because a strict application of the rules meant that Bush won.

          That’s because Gore actually gave a crap about your country, he actually believed that the rule of law mattered more than getting the Presidency that he deserved to win.

          It’s abundantly clear that McConnell, Trump, and the GOP doesn’t have a shred of Gore’s patriotism.

          And yes, for all you’re ridiculous talk of Bolsheviks you are actually advocating a path that will put your nation on the path to a civil war.

          What Gore understood, and you do not, is that Democracy isn’t about putting the right person in power, it’s about creating a system of rules that everyone agrees to play under. Your constitution isn’t magic, the SCOTUS doesn’t have divine powers of enforcement. It works because everyone has agreed to follow those rules. If the GOP keeps breaking and exploiting those rules then the left will simply opt out, then you’ll have that civil war you seem to crave.

          1. There were multiple recounts of the ballots in the aftermath of the election by multiple media outlets. POTUS Bush won Florida, period. And no amount of your stupid sophistry is going to change that objective fact. It is 2020…get over it, already.

            You have a problem with the Electoral College. And you have the intellectual arrogance to assume you know better than the Founders. Riiight…..uh no, you don’t.

    3. This is a nonsensical argument even if it weren’t being offered in bad faith, which your later comments (“The only reasonable response is to fight and win at any cost lest the Bolsheviks turn this country into a smoldering ruin of suffering, oppression, and misery.”) make clear that it is.

      If the Democrats don’t take power after the elections, the Republicans haven’t given up anything by striking this deal, other than a few measly months of Justice Barrett’s tenure. After all, Trump can still put her on the court, and the Democrats won’t be in a position to renege.

      On the other hand, If the Democrats do take power after the elections, they can enact these policy changes regardless of whether Republicans make this deal. So there are two possible outcomes in this situation:

      a) The deal is struck, Democrats live up to it, and the GOP gains a preservation of the status quo.
      b) The deal is struck, Democrats don’t live up to it, and the GOP is no worse off than otherwise. (Sure, Justice Barrett would be on the court — but the Dems can nullify the effect of that appointment by expanding the court by several seats.)

      In other words, it’s no lose for the GOP to make this deal.

      1. The Democrats can’t enact the threatened policy changes and still have a United States of America at the end. The point of refusing the deal is that, if Trump loses, you have a 5-1-3 court until—most likely—Thomas dies. If the Democrats don’t like that, they have to be the ones to fire the first shot.

      2. Well, the GOP could decide to deny quorum for any legislation whatsoever if the Dems attempt to pack the court.

  33. It seems a sensible plan, so I doubt either side will agree to it. Gaining the upper hand is much more important than fair play.

    1. I like it. It’s a combination deal/threat if the GOP doesn’t follow through.

  34. As many above have noted, the problem will be with part 2 of the agreement. There is no way that Democratic party senators in 2020 can limit what Democratic party senators in 2021 want to do. The GOP has no assurance that the 2021 Dem senators might give in to pressure from their left flank. Then the GOP would not be able to do anything but complain…and the partisan divide and mistrust would be even worse.

    1. So if, for instance, Bush raised taxes as part of a deal with the democrats, the would cut spending?

      1. Reagan did as well. The Dems refused to follow thru both times.

  35. Trump is not going to do this, the Senate is going with him, its immoral to surrender to immature Dems like we owe them. What favor exactly to we owe them for? Not destabilizing the government like spoiled children? They just will do what they want the next time they feel like it .

    1. Republicans should be begging Democrats to agree to refrain from politically bombing the clingers back to the Stone Age. That type of persuasion may be the entire extent of reliable political power the Republicans will hold throughout the foreseeable future.

  36. Meh. If conservatives are not allowed to take over the Supreme Court even when we control the presidency and Senate, after a lifetime of losing in the Court,….let the left burn it down.

    I have no incentive to preserve the “legitimacy” of an elite, anti-majoritarian institution that I am not allowed to win.

    So replace RBG now and if the left goes down the court packing route, fine. That’s a better alternative than continuing with the pretense of lawless Court decisions like Roe or Lawrence.

    1. First, even a half-educated bigot should know Republicans have dominated Supreme Court positions for more than a half-century.

      Second, even a superstitious clinger should know the majority of Americans reliably votes for Democrats for President, Senate, and other positions.

      Third, other than that . . . great comment!

    2. Clarence Thomas was appointed by George H.W Bush.

      Democrats have controlled the white house for 4 terms as have Republicans.

      Democratic Presidents have won the popular vote for 6 of those 8 terms.

      At the time of RBG’s passing Democratic Presidents have appointed 4 (now 3) justices and Republicans 5.

      You surely cannot be complaining that the SCOTUS is “anti-majoritarian” in a way that is anti-Conservative.

      1. I am not complaining that the Court is anti-majoritarian at all. I accurately described it as an elite, anti-majoritarian institution. Because that’s what it is. It’s most important function is to enforce minority rights against the majority, and it is generally protected from democratic oversight.

        Which is fine, so long as the Court is willing to enforce rights we all agreed upon in advance in our Constitution. And so long as the methods for capturing the Court are enforced.

        But that’s not what our Court has done. Our Court, for the last fifty years, has enforced the RBG and Ilya Somin’s world view. The liberal and libertarian social views instead of the Constitution and laws.

        And now, when it looks like conservatives might capture the Court….eeek! The Somin’s are just fine conceding a new principal that might allow liberals to replace RBG even though conservatives have complete control over the nomination and approval process. All so he can protect the precious legitimacy of the Court.

        Well no thank you. The Court has delegitimized itself already. I am not going to forego capturing the Court to protect the Court. I would rather see the left accelerate its institutional authority by packing in it a fit of pique.

        1. “I would rather see the left accelerate its institutional authority by packing in it a fit of pique.”

          And we will be pleased to vindicate that preference.

          (Better break it to Prof. Blackman gently, though. . . I’m beginning to worry about him.)

  37. From the article above: “Simply put: Republicans agree not to vote on a replacement for Ginsburg until January; Democrats agree not to pack the Court.”

    Never gonna happen. To go along with “agreeing” with the Democrats or any Democrat is essentially to admit yourself as being totally ignorant. Democrats never, and I mean never, honor any agreement they make, especially with Republicans. Hell, they even lie to their constituents every election cycle!

    I’ll stick with “Promises Made — Promises Kept”!

    1. When you lose the Senate, you’ll lose the USSC seats you currently have. Kavanagh will be the first.

      win the battle (get a conservative on the court right fucking now), lose the war (watch them be impeached and removed.)

      1. That will be informative and eye-opening to a lot of people. Let them go ahead with that.

        1. Yes, please. I am interested where the 64 votes for removal will come from.

          1. When the new Senate is seated, the Democratic majority refuses to seat half the Republican Senators, being the sole judge of members’ qualifications. Presto! Democrats are now over 2/3 of the members!

    2. Democrats never, and I mean never, honor any agreement they make, especially with Republicans.

      Can you explain which political deal with Republicans you think that the Democrats violated?

      1. Reagan and Bush’s tax cuts were two big ones. That McConnell hasn’t nuked the filibuster over legislation is likely a tactical mistake because the Dems sure as hell will do so.

        1. Not a tactical mistake. He wanted an excuse to refuse to hold votes on conservative legislation, to protect RINO senators from being exposed (By voting against it.) and primaried.

  38. TL;DR but…

    Biden is on the record as being against court packing saying that they would rue the day they did that if they did so. So, until Harris takes over, a veto proof majority in both houses would be needed to pack the court and I don’t see that happening in the near term.

    Also, I doubt the leadership could get every Democrat aboard for such a bone-headed move – esp. in purplish states. First, I’m pretty sure a number of Democratic Senators and Representatives would realize that it would be seen as an extremely cheap shot that a lot of moderates would not like and it could cost them their seats. Second, they would realize that it would result in an inevitable spiral of an ever growing court as every time a party took control of both houses and the White House and the balance of the court didn’t match that party’s preference, the court would be grown as needed to shift the balance. Third, they would realize that such a move would accelerate the day that Republicans controlled both houses and the White House making the move an ultimately empty gesture.

    1. Biden is on the record as being against court packing saying that they would rue the day they did that if they did so. So, until Harris takes over, a veto proof majority in both houses would be needed to pack the court and I don’t see that happening in the near term.

      What Biden says out of power, and what Biden will do when in power, are two very different things.

      1. Biden also, yesterday, refused to come out against court packing when directly asked.

  39. 1. Why would the Democrats agree to that?

    2. The problem is that there is really no framework within which such a deal can be made, which is why we’re here to begin with.

    1. I do love the head-scratching from democrats in this thread. “Why would democrats agree to forgoe court-packing”? Apparently, you suffer from the same ignorance that led Harry Reid to eliminate the filibuster for judicial nominations: you can’t imagine the other side using the same powers in the same way when they’re in charge.

      Pssst!!! Only one side in America has consistently advanced its political objectives through the federal courts, and we call them liberals.

      By all means, hasten the demise of judicial supremacy by legitimating court packing. The next time republicans in charge, we can return the favor and kill all those lovely precedents like Roe simply by adding 6 new judges committed to our political preferences.

      It’s not ideal, but it’s better than a system where only liberals get to win, which is what Somin argues for above.

      1. The next time Republicans are in charge, they won’t be Republicans.

        Aim your Google-compatible device at “demographic doom.”

  40. “Pssst!!! Only one side in America has consistently advanced its political objectives through the federal courts, and we call them liberals.”

    PSSST! Somebody’s never heard of the Lochner Era.

    1. Lolz. So the opportunity I am going to lose if the left blows the Supreme Court up by legitimzing court packing is….Lochner? Okey dokey. Talk about an exception proving the rule. You literally had to go back a 100 years to find a time when any one other than the left relied on the Court to advance its main political agenda.

      Like I said, I’m fine if you people destroy the institutional legitimacy of the Supreme Court. I don’t look to it as my political ally like you all and really have little faith in it already.

      1. The Supreme Court — when was the most recent Democratic majority? — has been much of what has kept clingers in the game.

  41. “ McConnell argues that the difference between the two situations is that in 2016 the Senate was controlled by a different party from that of the president, whereas today both Senate and White House are controlled by the Republicans. I doubt that this politically convenient distinction will convince anyone but partisan Republicans.”

    You mean invoking The “Biden Rule” won’t convince Biden? I mean, it’s not like he argued for it if control was split while he was head of the judiciary committee or anything….

    https://www.politifact.com/article/2016/mar/17/context-biden-rule-supreme-court-nominations/

    1. I mean, it’s not like he argued for it if control was split while he was head of the judiciary committee or anything….

      Right. it’s not like that. As your own link notes, he didn’t say one word about control being split.

      And of course it wasn’t a “Rule.” It was musing about a hypothetical situation and what people should consider.

  42. It seems to me that the reason that Supreme Court membership has been increasingly politicised is that there are no longer compromise nominations arising when a President faces a Senate of the other party.

    This is partly driven by resignations being increasingly timed for political reasons, and partly driven by the difficulties that both parties have with accepting a compromise (more and more Senators are beholden primarily to their party’s primary voters).

    The last Justice to be confirmed by a Senate of the opposite party to the President who nominated them was Clarence Thomas, almost 40 years ago.

    It seems to me that a better approach is a compromise Constitutional Amendment which would achieve several things:

    End lifetime terms on the Supreme Court and replace them with fixed terms, so removing the issue of timed resignations (if a Justice dies or resigns during their term, then any replacement would be only for the duration of the original fixed term).

    Ensure that vacancies must be filled by the President and Senate at the time the vacancy occurred, so as to force a compromise. One possible approach to this would be that the fixed terms would end at the beginning of a Senate term (ie every two years). If no justice has been confirmed at the end of that period, the President and the Senate would each separately nominate three names and one of those six would be chosen at random. I expect that most of the time they would prefer to agree a compromise justice rather than risk getting someone they really dislike chosen at random.

    Some sort of similar approach to Circuit and District Court Judges would create a pool of moderates who could be appointed – one of the present issues is that there are very few Judges who are acceptable to both some (presumptively more moderate) Democrats and some (more moderate) Republicans.

    There are other possible approaches, but I note that Obama tried to nominate a compromise justice in Merrick Garland in 2016. While it’s arguable how much of a compromise he constituted compared to Sotomayor or Kagan, that was certainly his avowed intention. If the GOP Senate had had to negotiate, then even if they didn’t accept Garland, it’s possible that someone could have been found.

    And any situation where a significant chunk of the Supreme Court are moderate/compromise justices is one where the big court battles are mostly decided by the arguments in the specific case, rather than being decided in the appointments process. That would enhance the importance of the Court itself and lessen the importance of the battles over each new justice.

    1. Moderate is a political measurement untethered to the Constitution. If all you want is the politically moderate outcome in cases, just eliminate judicial review altogether. Our legislative process already makes it nigh impossible for any one side to pass fringe viewpoints into law.

    2. The last Justice to be confirmed by a Senate of the opposite party to the President who nominated them was Clarence Thomas, almost 40 years ago.

      29 years is “almost 40”?

    3. ” there are no longer compromise nominations arising when a President faces a Senate of the other party.”

      unless you count the Garland nomination, of course.

  43. If Republicans install a replacement, Democrats will justifiably believe that two seats have been stolen. I think they’re right. Some people don’t. It seems likely that their perspective is purely self interested rather than based on a common understanding of fairness, given the circumstances. I don’t support packing the court because it’s not fair. That holds as long as fairness does.

    1. If republicans use the constitutionally mandated processes to fill a Supreme Court vacancy, democrats will “justifiably” feel like the seat was stolen.

      That just about sums up liberalism right there.

      Liberals don’t think anyone else ever gets to win. Never, ever. If they lose, even though everything was done per the Constitution, they got cheated and are justified to blow everything up. To riot in the streets and burn our cities.

      Whatever.

      You cannot negotiate with such people.

      1. Why didnt Republicans use the “constitutionly mandated process” for filling Scalia’s vacancy? Because they’re spineless hypocritical cowards. Only inbred rednecks don’t see their hypocrisy. Now I’ll let you get back to fucking your daughter you inbred piece of shit.

        1. They did. With Justice Gorsuch. Too bad, so sad. You should have won the election if you wanted Merrick Garland in his stead.

          1. Yeah it’s too bad because Hilary got more votes. Conservatives need the backwards, inbred shit kickers in places like Wyoming and goddamn Mormon theocracy Utah to be overrepresented to win elections. GOP are hypocrites. They left Scalia’s seat open for nearly a year, but now with only a few weeks left until the election it’s hurry hurry hurry! Bill Clinton, W Bush, and Obama each served two terms and filled two seats each. Now we have the most unusual president we’ve ever had(who didn’t win the popular vote) filling three seats in one term. I don’t mind Gorusch, but Kavanaugh and Coney Barrett can fuck off. The worst part is goddamn looney Mormon Senator Mike Lee was on Trump’s list. Fellow looney Mormon Senator Romney showed us today Mormons can’t be trusted. Send all the mormons to the gas chambers!

      2. Liberals believe that the government does not represent them. They have a point. A president elected by a minority is trying to steal a second seat with the help of a senate quorum representing a minority of the population. One of these seats was stolen from a president elected by a clear majority, and the other likely will be. The minority knows exactly what they are doing, they see demographic changes coming and are trying to lock in their antiquated views so that future large majorities will be paralyzed. The minority is trying to lock in a government that does not represent the people. How British of them.

        1. You can affix whatever labels and use whatever adjectives you like to describe replacing Scalia and Ginsburg through the process mandated by Article III. Stolen! British! Unrepresentative!

          Don’t care. You’re just proving liberals throw a fit and take the ball home with them whenever they don’t get their way.

          Blow up the Court because you blah, blah, blah. That’s fine by me. My whole life I have been seeking to undermine its authority. I will be tickled pink when those who have lived by the Supreme Court kill the Supreme Court.

        2. A president elected by a minority

          Get this through your thick skull: there is no “popular vote” in American presidential elections. We have an Electoral College because if we didn’t, New England wouldn’t have ratified the constitution for fear of being outvoted by the south in every presidential election. We haven’t abolished the electoral college because if we did, any state with a smaller population than New York or California would have a very strong reason to secede.

          So quit your fucking whining.

          -jcr

          1. ” We haven’t abolished the electoral college because if we did, any state with a smaller population than New York or California would have a very strong reason to secede.”

            If there was a way to do that. Hint: we settled that there isn’t back in1865.

    2. Democrats will justifiably believe that two seats have been stolen.

      “Justifiably”, my ass. Trump’s the president, and the constitution gives him the responsibility to nominate justices to the court. There’s nothing in the constitution that says he has to wait just because the other side of the Ruling Party will have a conniption if he doesn’t.

      -jcr

      1. As was established in 2016, that doesn’t mean Mitch has to schedule a vote.

      2. There’s nothing in the constitution about the number of justices either, nor the number of states. Hence the benefits of conducting business according to norms in addition to in accordance with the law.

    3. “If Republicans install a replacement, Democrats will justifiably believe that two seats have been stolen.”

      Nope. just the one was stolen.

  44. Making a deal like that sounds like a good idea. Problem is McConnell and Graham have Trump’s lying dick so fardown their throats they’ve become liars too that will say anything if it’s politically advantageous even when they know they’ll do the exact opposite. Spineless cowards, so is Collins. I was against packing until someone pointed out its not much different than when the GOP left Scalia’s seat open for nearly a year. It’s manipulating the court for political gain and since the GOP does it the Dems should. I know all the inbred commenters will call me a liar. If I’m pissing off the looney right inbreds then I’m doing something right. Send all the mormons to the gas chambers!

    1. Time for your meds.

      1. Time for you to fuck off

    2. Send all the mormons to the gas chambers!

      The Mormons I know are rather better armed than you lefturds, and most other Americans would far rather hang you than them. Bring it on, asshole.

      -jcr

      1. Even if they have me out gunned if they’re Mormons they’re goddamn morons. Their beliefs are nonsense and anyone who believes what they believe is a moron. They worship a pedo con artist. If you’re a Mormon shelterer you can’t be smart either. Have fun in the gas chamber! Send all the mormons to the gas chambers!

      2. “Most other Americans would hang you not them.” HAHA you inbreds really think you’re the majority? Why did Hilary get more votes and why will Biden? If you’re friends with evil, treasonous Mormons you’re an u american traitor too. Send all the mormons to the gas chambers!

        1. *UNAMERICAN traitor too. Mormons are destroying America and must be exterminated to save our country. If you support them you are commiting treason!!! Send all the mormons to the gas chambers!

  45. That’s not a compromise, that’s “cave to the Democrats’ threats now, so they won’t need to act on them (this time).”

    1. No, that’s a compromise. Republicans won’t do what they have the power to do and want to do, in exchange for Democrats not doing what they will have the power to do¹ and want to do.

      ¹Of course, that assumes Democrats win; if they don’t, then they won’t have the power. But in that case, Republicans haven’t lost anything since they can put Justice Barrett on the court a few months later.

      1. No deal…Tell me, though. Why would Team R trade away a certain thing: Team R POTUS + Team R Senate that can (and will) confirm a judge to SCOTUS for a vague ‘we pinky swear’ promise from Team D? There is nothing in recent history that gives this citizen any confidence that Team D would deliver on what they promised.

        There is no rationality to that expectation. Frankly, Professor Somin is a wonderful law professor, and I really enjoy his posts, but his negotiation skills and proposal selling skills are crap, if this post is his attempt to ‘sell’ the idea.

        1. Gang of Eight-type coalitions have a history of enforcing compliance with such compromises.

          1. Of course if the Democrats suddenly had 60 Senators, a Gang of Eight would be impotent. Wake me when that’s plausible.

        2. Somin comes from America’s mandarin class and therefore has an outsized incentive to protect judicial supremacy in America.

          The Supreme Court, on the whole, serves the Somin’s at the expense of the underclass. Frankly, a 5-4 Court with an RBG probably delivers Somin more victories than a 6-3 Court with Barrett in RBG’s stead.

          So really, this grand compromise of his really isn’t a compromise. He is advocating his self interest: keep the ruling class, his class, empowered by maintaining the institutional credibility of the Supreme Court.

          1. Your clairvoyant detection of his fealty to a hypothetically conspiratorial mandarin class is impressive.

            1. He’s not wrong.

            2. You don’t need to be clairvoyant to know how people like Ilya Somin think. I have lived my entire professional career amongst them. I even clerked for the same exact appellate court as this particular member of the self-styled elite. Using one’s eyes and ears suffices to predict how they think because they all conform to fit in. Just like every other tribe.

              1. OK lol, but next I suggest throwing in something about Georgetown cocktail parties.

              2. I even clerked for the same exact appellate court

                Cool story, bro.

                Oh ye of little proof!

                -jcr

        3. Why would Team R trade away a certain thing: Team R POTUS + Team R Senate that can (and will) confirm a judge to SCOTUS for a vague ‘we pinky swear’ promise from Team D?

          Asked and answered: because if the Democrats are willing to pack the court even when they’ve promised not to, then they’d certainly pack the court if they haven’t promised not to. In which case the “certain thing” has no real value. Replacing Ginsburg with Barrett only has value to the GOP on a 9-person court; on a 13 person court, it doesn’t.

          1. If court-packing is a foregone conclusion, then there is no point it making nice with Democrats and waiting until after the election. Either way the SC is doomed, and it will be the Democrats doing. Hopefully it results in an implosion of the Democratic party.

            Libertarian moment.

            1. Not to mention that to tip it, they’d need to confirm four justices, not two. Good luck selling the American public on that. And if they don’t retake the Senate by a healthy margin, good luck on getting any of those nominations through.

        4. “Why would Team R trade away a certain thing”
          Because the long-term loss would be bigger than the short-term gain.

  46. Threat: if you do X, I’ll do bad-thing Y.
    “Compromise”: if you don’t do X, I promise not to do bad-thing Y.
    “You’ve got nice Supreme Court here. It would be a shame if something happened to it”

    1. More like “If you try to screw up our court, we’ll have to take serious measures to fix it”

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  49. If the Dems sweep in November, then President Harris can appoint the entire Senate Democratic caucus to the court. Most cases can be resolved by a panel of the original nine, and in no case need the Senators trouble themselves with briefs or oral arguments. That won’t be why they’re there.

  50. While I doubt this will happen it is a good solution. I worry about court packing much more than I worry about the next justice. This is also a good deal for Republicans. It give them something to campaign on for the election. They are not really losing a seat as RBG was not a conservative justice, so different then when Scalia died. Finally it does not set up the court to be opposed to the current direction of the culture. The country is changing and a SCOTUS supporting a white male dominated culture will inhibit the changes the Republicans need to make to keep up with that culture.

    1. That sounds like reasoned consideration. You aren’t a Republican, are you?

  51. Sounds like a terrible “deal”. There is already precedent for election year appointments. The only deal that would make sense is to demand the Democrats vote with Republicans on an Amendment fixing the court at 9. If Republicans and Trump offer such a deal, it would be a stroke of brilliance. Dems will refuse the offer, revealing their preferences. Then Republicans can go ahead with the confirmation. In the extremely unlikely case they take the deal, we have eliminated court-packing as an option (repealing an Amendment is much harder than breaking an empty promise).

    One way or another, Democrats will rig the system. 4 years of Trump has made them rabid.

    1. “Democrats will rig the system. 4 years of Trump has made them rabid.”
      Has taught them how.

  52. You don’t make deals with people threatening you when you have the power and the votes to confirm. You jam the nomination through and then tell them to suck on it when they complain.

    As for the complaint that “the voters should decide”, they did. They gave the GOP the White House in 2016 and the Senate in 2018. So they get to make the pick. Period.

    1. This is, of course, less about the opening in 2020 than about the opening in 2016, when R’s established that Presidents don’t pick Supreme Court justices in election years. The D’s didn’t buy it then but they said “fine. We’ll remember this” and it turns out they do remember.

  53. I see packing the Court as an empty threat. As Biden stated, the Republicans would just add more the next time they take the Senate.
    That said, I do think McConnell should wait until the winner of the election is sworn in.

    1. “That said, I do think McConnell should wait until the winner of the election is sworn in.”

      But Biden won’t pick a raving Conservative and so the new McConnell rule will be that Presidents don’t get to pick justices during the last 4 years of their term, and we’ll have a shorthanded court forever.

  54. Simple long-term solution: The Court gets one new member during every term of Congress (excluding lame duck periods), regardless of any fluctuation in size. No more jackpots.

    One per two years happens to be the historic average.

  55. The Dems under Pelosi and Schumer are not to be trusted PERIOD. No deals with them is worth the humiliation and deceit.

    1. You should trust Schumer and Pelosi about as much as you trust Mitch.

  56. As one of those “moderate Democrats” you refer to, I’ve long opposed court packing for the reasons you note. It would be, if not the beginning, the acceleration of the end of the Court’s legitimacy and perhaps even a threat to its very existence. It would signify yet another milestone in the deterioration of the republic.

    But I don’t see how it can be avoided if the Republicans move forward with their plan to replace Ginsburg. Unilateral disarmament by Democrats is not a viable strategy.

    1. I’ve also long opposed it, for the same reasons that you’ve described. Aziz Huq summed it all up pretty well last year at ACS/New America discussion panel (@30:45) : https://www.youtube.com/watch?v=KaVeYNqZ8Vc

  57. This is all swell and all, but there isn’t any form of legal requirement for parties keeping promises made to each other. So unless a deal is made where both parties get their favored outcome simultaneously, it wont work.

    Now if the democrats agreed to ram through a constitutional amendment stating that the supreme court has 9 members, then, sure, Republicans can trust them enough to hold off on a nominee. But good luck getting that through by Nov 4th.

    1. A deal with an actual commitment mechanism. Not taking it on faith where there is no trust.

      Won’t happen, because they really would intend to renege on the deal.

      1. “Won’t happen, because they really would intend to renege on the deal.”

        Where “they” = Mitch McConnell.

    2. This is all swell and all, but there isn’t any form of legal requirement for parties keeping promises made to each other.

      And why should future Democrats be bound by the deals of current Democrats? Do you seriously believe AOC or her socialist buddies would stick to deals made by people they already have made clear they despise in their own party?

    3. ” if the democrats agreed to ram through a constitutional amendment stating that the supreme court has 9 members, then, sure, Republicans can trust them enough to hold off on a nominee.”

      If you could trust Mitch not to schedule the confirmation vote as soon as the amendment vote was final.

  58. this is one of those Onion articles, right?…..very funny…lol

  59. After Kavanaugh, the Russia hoax, and impeachment, Democrats simply have lost all credibility.

    1. 1. Kavenaugh – You have no more idea than I do whether Kavenaugh assaulted Christine Blasey Ford. And because the White House prohibited the FBI from performing a proper investigation, now we’ll never know.

      2. Russia Hoax – There was no Russia Hoax. If you think there was one, you’ve read neither the Mueller nor Senate Intel report.

      3. Impeachment – On this one you’re right. The impeachment was a modest hit to Democrat credibility. In addition to the Ukraine charges, Trump should have been impeached on at least five obstruction of justice counts contained in the Mueller Report.

      Other than that, cool story bro.

      1. 1) What a stupid fucking lie. None of the people Ford claimed were present corroborated her fantasy, and that included her best friend at the time. Hell, she couldn’t even cook up a halfway coherent story.

        2) Yes, there was a hoax. FBI agents lied to the FISA court, and the Steele dossier was pulled out of Steele’s ass for money, bought and paid for by Hillary’s campaign.

        3) Bullshit. Trump committed no impeachable offenses. I know you’re fully devoted to the “orange man bad” cult, but that horse is dead. Flogging it won’t help.

        Consult a mental health professional. Who knows, Trump Derangement Syndrome might even be treatable.

        -jcr

        1. The irony of Trump apologists accusing anyone of a derangement syndrome for their political views merits its own discussion.

          And no, that doesn’t mean I want to have it with you. Life’s too short.

          1. You don’t get more deranged than peace agreements in the ME.

            1. I see. So if I interrupt my spree of killing babies and puppies long enough to help one old lady across the street, I’m not at all deranged. Cool.

            2. “You don’t get more deranged than peace agreements in the ME.”

              Hard to tell, there’ve been so many.

        2. There’s a small possibility that your biased by your partisan alliance.

      2. CBF’s story was absurd fabulism.

        1. And you know this because your absurd fabulism detector is so sensitive and unfailing that FBI investigations to corroborate or refute the allegations of widely respected accusers without any of the documented history of pathological lying of, say, a Tara Reade, are now obsolete.

          Great news. Thank you for your service.

          Let me guess, Mr. Fabulism Knower: Donald Trump’s honesty is exceeded only by his selflessness.

          1. Don’t go saying mean things about the bestest President ever! People are saying better than Lincoln, even!

      3. Good grief, you are dumb, gullible, and ignorant.

        1. Ahh, the neo-confederacy weighs in. A couple of centuries late, as usual, but make yourself comfortable.

          1. Are you just going to sit there and let him call you a Republican?

  60. McConnell could have this wrapped up before the election. mic drop… boom.

    1. Boom,indeed.
      Thing is, Mitch’s default setting is “take no action”, so it might take him a bit to get started.

  61. If, as Schumer says, “all options are on the table”, then how about Trump quits dragging his feet on prosecuting everyone involved in fucking over Michael Flynn?

    Not to mention, investigating, indicting, and prosecuting Schumer, Pelosi, Biden, and Feinstein for the corruption that we all know they’re up to their eyeballs in?

    -jcr

    1. It turns out “we all know they’re up to their eyeballs in” isn’t evidence, and you can’t convict with out evidence.

  62. Senate Republicans Could (and Should) Reverse the Threat.

    As a response to threats by Democrats to expand SCOTUS after Biden’s presumptive victory, if Republicans confirm a Trump nominee to Ginseng’ seat, Republicans could (and should) threaten to keep any Biden or Harris appointee to any federal court from getting a confirmation vote, should Biden be elected and Republicans retain control of the Senate – the only way out for Senate Democrats being to enter a pre-election agreement not to expand or decrease the number of justices or judges on any federal court, nor increase or decrease the number of federal courts for the next x number of years.

    1. The thing with that is, you’d have to know who was going to control the Senate after the election, before the election. The only way to know who’s going to win the election before it happens is if you’ve fixed the election. They’re certainly trying, but they won’t know if it worked until afterwards.

  63. Flagged my own comment. Grrrr.

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  66. The problem is that such a deal would be unenforceable and the Democrats have proven time and time again that they do not honor their agreements.

    While I detest both Biden and Trump and will be voting for Jo Jorgensen for President, I firmly believe that Trump is obligated to nominate someone to replace Justice Ginsberg.

    It is perfectly acceptable for the Senate to decide to hold hearings and bring the nominee up for a vote or for that matter to decide to wait and not hold hearings until after the election.

    Both the Republicans and Democrats are hypocrites and their opinions are solely based on maintaining or increasing their power. If the roles were reversed, then their opinions would also be reversed.

    Personally, I’m more offended by the Senate Democrats threats to pack the courts than Senate Republicans deciding to move forward with hearings prior to the election or even voting a Trump SCOTUS nominee after the election and a Trump reelection loss.

    Packing the courts are an attempt to subvert the judicial branch, where swearing in a lame-duck SCOTUS nominee is simply taking advantage of the situation. The fact is that both the Republicans and Democrats have demonstrated their willingness to take advantage of political opportunities when present.

    Hopefully Jo Jorgensen will be our next President and real change can take place, but until then I will shed zero tears for the Democrat party’s plight that there is a very real opportunity presented to the Republicans with another SCOTUS appointment.

    1. “Packing the courts are an attempt to subvert the judicial branch”

      Packing the courts are an attempt to subvert Mitch’s 2016 shenanigans. It’s the R’s who want to get cases overturned by turning over the court membership, and that goes back to Reagan promising to only nominate anti-abortion SC candidates.

  67. Of course this all assumes Biden wins and Ds take the Senate. Otherwise it will all be different.

    1. 4 more years of Trump will be the beginning of the death spiral of the Republic. We’ll wind up with military parades through the capital and protesters disappearing from streets into unmarked vehicles and then never seen again.

  68. Dems won’t honor any handshake compromise. Orange Man Hitler is their whole paradigm. Gotta put it in writing: AMEND THE CONSTITUTION to limit the number of Supreme Court justices to 9, and appointments to 2 per President per term. It’d piss off Trump and his base, but that’s the best way to preserve some modicum of independence while cooler heads prevail.

  69. Constitution be damned!

  70. And the compelling reason for Republicans to accept this deal is, what; the Democrats, after all, are the standard of reason; and they should fill the vacancy ?

    The premise, Biden wins, the Democrats gain control of the Senate and keep control of the House and expand the Supreme Court.

    How so? Joe’s lost most of the East coast (except DE and MA) – or was this article written before the Democrats platform was announced? The Democrats have promised to eliminate the economy of very oil and coal producing state, which is TX, PA for starters. Joe has needs MI, but he’s not going to win it even if he disavows the Governor. Gretchen wasn’t on the short list before the pandemic, she was the short list! Count FL and NY out too, moving the embassy followed by the Abraham’s Accord .

    What is Bides pathway to the Oval Office without TX, FL, MI. PA and NY?

    Joe’s “path” to the White House begins across the street, at the Visitor’s Center.

  71. An agreement to not pack the court? That is BS unless it is passed into law.

    1. passing it into law doesn’t help if the people who can pass laws want to do it.

  72. Talk about pyrrhic victories: If the Democrats pack the court, they will not only surrender any moral high ground, they will also legitimize Republican retaliation in the event that they once again capture the Presidency and congress. (and the packing itself also makes such Republican success more likely).

    1. No, I think Republicans will go too far. Plus Democrats don’t need to start with court-packing they kill the filibuster and that allows them to add states and allows them to pass laws that get democrats more easily elected.

      The court strikes those measures down then the senate starts talking about packing.
      Democrats will essentially wait for an unpopular decision like overturning Roe or drastically expanding gun rights.
      My bet will be democrats amend the Voting Rights Act court strikes it down they democrats pack the court.

  73. Yawn. Whichever party appoints new justices, and however many of them there are, the new justices will support massive, gigantic government that has no resemblance to what the framers intended.

  74. There is nothing more comical than the party of Donald Trump admonishing others about democratic norms. When Republicans figure out how to appreciate a democratic norm that doesn’t directly advantage them, I’ll start to take their concerns about court packing seriously.

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  75. 10-year budgets are routinely balanced by tax cuts today in exchange for more revenue in ten years. Members of Congress have been so good at giving their word, there probably hasn’t been a time in modern history when this country hasn’t had a fully balanced ten-year budget. You can rely on it.

    1. The last time the government was operating in surplus, the Republicans were in charge. They celebrated by cutting taxes and we haven’t been in surplus since. That particular regime ended with us in two overseas wars and an economic meltdown. It took a couple of years to get out of that morass so now we have leadership who decided to pick a trade war with China and told Iran it was OK to build atom-bombs.

      The sooner we stop letting them be in charge of the country, the better off we’ll all be.

  76. Simply put: Republicans agree not to vote on a replacement for Ginsburg until January; Democrats agree not to pack the Court.

    Truthier: Spread your ass cheeks and beg them to be gentle in exchange for an unbinding pinkie-promise that they won’d do what you know they’re going to do anyway.

  77. I think the deal is a win-win for Republicans.
    If they offer it they are viewed as trying to keep the court independent and that they keep their word.
    If democrats screw them then they still have a 5-4 majority and have a compelling argument to make to try to get Tester or Synema to change their vote. Remember if they win the senate statistically speaking it will be under a 50-50 split with harris breaking the tie. Furthermore, they could also include the filibuster in the deal so that when they are the minority democrats have to muster 60 votes to pass anything. If democrats break the deal then Republicans can retaliate with everything they have next time they are in power.
    Yet the best part of the deal is that they can still have their cake and eat it too. get these promises out of democrats and be able to hold the majority in the senate were they can then moderate the pick for Ginsburg’s chair or Trump can win it all get the chair and have a promise for no court-packing. Either way, I see it republican have a 5-4 or a 6-3 majority and they neutralize a court-packing plan.
    Electorally speaking they’re most vulnerable senators like Cory Gardner and Susan Collins get a boost in their elections.

    1. “Republicans can retaliate with everything they have next time they are in power.”

      They’ve already established that this is going to happen.

  78. Court packing is gathering steam but so is eliminating the Electoral College and eliminating what’s left of the filibuster. You can cave in to threats but despots are goin’ to do what despots do.

    1. ” despots are goin’ to do what despots do.”
      he can go home to Florida and tell the Mar-a-lago staff he wants a parade.

  79. “But the basic idea is that Democrats get to force the GOP to stick to the same principles they advocated in 2016…”

    Sure. This reminds me of a Calvin and Hobbes strip from years ago. The mom is explaining to Calvin “When I am weaker than you, I ask for your freedom because that is according to your principles. When I am stronger than you, I take away your freedom because that is according to my principles.”

    Democrats have been talking about court-packing for years. Regardless of what happens, if there is a Biden/Harris (or is that Harris/someone else) Executive branch and a Democrat Congress they have promised, for years, to pursue court-packing to ensure a hard left Supreme Court for decades to come. Any accommodation, or conciliatory offers, are irrelevant.

    1. Great quote – but apparently it’s from Dune not Calvin and Hobbes (added to a CAH strip by someone) https://www.hollywoodreporter.com/heat-vision/calvin-muaddib-replaces-tiger-whimsy-629941

    2. ” This reminds me of a Calvin and Hobbes strip from years ago.”

      What page of the Complete Calvin and Hobbes does this strip appear on? You say it doesn’t? Not anywhere in any of the volumes? If you can’t be trusted not to lie about that, how can anyone trust you not to lie about anything else?

  80. Right…and we can trust today’s crop of politicians to hold to their word? Sorry, ain’t gonna happen. The down and dirty facts are that liberal Democrats want to control everything, including the courts. Actually, all court appointees should be politically neutral. Liberals want judges who make their owns laws on the fly this circumventing the the already deconstructed US Constitution. You cannot trust the current regime of Democrats.

    1. ” The down and dirty facts are that liberal Democrats want to control everything, including the courts.”

      The current fight is over noted liberal Democrat Mitch McConnell’s attempt to control everything, including the courts.
      Just a little detail there you seem to have overlooked.

  81. Such a waste of white space! Reason is becoming a non-reason magazine.

  82. Why can’t a legal expert on the US Constitution simply support the notion that the Constitution provides the answer. It’s not complicated. The president and the Senate have to agree on Supreme Court nominees. It’s always been that way on nothing has changed. As for court packing, there’s nothing in the Constitution that prescribes the number of judges so there’s nothing to compromise on, although that is obviously an oversight. The only reason not to pack the court is because the next time the Presidency and Senate switch hands the other side will do the same. The size of the court will grow without bound and the Supreme Court will be obliterated. Court packing will fail to provide an advantage in the long term but will destroy the Supreme Court until an amendment is passed to provide a maximum number of SCOTUS judges, likely 9.

  83. If judges did what they were supposed to – make rulings based solely on adhering as close as possible to the laws and Constitution – we wouldn’t have these problems.

    1. “If judges did what they were supposed to – make rulings based solely on adhering as close as possible to the laws and Constitution – we wouldn’t have these problems.”

      No. You’d have these important questions settled in the streets.

  84. The author is describing extortion, plain and simple. The Republicans have an absolute legal process to go through to confirm a Justice, the Democrats threaten retaliation, since they know that they don’t have legal recourse now..

    1. “The author is describing extortion, plain and simple.”

      “Give back what you stole” isn’t extortion.

  85. Ilya Somin recommends Trump dealing with the Dems from a position of weakness (assuming that is true), and then hope for the best. That’s a cowardly approach, for sure.

    Compromise in politics is always based on pursuit of power, never on principle, so his mention of the “principles” the Republicans followed in 2016 or previously is just a silly joke.

    Trump is either going to win this battle, or he will go down in flames. If he appeals to the best in voters, he just might win both this SCOTUS nomination and his reelection, despite his character flaws.

    SCOTUS is fatally flawed, though, so getting any particular S.Ct. nominee is not likely to improve or protect our political system. The best path to liberty is for freedom-loving Americans to expose both Dems and Repubs as the authoritarians they really are, and discredit them one and all.

    If people want to be free, they will tell the politicians they can all go to hell.
    PG

    1. “Trump is either going to win this battle, or he will go down in flames.”

      I’d say “get your marshmallows and sticks out” but the fumes are very likely toxic.

  86. A lot of assumptions being made in this article that no citizen outside of the DC beltway can honestly make.

    Biden is not the clear favorite. The chance of the Senate flipping to the Democrats is no greater than the Republicans keeping it. The popularity of “court-packing” is about as popular now, regardless of who threatens its use, than it has ever been. Same with the “abolish the Electoral College”…as if it were a chartered service provided by academic elites.
    Personally I have no problem seeing the confirmation process fast-tracked for no reason other than having an odd number on the bench in case this election ends up as FUBAR as 2000. Someone of sober judgement needs to be available to make sure the election process doesn’t turn into an irreparable cluster fuck.

  87. Create a new federal court for yellowstone park to hear cases of people walking their dogs off leash and assign the new judge to that court for life and add a new judge-Garland. Everyone on the court gets 2 to 18 year terms, starting with longest serving. Each is assigned to this new yellowstone court when his or her term ends. Avoids the arms race involved with court packing. It also punishes the appointee for accepting trump’s appointment.

  88. I get paid more than $120 to $130 per hour for working online.YTg I heard about this job 3 months ago and after joining this i have earned easily $15k from this without having online working skills…Click For Full Detail.

  89. its really great oppertunity of this post but..READ MORE

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