Regardless of what Trump and Mitch do, the Democrats will (1) Eliminate the Filibuster, (2) Grant Statehood to D.C. and maybe P.R., (3) Expand the Lower Courts, and (4) Expand the Supreme Court [Updated]

It is a matter of when, not if.

|The Volokh Conspiracy |

For some time, there has been a poorly-kept secret in Washington: as soon as the Democrats take power, they will make four power moves. To date, most prudent Democrats have refused to discuss these four moves aloud. But now with Justice Ginsburg's death, the cat is out of the bag. Jeffrey Toobin lays out the roadmap in the New Yorker:

The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through. If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.

  • The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all.
  • Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder.
  • Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President.
  • Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute.

If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that's happened, that's a game they should learn to play.

I disagree with only one of Toobin's predictions. He writes that the these outcomes are "possibilities" "if Trump fills the Ginsburg seat." Argle bargle. These steps will happen no matter what Trump and Mitch do.

However, I disagree with Toobin's ordering. I agree with the first step: the filibuster will be nuked. I've long predicted this this step would happen in the wake of a calamity. For example, there is a mass killing, and Republican senators filibuster an assault weapon ban. At that point, there will be a majority to eliminate the filibuster. But given the current climate, the Green New Deal, or some such bill could be deemed momentous enough to pass nuke the filibuster.

Toobin lists statehood for D.C. as the second option. I disagree. The presently-constituted conservative Supreme Court may very well declare that bill unconstitutional. If the Democrats were smart, they would first pack the Supreme Court. New justices could be confirmed in the span of a month or two. After the Supreme Court has eleven members, then they can safely create statehood for D.C. by statute. (It isn't clear Puerto Ricans even want statehood, but things may change). The statehood bill would be subject to immediate challenge. But it will be upheld by a 6-5 vote. (Get used to that new number). As that statehood litigation is making its way though the courts, then the Democrats can pack the lower courts. Even without blue slips and cloture, it may take a year or more to fill all of those vacancies. The lower courts really should be the last step.

These steps will happen whether or not Trump fills the vacancy. There is still bad blood from the Garland nomination.

Update: I deleted from this post a line that alluded to RBG's last words. They were in poor taste, and my point failed entirely. I sincerely apologize for them.

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  1. I guess no one is leaking directly to Prof. Blackman. He omitted enlargement of the House of Representatives (and corresponding enlargement of the Electoral College).

    1. As districts get smaller, it gets harder to gerrymander them.

      The original “Article the First” constitutional amendment would have resulting in one respresentative for every 60,000 people. It is still pending and only needs 27 more states to ratify. Instead of a few representatives from NYC, we would get over 100. Instead of Nancy Pelosi, we would get 8 people.

      I am not sure this is a bad thing. It would dilute the power of individual House members. Gone would be the days of millionaire Maxine Waters types.

      1. It would probably be a net good if the congress were to expand greatly.

        But one problem.. diluting the power of the individual representative increases the power of the party. With a handful of votes, a small group of representatives can push their issue into a big bill as things stand. With a few thousand representatives, a coalition of 5 couldn’t do a damned thing.

        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.

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        2. It could possibly help parties, but it also substantially lowers the entry costs for new parties (because they can build a base 60,000 time). I think it overall hurts parties too.

      2. And if actual gerrymandering, drawing funky districts to manipulate outcomes, were the Democrats real problem, that would help them.

        But their real problem is that their voters are inefficiently distributed, concentrated in districts that go as high as 90+% Democratic. And so are wasted “bouncing the rubble”.

        The problem here is that increasing the number of districts, unless you throw the compactness criterion out the window, just makes it harder to dilute those crazy areas with votes from more reasonable areas, and just brings the vote inefficiency into sharper focus.

        Increasing the number of Representatives actually HURTS the Democrats in the House, unless you combine it with real gerrymandering.

        1. If it won’t matter (and it might not!), then maybe the GOP should stop going so all-out to oppose any kind of limitation.

          1. I’ve never heard that the GOP was going all-out to oppose increasing the size of the House. Did they vote down a bill recently that I missed?

            1. Satcastro lives in a world of strawmen.

            2. Do you deny that the GOP hates any kind of limits on gerrymandering? The Dems are lukewarm, but the GOP does in deed pull out all the stops. At least since 2010.

              1. Sure the GOP hates Democrat judges imposing limits on GOP gerrymandering. Like the Pennsylvania Supreme Court enunciating some anti-gerrymandering principles and then immediately breaking them to tweak a few extra districts in the D direction.

                The GOP is also big on the States trumping the Feds on election laws and redistricting, which makes a national anti-gerrymandering law problematic for them.

                However, since the Constitution allows Congress to make laws governing Congressional elections, I suspect they could be brought to swallow some neutral federal anti-gerrymandering rules.

                The thing is, the Ds don’t want neutral anti-gerrymandering rules, based on outlawing outlandish shapes, and not arbitrarily splitting communities into different districts. The trouble is – drawing that kind of neutral district, respecting geography and communities, doesn’t help the Ds that much. Because Ds would still find themselves packed into districts with a large D majority, whereas the Rs would have smaller majorities in more districts. The real GOP advantage is that they are the majority in most of the country, but only 60-40 or so. The Ds waste tons of votes losing to Rs, but the Rs don’t waste tons of votes losing to Ds. This is a feature of where people live. Any R gerrymandering is just icing on the cake. Which is why the Pennsylvania Supreme Court was not content with following its own anti-gerrymandering rules. It had to cheat.

                What the Ds really want is not fair districts respecting geography and community, and getting rid of the outlandish lizard shapes – they want proportional representation.

                1. Not just judges, but also legislatures. At the state level – I wasn’t just talking about federal reforms.

                  Maybe don’t pretend you care about Federalism with NYC now being anarchist.

                  The thing is, the Ds don’t want neutral anti-gerrymandering rules, based on outlawing outlandish shapes, and not arbitrarily splitting communities into different districts

                  Except that they do. They also don’t like how cities are disfavored in our system, but they also try and avoid the stacking and cracking shenanigans going on today.

                  You argue that Dems are arguing in bad faith because they want proportional representation. But that’s a different push; someone can want proportional representation and also not want gerrymandering while they wait.

              2. Can you provide examples of this?

                1. Wisconsin is a great example on the legislative level.
                  Also plenty of court cases.

                  I don’t really love the Intercept, but this looks spicy:
                  https://theintercept.com/2019/09/27/gerrymandering-gop-hofeller-memos/

                  1. Do you wish to compare this to the Democrat “lukewarm” gerrymandering? It was odd that until just recently, even though TX went GOP every election, their Congressional delegation had a Democrat majority for decades.

                    Do not whine when people use your tactics against you.

      3. If the population exceeds ten million, “Article the First” requires only “that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.” These conditions have been satisfied for some time; ratifying the lost first amendment would have no effect.

        My pet idea:
        Start by assigning one seat to each State. If adding one seat to the most under-represented State would make it the most over-represented and widen the ratio between the extremes, STOP. Else do so, and repeat.

        1. Interesting proposal. I built a script to see what that algorithm would turn out. It was an entertaining “bubble-sort”. The result was 546 total representatives split as:
          CA 68
          TX 50
          FL 37
          NY 33
          PA 22
          IL 21
          OH 20
          GA & NC 18
          MI 17
          NJ 15
          VA 14
          WA 12
          AZ and MA 12
          TN and IN 11
          MS, MD and WI 10
          CO and MN 9
          SC, AL and LA 8
          KY and OR 7
          OK and CT 6
          UT, IA, NV, AK, MI and KS 5
          NM, NE, ID and WV 3
          HI, NM and ME 2
          MO, RI, DE, SD, ND, AK, VT and WY 1

          Interestingly, your “widen the ratio between the extremes” parameter had no result on the algorithm. A simple min/max of the population/representative was sufficient.

          1. Interesting!

            I think you have some state abbreviations out of whack (you have AK and MI on the list twice)
            AK = Alaska
            AR = Arkansas
            MI = Michigan
            MN = Minnesota
            MO = Missouri
            MT = Montana

            1. Oops, you are correct. The “AK” in the row with 5 reps each should be AR. The “MI” in the same row should be MO. Apologies. (I’ll try to keep my caffeine levels higher next time.)

      4. Lately I’ve seen more than a few people praising this new invention called a “Computer.” I haven’t seen one, yet, but I hear they can do amazing things.

    2. No, Blackman’s argument doesn’t come from leaks or any other credible / plausible source. I’ve had a hard time getting a handle on the professor until just this very minute. Despite his effusive record posting, I would never claim he’s an unctuous toady like – say – our Attorney General. Fortunately, I’m rereading Mantel’s Cromwell books and see just the model.

      He’s a courtier, available at any moment to smoothly say whatever his Lord wants to hear, and so to justify his Lord’s thoughts and desires. In this case, Trump wants to squeeze a SCOTUS nomination into the last days prior to the election.

      Yet this has consequences. One week ago there was zero chance of any serious Democratic effort to pack the Supreme Court; the proposal had nearly no backing and a sizable opposition. But if Trump goes thru with this power grab that will be reversed in a heartbeat, with overwhelming support for expansion among Dems. However this fact is inconvenient, something Blackman’s Liege Lord wouldn’t want to hear. Thus we have the professor (smoothly) giving the welcome news there are no consequences to his Lord’s desire, facts be damned.

      ( A skilled courtier should never be troubled with facts)

      1. They have been loudly and openly talking about packing the court for years. The rise of AOC and the Green New Deal brought all of this to the forefront of DNC politics.

        They are way, way out there if you use 1970-2010 as your benchmark.

        They are against the electoral college. Against the first amendment. Against the second amendment. Against free choice in healthcare providers (semantics, they would say “universal healthcare”, but mean state run healthcare). They are against private ownership of companies (not an establishment position, but that is where the energy is, and even Biden has paid lip service to the notion). They are bizarrely for illegal immigration, but against immigration reform that would obviate the “illegal” part.

        There is nothing of their priorities that would have even been remotely conscionable even 15 years ago. It is truly remarkable how quickly things have turned.

        1. That’s right, I’ve been seeing them talking about Court packing since well before Trump ran for President.

          I tried warning them when Trump was first elected: The Republicans had a narrow window in which to try to stave off Court packing, by proposing an amendment to fix the size of the Court, and threatening to pack it themselves if the Democrats didn’t agree. After the 2018 election that window closed. Court packing is now inevitable the next them the Democrats are in a position to do it, unless by some miracle the Republicans recapture the House this November, and go forward with my proposal. And I don’t see that happening, they’ll be lucky to reelect Trump and hold onto the Senate.

          1. The slight of hand here is ‘them.’

            There’s always been a few, but that was never anything with traction among the Dems before the Garland/Kavanaugh shenanigans.

            1. You mean the attempted “Borking” of Kavanaugh.

              We’re supposed to trust the folk who did that?

        2. Correct. The use of “them” and “they” is a standard Bellmore technique.

          Some – not all that many – Democrats have talked about expanding the Court. For Brett that translates into “the Democrats.” He makes no distinctions.

          1. Well, who are these Democrats…

            Here’s Kamala Harris. Just, oh, the VP candidate (and given Biden’s age, likely president if Biden wins the election)

            “Harris said she was open to adding more justices. “I think it’s a conversation that we need to have. I am open to increasing the numbers on the Supreme Court,” she said, responding to a woman who asked about enlarging the court and prefaced her question with a complaint that McConnell “stole a Supreme Court seat.””

            1. And, as anyone can tell you, being open to something is the same thing as advocating for it.

            2. That’s one who’s open to a conversation about it. Not “the Democrats.”

              Are “the Republicans” all QAnon fans because of Marjorie Greene, and because of Trump’s apparent fondness for the nutballs?

              That’s the Bellmore method applied.

              1. I like how you live in a world where the stitch in time that saved nine didn’t exist.

                Why are liberals so dishonest?

        3. They are against the electoral college.

          True. Which is an eminently sensible position.

          As to the rest of your claims, they are blithering idiocy.

          1. No it isn’t — in 2016, Trump went to Bangor, Maine for *one* electoral college vote, which he got, that of a congressional district. Without the Electorial College (and Maine assigning the house votes), he wouldn’t have bothered.

            1. “No it isn’t — in 2016, Trump went to Bangor, Maine”

              Trump went anywhere he could get a fawning crowd to tell him how great he is. He still would, if there were any such crowds available.

              1. The fact is, he went there and people realized he wanted to represent them, that they actually mattered. That’s how it’s supposed to work

            2. in 2016, Trump went to Bangor, Maine for *one* electoral college vote, which he got, that of a congressional district. Without the Electorial College (and Maine assigning the house votes), he wouldn’t have bothered.

              Which proves what? In fact, it proves the opposite of what you suggest. Shouldn’t a candidate try to reach as many people as possible, not as many acres?

              1. shouldn’t you realize we are and were designed as a collection of states with no state being lessor than another?

                I know you and sarcastro failed basic civics and the foundation of America, that you despise states exist. But they do. It is why you hate the senates equal representation, the electoral college, etc.

                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…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

        4. “They have been loudly and openly talking about packing the court for years.”

          Who’s “they?” I’ll tell you who. It’s a minority insurgent faction of Democrats. Mainstream Obama Democrats have consistently resisted it.

          Take this comment section for example. Arthur has been pushing court packing since at least 2016. None of the other liberals as far as I can tell have joined him. I’ve objected to it more than once. But for me, and I’m only even a former Democrat, hypocritically pushing through an RBG replacement may well be the last straw before I throw my lot in with the court packers.

          1. And that’s a very important point. It’s far easier to treat your opponents fairly if you have the sense that they’re treating you fairly. I was firmly opposed to court packing until 24 hours ago. But the raw hypocrisy of denying Obama an appointment in an election year while giving Trump one is making me seriously reconsider.

            1. 1) Why were you firmly opposed to court packing? Do those reasons change simply because a SCOTUS opening appeared?

              2) If the Democrats had this opportunity to appoint a new SCOTUS justice in an election year, do you think they should’ve taken it? Why or why not?

              1. I think that whatever the rule is, it should be applied consistently and even handedly, and that’s my bottom line. If Garland had been confirmed in 2016, then so should whomever Trump nominates. Since Garland was not given a vote in an election year, that’s the precedent now, and the Republicans who created it should be stuck with it. My own preference would have been to confirm both Garland and Trump’s nominee but that’s not what happened.

                I was opposed to court packing on the same principle: it’s an abuse of the process for temporary partisan gain. But since the Republicans are now giving us that precedent as well, I don’t think the Democrats should fight with one hand tied behind their backs.

                1. I think that whatever the rule is, it should be applied consistently and even handedly

                  The rules are, in order of precedence :

                  (1) the Senate majority can confirm or not confirm a nominee as it pleases

                  (2) it has been customary to give SCOTUS nominees a hearing, rather than simply to ignore the nomination (as is far from unknown with other types of nominee)

                  (3) however, by way of exception to rule (2), the Senate is not obliged to give a SCOTUS nominee a hearing in a Presidential election year, if the President and the Senate majority are from different parties

                  These rules have been applied consistently by the GOP Senate majority in 2016 and – if they proceed – in 2020.

                  Rule (3) was a McConnell invention (with homage to Biden), to save his Senators up for re-election the potential political cost of actually voting down an Obama nominee in 2016. McConnell judged the political cost of denying a hearing to be lower than the cost of voting down an actual flesh and blood nominee.

                  There is no reason to believe that an Obama nominee would have been confirmed absent McConnell’s rule. Indeed from the perspective of 2020 it seems twee and fairy tale-ish to imagine that an R Senate is ever going to confirm a D SCOTUS nominee, or vice versa.

                  1. There is no reason to believe that an Obama nominee would have been confirmed absent McConnell’s rule.

                    Actually, there is.

                    There are two possible interpretations of McConnell’s refusal to have a vote on Garland.

                    One is yours: “to save his Senators up for re-election the potential political cost of actually voting down an Obama nominee in 2016.”

                    The other is the opposite: To keep Garland off the Court, because he knew that if it came to a vote Garland would be confirmed.

                    In light of previous statements by Republicans like Orrin Hatch about Garland it would have been hard to get a majority to reject him.

                    Regardless of which explanation is correct, of course, he was protecting his gang from actually having to vote.

                  2. Lee, the problem is that nobody believes (3). Not even the Republicans believe (3). And yes, I do think Garland would have been confirmed had he been given a vote, otherwise McConnell wouldn’t have prevented him from having a vote.

                    1. I do think Garland would have been confirmed had he been given a vote

                      I’m afraid I think this is very unlikely. The Rs had 54 Senators in 2016. That means fourteen of them would have had to have voted to bring the matter to a vote. 14 out of 54. Really ?

                      Note by way of comparison – when Kagan – easily the ablest and best qualified D nominee in a generation, came up for a vote in 2010, only five R Senators voted for her. And that was six whole years earlier in the confirmation wars, and before Harry Reid’s nuclear strike.

                2. Do you honestly think Garland would have been confirmed since the pubs controlled the Senate?

                  1. Why do you think Senate took the trouble to stonewall so hard?

                    There would have been more of a political price to pay to vote him down for no reason after a hearing than to screw with the process and vote him down for no reason without a hearing.

                    1. Plus, as bernard noted, McConnel whipping the actual vote against Garland was far from assured.

                3. So, because the kid in front of you cut in line, the proper response is to shoot them with a gun in the head?

                  One of these (Not confirming a nominee) is not like the other (Court packing).

                  1. You keep using these gun and bomb and terrorism metaphors. Your ‘this is a bigger deal than that’ doesn’t have a lot of substance to it. Which is why you keep reaching for that drama.

                    1. Because COURT PACKING IS A BIG FREAKING DEAL.

                      It is literally, the go-to option for overriding constitutional restraints and restrictions. Want to stay in power past term limits? Pack the court first. Then have them rule it’s constitutional for you. Want to pass unconstitutional laws, destroy personal rights? Pack the courts.

                      Dictatorship after dictatorship, this is what they do. Court packing destroys the integrity of the courts, and eliminates the courts as an effective 3rd branch to separate the powers out.

                    2. Armchair Lawyer, suppose I were to agree with you that the Democrats are doing the equivalent of holding a gun to a child’s head and saying, “If you cut in line ahead of me I’ll blow your head off.” I don’t agree; I think that’s a grandly idiotic analogy, but I’ll work with it for sake of argument.

                      Even if the Democrats are completely over-reacting, don’t forget that the child can prevent having his head blown off by not cutting in line, which is what any child with an IQ over room temperature is going to do under the circumstances. Maybe Republicans shouldn’t do something virtually guaranteed to provoke a Hiroshima-type response from the Democrats. Have you tried mentioning this to your fellow Republicans?

                    3. Krycheck,

                      For God’s sake! Your response is just “do what the crazy people who are threatening to kill people want,” so they don’t kill people? Really?

                      That is the literal definition of terrorism (and successful terrorism, at that).

                      Think about it.

                    4. So dumb, if “court packing” was so bad it would be unconstitutional.

                    5. AL, Garland was also a big deal, just not to you.

                      Kavanaugh being rammed through was also a big deal, just not to you.

                      All you have is subjectivity, which is why you reach for the drama button.

                    6. For God’s sake! Your response is just “do what the crazy people who are threatening to kill people want,” so they don’t kill people? Really?

                      No, he explained why the threat to kill people exists only in your imagination. It’s a separate question why, if you really do believe that, you’d rather let people be killed than give in to the killer’s relatively minor demands.

                    7. Question for Armchair Lawyer:

                      Since you consider court packing an act of terrorism, how do you think the Democrats should respond instead?

                  2. I’ve seen bad analogies before but that one takes the cake.

                    Armchair Lawyer, not confirming a nominee is a sub-species of court packing, in which one side tries to ensure that its people will be a majority of the court. Different methods, same intended result.

                    And while cutting in line may not justify shooting someone, it will justify ignoring complaints from the first line cutter when someone later cuts in line ahead of him.

                    And if you don’t want the court to be packed, then make sure your fellow Republicans understand that that’s what they are risking if they confirm a nominee between now and January.

                    1. Different methods, same intended result.

                      Also, both are norm-breaking but legal, i.e., equally (il)legitimate.

                    2. No. Not confirming a nominee is part of the advice and consent process.
                      The Democrats didn’t confirm Bork. Republicans returned the favor with Garland.

                      Court packing is not normal. Using threats to get your way is valid.

                      If Trump threatened to nuke New York and San Francisco, unless he got reelected, what would your response be….

                      “uh oh, better give in. We don’t want to hurt people, so let Trump get his way”

                    3. Edit. “Using threats not valid”

                    4. McConnell was dumb to make up an excuse with Garland…he should have simply said Garland was never going to get enough votes to be confirmed so he was helping Garland out by not having a hearing (see Bork, Thomas, Kavanaugh to see how sideways a hearing can go). Btw, Blackmun, Stevens, Kennedy, Souter are examples of justices you get with a president and senate being controlled by opposite parties…so really Garland was a stretch for Obama and he probably should have went with Gorsuch. Oh, and 1916 CE Hughes quit the Supreme Court to run against Wilson so obviously the Supreme Court wasn’t that important historically.

                    5. If Trump threatened to nuke New York and San Francisco, unless he got reelected, what would your response be….

                      “uh oh, better give in. We don’t want to hurt people, so let Trump get his way”

                      If it was persuasively shown that Trump couldn’t be stopped from detonating nuclear bombs in NYC and SF unless he was given a $100 billion, re-elected president and/or went on a date with Gal Gadot, you bet I’d cave and figure out how to lock his ass up forever after the country was safe again. Why? Are you saying you’d let him kill 10 or 20 million people just to get Amy Coney Barrett on the Supreme Court? I certainly hope not.

                      But the thing is, nobody’s threatening to nuke NY or SF. What they’re threatening is more like showering them with confetti. It’s undesirable. It’s annoying. Under normal circumstances I strongly oppose it. But if you think it’s the same as a nuclear bomb, I’m I can’t help you.

                      But yes, I would refuse to expose Gal Gadot to a night with Donald Trump (or do the other things) to save NY or SF from being littered on.

                    6. 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…BOp 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. 2) If the Democrats had this opportunity to appoint a new SCOTUS justice in an election year, do you think they should’ve taken it? Why or why not?

                In 2016, the Democrats had such an opportunity, and they took it. The fact that making an appointment isn’t the same thing as getting Senate confirmation kinda sucked for them, but you can’t say they didn’t try.

            2. I read a lot of leftist commentary & have seen dozens of people suggesting (or demanding) the filibuster be eliminated. Court packing? Virtually zilch. Personally I think it would be a bad development for the country, but if this nomination goes thru after Garland the Democrats will have no choice.

              To put it bluntly : Blackman is lying when he says court packing was inevitable from the Democrats regardless of Trump & McConnell’s actions. There is no evidence to support that position and a large number of people on record opposing it. Blackman peddles this falsehood because he knows that’s what his audience wants to hear. They want to be relieved of the responsibility for their choice.

              1. Hell, BIDEN has spoken out against court packing.

                The liberals in conservative heads are a fascinating, exotic species. I’d love to meet one sometime.

                1. Hell, BIDEN has spoken out against court packing.

                  Sure, and Obama came out against same-sex marriage. What’s your point?

              2. If Republicans follow the 2016 precedent (the Lindsey Graham rule), then I would call my Senators to oppose any court-packing scheme if it is put forward anyway. If the Republicans swap out, I will seriously consider calling my Senators in support of court packing. And I think there are enough people like me that Democrats never would try court-packing if Republicans don’t do what McConnell/Trump threaten.

                Plus, the fortuity of the open Scalia seat is offset by the open Ginsburg seat. If the Republicans wait, there is no longer a credible claim that the Scalia-seat was “stolen” because they applied the same rule. If they do switch, those of us not happy with how the Garland nomination was handled but wouldn’t necessarily go with “stolen” before, will be fully on board with the “stolen” language and believe appropriate retribution is not only justified, but necessary.

                Blackman is lying. I am surprised that, upthread, somewhat didn’t seem him for the toadying courtier he is until just now.

            3. Have you bothered to even look at the history of Supreme Court nominations? Nearly a dozen were never voted on.

              Sorry that you live based on ignorance to fuel your views.

              1. Jesse, never let anyone tell you your gratuitous insults add nothing to a discussion. They’d be right, but don’t let them tell you.

          2. Every one of the libs here will find that last straw, and will end up supporting every single one of the items listed by Blackman. And when your side gains enough power you will all vote for Dems who advocate gun confiscation, hate speech laws, reparations, the green new deal and so forth, even if you now claim to be against any of that.

            The Democratic party has lurched strongly to the left and all of you will fall in line with that without so much as a “but wait..” Arthur today is you tomorrow.

            1. “Every one of the libs here will find that last straw, and will end up supporting every single one of the items listed by Blackman.”

              Every camel’s back has a load limit. Why you think you can keep piling on straw and blame the camel when it breaks is beyond me.

              1. Conservatives also have a load limit.

                1. “Conservatives also have a load limit.”

                  But conveniently short memories.

              2. How can a President exercising his prerogative, in fact his duty, to fill a Supreme Court vacancy be anyone’s last straw? Wanting to influence the court with people who may share your views is just politics. Threatening to make structural changes to the system just to gain and hold power is more than just politics. Pelosi even thinks that impeachment is a legitimate tactical weapon to prevent a nomination. Maybe most of those on your side aren’t literally trying to burn the place down but you seem to show little regard for the consequences of these radical moves.

                1. I know it’s hard to believe, but this is one instance where the shameless, lying, norm-busting hypocrite isn’t Trump. It’s McConnell.

          3. Take this comment section for example. Arthur has been pushing court packing since at least 2016. None of the other liberals as far as I can tell have joined him. I’ve objected to it more than once. But for me, and I’m only even a former Democrat, hypocritically pushing through an RBG replacement may well be the last straw before I throw my lot in with the court packers.

            I am in the same boat. I staunchly oppose court packing, but if the GOP says FYTW and rams Barrett through, I don’t see any reasonable, lawful alternative.

            1. Yup, sadly,

            2. ” I don’t see any reasonable, lawful alternative.”

              Novichok.

            3. Ridiculous.

            4. This isn’t ramming anything through; it’s a nomination to fill a vacancy on the court. Completely normal.

              1. If you’re claiming not to understand how if nine months is too close to an election, then seven weeks is ramming it through, you’re FOS.

                1. It was always about electoral advantage, regardless of what McConnell said at the time. It still is, well that and a spot of bad luck on your side. I don’t know if you have noticed but both sides have been playing hard ball for some time but up until now neither side has tried to field eleven players.

                2. Again, if you wish to remove all legitimacy from the SCOTUS, don’t blame others for your incredibly dumb decision.

                3. There’s no rule against trying to fill a vacancy within nine months of an elections. It’s been done all the time:

                  “–In 1828, a vacancy opened on August 25, but the Senate was out of session until December 1. John Quincy Adams sent up John Crittenden’s nomination on December 17, but the Jacksonian Democrats controlled the Senate and Adams had just lost the election to Andrew Jackson, so the seat was held open for Jackson to fill.

                  “–In 1852, a vacancy opened on July 19. Millard Fillmore sent up the nomination of Edward Bradford on August 16; the Senate, controlled by Democrats (Fillmore was a Whig), tabled Bradford’s nomination on August 31 and went home until December. Two more Fillmore nominees were rejected by the lame-duck Senate.

                  “–In 1860, a vacancy opened on May 31. The Senate was in session, and controlled by James Buchanan’s Democrats, but with the party fracturing in two (its second effort at a convention was held June 18-23, ending in a Southern walkout), the feckless Buchanan failed to submit a nomination before the session ended in late June, adjourning until December. By the time Buchanan finally submitted Jeremiah Black’s nomination in February, many of the Democrats had left the Senate as their states seceded, and Republicans now controlled the chamber. Black lost by one vote (on a party-line 26–25 vote), and the seat was left open to be filled by Abraham Lincoln.

                  “–In 1864, Lincoln’s nemesis, Chief Justice Roger Taney (the author of Dred Scott) died on October 13. Republicans controlled the Senate, and Taney had been an obstacle to the war effort, but the Senate was out of session between July 4 and December 5. On December 6, in the lame-duck session (after both he and the Republican Senate had won reelection), Lincoln sent the nomination of Salmon P. Chase, his former Treasury Secretary, as Chief Justice. Chase was confirmed that day.

                  “–In 1956, a vacancy opened on October 15. The Democrat-controlled Senate had recessed for the year on July 27. Dwight Eisenhower, the Republican president, made a recess appointment of William Brennan, a Democrat from the New Jersey Supreme Court. After both Eisenhower and the Senate Democrats were reelected, Ike submitted Brennan for Senate confirmation in January, which he won.

                  “–On June 26, 1968, Lyndon Johnson nominated Associate Justice Abe Fortas to be Chief Justice (replacing Earl Warren, who announced two weeks earlier that he would be stepping down), and LBJ crony Homer Thornberry to fill the open seat. This was the only election-year nomination rejected by a Senate controlled by the president’s party; a variety of ethical and ideological objections led to a bipartisan filibuster of the nominations. A cloture vote was held at Johnson’s insistence on October 1, the closest Supreme Court vote to an election. It was largely a face-saving vote. When the vote failed, Johnson withdrew the nominations. Fortas eventually resigned from the Court in disgrace, and Richard Nixon got to fill both seats.

                  “The only arguable precedent for a president delaying the nomination while the Senate was in session is Buchanan, and of course, that ended with the nation sliding into civil war.”

                  https://www.nationalreview.com/corner/supreme-court-why-no-justice-has-beenconfirmed-in-the-fall-of-a-presidential-election-year/?utm_source=recirc-desktop&utm_medium=homepage&utm_campaign=river&utm_content=featured-content-trending&utm_term=first

                  1. That’s all fascinating, albeit non-responsive.

            5. Same, David.

        5. “They have been loudly and openly talking about packing the court for years.”

          MUCH more accurately, some of they have been loudly and openly talking about packing the court for years, while most of they have been quietly ignoring the loud and open talking.

      2. One week ago there was zero chance of any serious Democratic effort to pack the Supreme Court;

        Democrats have been talking about this for years. The fact that Trump was elected alone is ample motivation for them. Of course Democrats will do it given the chance, no matter what Trump does.

        But if Trump goes thru with this power grab that will be reversed in a heartbeat

        Trump has the power to nominate and the Senate has the power to confirm; they don’t need to “grab” that power, they have had it for a long time.

        1. We can debate whether Trump should replace Ginsburg but this move would not be outside of traditional politics. If the Democrats could have, they would have replaced Scalia. What the Democrats are proposing to do, however, in their temper tantrum, is corrupt the system forever. There will be no reversing the 4 steps they plan on taking and it will usher in a totalitarian one-party state.

          We have Harry Reid to thank for this. He began the process when he was in McConnell’s position and even he has admitted it was a mistake.

          1. “We can debate whether Trump should replace Ginsburg but this move would not be outside of traditional politics. If the Democrats could have, they would have replaced Scalia.”

            If they had, then there’d be less sympathy for them. The Constitution says that the President at the time of the vacancy makes the nomination. McConnell overruled this in 2016, and non-Republican-partisans are remembering McConnell’s decision in 2020, while McConnell is busy pretending he can’t remember if he had anything to say in 2016.

            1. McConnell overruled nothing. The Constitution says that the President makes the nomination. He did. The Constitution says the Senate gets to confirm or not. They chose not.

              1. They chose to ignore the nomination, and refused to even meet personally with the nominee or hold a hearing and a vote.

                1. No, I agree, that was a sleazy move. They should have met with him, and asked him whether he wanted to get the hearing and vote, or just skip it. At least give him the courtesy of talking to him.

                  I’m personally of the opinion that ALL Presidential nominees should get up/down, roll call votes. It would take a constitutional amendment, but nominees should just be automatically confirmed if the Senate doesn’t act on them within some reasonable period of time.

                  But that’s not the law as it is.

                  1. That would be a great reform.

                    Forgive me, I do want the hearings still. Senators my be grandstanding popinjays, but some interesting jurisprudential questions sneak in there occasionally.

                2. Which is meaningful….how?

                  They are under no obligation to do either.

            2. McConnell didn’t stop Obama from nominating anybody. He simply didn’t hold hearings, which is the same as not consenting to the candidate. If Democrats held the Senate right now, they could and would be doing the same thing

              The idea that there is some principle of “no nominations during election years” is absurd.

              1. McConnell:
                “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

                1. The voters put Republicans in control of the Senate to oppose Obama in 2014.

                  In 2018, they expanded the GOP majority in the Senate…do you know why?

                  1. The idea that there is some principle of “no nominations during election years” is absurd.

                    McConnel ‘There is the principle of no nominations during election years.’

                    You: ‘Really, it’s all about if you have the votes, you automatically have the mandate to do what you want.’

                    I daresay, you’ve hit on it! No legitimacy of actions other than if anyone will stop you.

    3. I agree. These would be very productive changes.
      1 Representative per 100,000 people would result in 3,000 members. It would get mighty crowded in the Capitol and the House office buildings. But we could find a way.

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  2. Assuming that Ginsburg is replaced by a Trump nominee, giving the Republicans a 6-3 majority. How does the expansion of the Court by two seats give a 6-5 majority for DC statehood, etc.?

    1. Roberts. He will complete his turn to the dark side. So the right will have a 5-4 majority, necessitating 2 left justices to make it 6-5.

      1. The “turn to the dark side” that includes cases like Shelby County?

        1. From 7 years ago?

          1. Well, that’s the first “Oh, that bother? That was years ago” I’ve seen applied to a Supreme Court decision.

    2. Here is a helpful memory device for Republicans and conservatives in this context: Think of Lawrence Welk counting in the orchestra. . .

      . . . an’ a one, an’ a two, an’ a three, an’ a four . . .

    3. There’s nothing sacred about “2.” If the Republicans got a 6-3 edge, then the required number would be four new seats that could safely be filled by Party apparatchiks. If a handful of Republican moderates keep Trump from replacing Ginsburg with a conservative (which is feasible) then Biden could replace her and be content with the two new seats or even veto a bill expanding the Court (he has indicated that he does not favor expanding the Court, at least at this time. I could not see President Harris doing that).

      Or a handful of moderate Democrats might stand in the way. I’m not particularly optimistic, because there is already considerable momentum among Democrats to “stack-and-pack” the Supreme Court.

      The filibuster would have to go first, but people such as Biden and Barack Obama have already indicated they would favor eliminating it, so I think it may be toast. With that done, everything could pass on pure party-line votes, and everything ever after would be found to be Constitutional–until the Republicans next won the trifecta.

      1. I specified two because that is the number that Blackman was using.

      2. ” there is already considerable momentum among Democrats to ‘stack-and-pack’ the Supreme Court. ”

        I suggest you count the votes again. You can’t get considerable momentum from a handful of malcontents.

      3. Republicans play the game Democrats started, of using the Supreme Court as a crypto legislature, and slowly, slowly over 4 decades, turn it to their advantage.

        So why not shift the goalposts at this point? That’s what your betters do, I guess.

        Here a phrase to trot out: OH NO! The Republicans have learned to weaponize our tricks against us!

        Nobody learns from history. They just keep squatting on it for the politics of the moment.

        Just an observation. I wouldn’t even care but for fears the Democrats want cracks in the first amendment to allow censorship.

        1. When did the most recent Democratic-majority Supreme Court decide a case?

          1. Miranda?

        2. Krayt,

          Aren’t conservatives the ones crying that private businesses choices regarding their speech or speech in spaces they operate should be regulated by government? That’s a crack in the First Amendment. Go talk to your people.

          I’ll keep telling Democrats that hate speech laws are a bad idea for obvious reasons (who decides what is hate and what is justified anger? Just because it seems the definitions fit your sensibilities today, there is no reason to think that will be the case in the future).

    4. MarkW201Assuming that Ginsburg is replaced by a Trump nominee, giving the Republicans a 6-3 majority. How does the expansion of the Court by two seats give a 6-5 majority for DC statehood, etc.?

      Blackman is obviously one of those lawyers who struggle with arithmetic.

      As is Toobin, it would appear. On what conceivable analysis could the Rs be argued to have stolen two SCOTUS seats ?

      If, arguendo, the “Scalia seat” was stolen, on the grounds that the Senate has a duty to hop to and confirm the President’s choice, then the “Ginsburg seat” is not stolen if it is now filled by the GOP President. For the Senate has a duty to hop to and confirm the President’s choice.

      And if, arguendo, the “Ginsburg seat” is stolen by the GOP President filling it in an election year, and that counts as cheating, then the “Scalia seat” was not stolen, because it was not filled in an election year.

      And if, arguendo, it’s perfectly OK for the Senate majority to confirm or not confirm whoever the President puts up, if and whenever it pleases, then nothing at all has been stolen.

      So however you count, the number of stolen seats is zero or one. It can’t be two.

      A tiny prediction – even if Trump is re-elected and the GOP retains its Senate majority, the “Ginsburg seat” will still go down in lefty folklore as a stolen seat. Because the real rule is that SCOTUS must have a D majority – anything else is cheating.

      1. “As is Toobin, it would appear. On what conceivable analysis could the Rs be argued to have stolen two SCOTUS seats ?”

        I’ve heard that argument: The Supreme court wrongly appointed Bush President despite his losing the 2000 election. Due to this, he was the incumbent in 2004, and was reelected, and got a chance to make a couple of Supreme court nominations.

        If the Court hadn’t stolen the 2000 election, that would have been Gore.

        So, both of Bush’s justices are “stolen” seats, too.

      2. “If, arguendo, the ‘Scalia seat’ was stolen, on the grounds that the Senate has a duty to hop to and confirm the President’s choice”

        That’s a straw man, approximately nobody has argued that the Senate has to confirm just because the President has made an appointment.
        On the other hand, if they want to block the confirmation, the traditional way is to find 51 Senators willing to vote “no” and then having a vote, at which the nominee is not confirmed by a vote of the Senate. This is not what they did to Mr. Garland’s nomination. Mitch didn’t have the votes to deny confirmation, so he didn’t let anyone vote on the nomination.

        Two vacancies occurred during Trump’s term in office, and he made two appointments. If anyone wants to argue that Mitch’s shenanigans means Trump should make 3 appointments to go with the 2 vacancies that opened during his term, then they shouldn’t be complaining if the D’s arrange to have sleepy Joe make 4 appointments for the 0 vacancies that open during his term in office, because you’ve already conceded that shenanigans in pursuit of partisan gains are peachy-keen fine.

      3. “Because the real rule is that SCOTUS must have a D majority – anything else is cheating. ”

        When did the Supreme Court most recently have a Democratic majority? Even a bigoted, half-educated clinger should be able to find the answer to that one — and recognize that the answer contravenes this clinger’s argument.

      4. Because the real rule is that SCOTUS must have a D majority – anything else is cheating.

        That’s sort of a puzzling argument since SCOTUS hasn’t had a “D majority” in forever.

        1. er, my story begins in 2016 and analysed the Scalia and Ginsburg vacancies. The “rule” cited has been the D position since Scalia’s death. It was new rule made in 2016. (Prior to 2016, the rule was that the Senate majority should do what the hell it liked, and prior to Bork, the rule was that the Senate majority should defer to the President’s choice.)

          I think the genesis of the new D rule was all the lip smacking at the death of Scalia, and the long awaited prospect of a D majority. But that prospect was taken away from them by the R majority in the Senate declining to rubber stamp the fifth D. Ever since then, the Ds feel they have a right to a SCOTUS majority.

          Hence all the screaming about court packing to overturn the “two seat” steal. But as I explained, there simply isn’t any conceivable analysis whereby you can come up with a two seat steal. It’s either zero or one, depending on what you think is the proper “rule” (or custom) that should bind the Senate majority.

          1. And speaking of Bork, there is an irony in the fact that if the Ds had not borked Bork, they would have got their SCOTUS majority in 2013.

            1. The R’s have been promising the faithful that if they could just get a majority of the court, they could overturn Roe v. Wade for decades now.

              1. That’s one of the reasons they ended up with Trump: The base didn’t trust the party establishment anymore. The very fact that the establishment liked a candidate for the nomination became a kiss of death.

            2. You are assuming that Bork wouldn’t have retired during the G.W. Bush administration to ensure his successor had a broadly similar ideology/philosophy, as so many Justices do.

              1. But not all. See Scalia and Ginsburg.

                And Bork reputedly had a very high opinion of himself.

              2. RBG COULD have done at age 80 and have Obama replace her.

                She chose poorly.

                1. I agree with that. Given her health problems, I felt at the time (and more so now) she should retire during Obama’s term. Republican-appointed Justices were retiring strategically, she should have too.

        2. What if you count the “insufficiently pure Conservatives” appointed by Republicans as if they were appointed by Democrats?

  3. The post Civil War Republicans perfected using things like admitting news states (2 Dakotas!!) as a way to maximize our undemocratic institutions like the Senate and Electoral College in order to perpetuate their power…but the people they were holding down were vile racists that threw a temper tantrum that killed hundreds of thousands of Americans!?! Yes the Republicans that have given us W Bush and Trump are misguided people that for some reason seem intent on destroying America…but I don’t think they are as bad as the South in 1865. If Biden wins I think Democrats should focus on getting reparations to descendants of American slaves and getting paid parental leave for everyone and slightly reforming Obamacare and some other programs that end up helping all Americans and maybe move us closer together instead of farther apart.

    1. I think the American people are about to enjoy a history lesson that recounts the ways in which the Republicans and their predecessors used statehood, Supreme Court size, and other measures to attempt to create or preserve undeserved political power.

      1. If that happens, then the American people are also going to enjoy a history lesson of how progressivism destroys nations.

        Fortunately, probably only about 1/4 of the electorate is as delusional and destructive as you and the Democratic party will likely self-destruct over this; the only question is how much damage they will do to the nation before people come to their senses.

        1. I think the prof is probably a pretty nice person who uses his role of taunting people in this forum as a way to get the emotional poison out of his system.

          1. “Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.”

            1. Fear leads to loathing. Getting angry is a useful tool.

            2. And watching the prequels leads to frustration, that leads to fear…

              1. If this progression ends with JJ Abrams in charge of something I care about, I want off the ride NOW.

        2. ” the Democratic party will likely self-destruct over this”

          the Republican party is already self-destructing, building a bloc of evangelical religious right-wingers and socially-moderate pro-business capitalists was a desperation move that only delayed the inevitable. Selling your souls to der Trumpfenfuhrer only made it that much more obvious that the GOP has no soul behind its policies.

          1. The Democratic party is not a particularly cohesive group either. No longer are they the party of labor and the working man, they have become more of “everybody-who-is-not-Republican”. This is not to defend the R’s either, they went from being the party of business to the party of the wealthy. Not healthy for the country and why I’ve adopted “a pox on both their houses” attitude.

            1. Being not a member of a party does mean you miss out on primary season, but hey, at least I still get to enjoy all the refreshing honesty of political advertising for primary elections I don’t get a vote in.

            2. “…party of the wealthy.”
              The party of the wealthiest is the D’s.

        3. “If that happens, then the American people are also going to enjoy a history lesson of how progressivism destroys nations.”

          You already believe America has been wrecked.

          Organized prayer no longer conducted in legitimate schools.

          Women attending graduate schools (and voting, and owning property, and entitled to refuse an amorous husband!).

          Gays no longer treated like dirt, let alone beaten by police in alleys.

          White children forced to sit in classrooms with Black children, Asian children, Hispanic children . . . and who knows what’s next?

          Creationism banned from science classrooms.

          Men marrying men. Women marrying women. People living in sin everywhere.

          Black men no longer required to lower their gaze in the company of decent White women.

          The Bible largely removed from public schools.

          Instead of people minding their own business, these progressives are going after abusive police, drunken drivers, and wife-beaters!

          Environmental protections. Consumer protections. Voter protections.

          The principal problems for conservatives are (1) all of this damnable progress and (2) most Americans — especially educated, skilled, accomplished, modern Americans — welcome the progress.

          1. Some problems here. A lot of this “progress” you speak of is illegitimate, as much of it was accomplished through the usurping of power from the legislatures by the Supreme Court. Many of the issues you seem passionate about are no where to be found in the Constitution so are actually for the States to decide for themselves. 10th Amendment. The right of the people and the States to govern themselves. So, since you’re a really smart guy, I’m sure you already knew that. You just don’t care. You’re an authoritarian. You don’t care about liberty. You only care about acquiring power and using it against people you hate…which are really just caricatures living in your mind…while showing favor to those you don’t. You don’t believe in equality or love or freedom. You prove it with all of your nutjob posts.

            The people you hate are still Americans and have just as much right to live their lives the way they please as anyone else.

            Also, I don’t know what you’re so giddy about. This “progress” you speak of has not really affected me as much as you make it seem like it does. I don’t really care too much because unlike you, I believe in freedom. However, at the same time, unlike you, I believe the integrity of the Constitution should be preserved, which it has not been. Finally, it’s your soul, not mine. Do with it as you please. But remember me when that terrible day comes. Just wait.

    2. And two years later, the Republicans could admit a dozen new states: Northern Maine, Northern New Hampshire, Eastern Washington, Eastern Oregon, etc. Furthermore, they could both expand SCOTUS even further and/or impeach anyone they want, AND where is “precedent” mandated?

      So they un-state DC and as to PR, they’re not paying income tax right now…

      The problem is that the Dems have been in academia too long — they don’t understand realpolitik.

      1. The Republican Party dominated national politics from 1865-1932 because they kept their boot of the throats of the vile racist southerners by doing things like admitting 2 Dakotas into the USA.

      2. Except for the minor detail that breaking up existing states requires the consent of the state legislature, and I very much doubt that any of the legislatures of the states you’re proposing to carve up would consent.

        1. Not if SCOTUS ignores that bit.

          1. Which it wouldn’t.

            1. A rubber stamp Court might. There’s the West Virginia precedent.

              1. We were in the middle of a civil war and Virginia had already seceded at the time of West Virginia’s admission. I don’t remember if there was litigation about it or not, but I can’t imagine the Virginia legislature simultaneously claiming the rights of a state while also claiming to have left the union.

                1. You can’t imagine. Lol. We can all only envy an imagination as vivid as Brett’s.

                2. That may all be true, but it remains that there is precedent for breaking up a state without its consent. And the whole point of Court packing is to get a rubber stamp Court, not one exercising independent judgement.

                  1. Brett, what’s the textual argument that the Constitution permits a state to be broken up without its consent? Because even if the court is rubber stamp, it still needs to find a semi-plausible textual constitutional argument. I’m usually pretty good at figuring out the other side’s arguments, even if I don’t agree with them, but not this time.

                    And West Virginia is completely distinguishable because the state it was carved out of wasn’t in the union at the time.

                    1. “Because even if the court is rubber stamp, it still needs to find a semi-plausible textual constitutional argument”

                      Why? Why do they have to do that? They’re literally a rubber stamp.

                      Here’s a good example with Evo Morales in Bolivia.

                      As part of Bolivia’s Constitution, the President could only serve 2 terms. Bolivia’s president tried to get a referendum passed changing it (in 2016). It failed. But the Morales-packed courts said Morales could run again, despite the constitution, citing…. “The American Convention on Human Rights”

                      Despite the plain text, there’s always a justification of some sort, some way to twist the law.

                      So, we say get President Harris. She’s already shown she’s ready and willing to prosecute reporters, and abuse the state apparatus to do that. What will she do with the entire nation’s security apparatus? And any reporter who tries to report on it…thrown in jail. Then she’ll have a compliant SCOTUS to say it’s all OK. Then she passes a handgun ban by executive order, and has the court-packed SCOTUS back it up. After that…the sky’s the limit.

                    2. “Brett, what’s the textual argument that the Constitution permits a state to be broken up without its consent?”

                      The same for any other clause of the Constitution the Court isn’t in a mood to uphold: “That’s nonjudiciable.”

                      “And West Virginia is completely distinguishable because the state it was carved out of wasn’t in the union at the time.”

                      The Union kept equivocating between whether the Southern states had actually left, or merely purported to but were still part of the US, as convenient. Either way, though, they were still a state.

                  2. It’s not a precedent. Virginia was not a state within the union, at least by its own account. But it won’t really matter how many times folks point that out, will it?

                    1. I don’t know why pointing out something I’m well aware of, and argue isn’t relevant, is supposed to change my mind. You think I brought up the Virginia precedent without being aware of the particulars?

                      A lot of current constitutional jurisprudence wouldn’t pass the laugh test if it hadn’t been around so long that people got tired of laughing. The Court has no difficulty at all dispensing with Constitutional clauses it doesn’t like.

                      “That’s non-judiciable.” “That’s a political question.” “If a bill is certified by the relevant officers of Congress has having been properly enacted, we won’t inquire further.” “Nobody has standing.”

                      If Congress decides to break up a state, and the Supreme court wants to let them get away with it, you might anticipate some bitter dissents, but the majority will cook up some kind of excuse, and not care that it stinks on ice.

                    2. And they’ve also got “it’s a tax” to fall back on 🙂

                3. The General Assembly of the “Restored Government of Virginia” gave its consent to the creation of West Virginia. Coincidentally, most of the members of that General Assembly were from the portion of Virginia that became the new state. See https://en.wikipedia.org/wiki/Restored_Government_of_Virginia

        2. “Except for the minor detail that breaking up existing states requires the consent of the state legislature”

          That point seems entirely irrelevant with respect to Puerto Rico and the Pacific territories and largely irrelevant to the prospective Douglas Commonwealth.

      3. “The problem is that the Dems have been in academia too long — they don’t understand realpolitik.”

        Are we supposed to pretend that you do?

        ” PR, they’re not paying income tax right now”

        People with no income pay their taxes at a rate of 0%. 0% of 0 is 0.

        1. You think that every person in Puerto Rico is so dirt poor as to have no income whatsoever?

          1. The zero percent tax bracket doesn’t just cover people with literally no income whatsoever, genius.

    3. The post Civil War Republicans perfected using things like admitting news states (2 Dakotas!!) as a way to maximize our undemocratic institutions like the Senate and Electoral College in order to perpetuate their power

      That’s nothing compared to the half million people killed by Lincoln’s diplomatic and military incompetence.

      Everybody agrees that ending slavery in the US was a good thing. But it’s a historical fact that Lincoln and the Republicans went about it in one of the worst and most destructive ways possible.

      1. That’s nothing compared to the half million people killed by Lincoln’s diplomatic and military incompetence.

        Everybody agrees that ending slavery in the US was a good thing.

        I take objections to slavery from people who blame Lincoln for the Civil War with a sizable grain of salt.

        1. See if I care what ignorant authoritarians like you think

          1. You, sir, are a gentleman in the tradition of the late, great Nathan Bedford Forrest.

            Save your Dixie Cups. The South shall rise again!

      2. “That’s nothing compared to the half million people killed by Lincoln’s diplomatic and military incompetence.”

        They should have just laughed off the shelling of Fort Sumter.
        and why didn’t they ever call in any airstrikes? Total incompetence.

        1. If you actually read a bit of history, you could find out what Lincoln should have done.

        2. They would not have invested Fort Sumter in the first place, (It was empty when SC seceded.) if they weren’t looking to create an excuse for the war.

  4. “To date, most prudent Democrats have refused to discuss these four moves aloud.”

    There must be an awful lot of imprudent Democrats.

    1. The prudent Democrat caucus was held in a closet, and social distancing was strictly enforced.

    2. They were content to let their media allies float these ideas up until the primary. Since then, prominent Democrats (including Biden) have either voiced approval for some of these ideas or are open to “debating” them.

    3. OK, TIP, before last week, which mainstream Democrats advocated court packing?

      Nuking the filibuster and enlarging lower courts wouldn’t surprise me. There’s nothing inherently partisan about either. (I support the latter but not the former.) And while DC and/or Puerto Rico statehood have obvious partisan consequences, there are principled non-partisan reasons to support both. (I’m undecided.)

  5. I love how a quote from 4 years ago of McConnell BSing his reasoning about a Senate Procedure is now Sacred inviolable Dogma far more cherished and valued than the 1st and 2nd Amendment. And all the Dem pols and mainstream media and twitter blue checkmarks who were vehemently against waiting in 2016 are now prostrating themselves and speaking in tongues and writhing on the floor before the Holy Altar of Waiting on Elections before Nominations.

    And that transgressing it is a horrible atrocity and fitting excuse to go nuclear on the balance of power.

    Anyone who believes this kabuki is insane. A third grader could see the Dems have lost the plot and are living in an alternate universe. There is no need to negotiate with these lunatics.

    1. Democrats aren’t prostating themselves before any such altar. They have pointed out that the altar was a sham all along.

      But by openly acknowledging this, McConnell is rubbing their noses in the new power politics. All that’s left is for Democrats to finally join him and admit that principle is meaningless and only political advantage matters.

      1. Join him?

        Did you miss the last 12 years?

        Remember, the whole Garland thing was a reaction to “the nuclear option” and to “elections have consequences” and “I have a pen and a phone”

      2. “Prostating?” That is pretty disgusting. But that gland causes people born with penises a lot of trouble.

        1. It causes problems for people born without penises, as well.

      3. “Elections hace consequences” was when Mitch gave the game away. He shouldn’t have said that.

        1. Obama said that.

      4. “All that’s left is for Democrats to finally join him and admit that principle is meaningless and only political advantage matters.”

        Actually, they could be principled, but never have and never will.

    2. ” all the Dem pols and mainstream media and twitter blue checkmarks who were vehemently against waiting in 2016 are now prostrating themselves and speaking in tongues and writhing on the floor before the Holy Altar of Waiting on Elections before Nominations. ”

      Fine, put Garland on the Court in 2016 and let Trump pick in 2020. That’s another fair solution, except that Doc and Marty havent’ brought the DeLorean back yet and Bill and Ted aren’t as good at time-traveling now that Rufus is CGI and archival footage.

      1. I suggested to Trump via twitter that he nominate Garland but he didn’t reply.

    3. “I love how a quote from 4 years ago of McConnell BSing his reasoning about a Senate Procedure is now Sacred inviolable Dogma”

      The problem with a memory that doesn’t stretch back as long as 4 years is that you can’t put forth any kind of coherent argument for your policy choices.

  6. Your math is wrong and so is Toobins. If and when Ginsburg is replaced by a conservative, it will take at least 4 seats, not 2 or 3 in order to overcome the 6-3 conservative majority.

    This is basic math, people.

    1. Roberts isn’t a conservative though.

      1. Still mad about NFIB v. Sebellius?

        1. Among others.

          When he wouldn’t read Rand’s question at the impeachment because of the “whistleblower”‘s name, the cat was out of the bag.

          He rules with the Federal Class, regardless of what the Constitution says or the law says.

          1. He rules with whatever will give him a flattering write-up in the WaPo. He lives for backslaps and kudos from the bien pensants at the club.

            1. Blame the guy who picked him, I guess.

              1. Oh we do. What a couple of turds in the punch bowl the Bush’s turned out to be.

                1. Mix with Trump’s diarrhea, and you guys haven’t had much luck picking Presidents of late.

                  1. Oh fuck off, shill. You’re not even trying.

        2. Didn’t be pretty much just urinate on the 2A recently?

      2. “Roberts doesn’t stick to the hard right dogma 100% of the time” does not equate to “Roberts isn’t a conservative.”

        1. Peter Schiff commanded the whistleblowers name be censored, Robert’s obeyed.

          Why?

          1. Pencil neck*

          2. Pencil neck* not Peter

      3. Sam, there are conservatives, and then there are lunatic fringe, off the chart, nutcase cuckoo right wing extremist conservatives. That Roberts is not of the latter does not mean he’s not of the former. Remember, he voted to gut the Voting Rights Act and upheld partisan gerrymandering; he’s there for conservatives on cases you actually need to win to stay in power.

        1. “there are conservatives, and then there are lunatic fringe, off the chart, nutcase cuckoo right wing extremist conservatives.”

          Yes, they’re also called strawmen and they do a great job of keeping orthodox lefty’s safely on their intellectual plantations.

        2. He created the concept of being taxed for not engaging in commerce.

          That’s retarded. It turns words on their heads, just like other liberals do with things like “woman”, “marriage”, “husband”, “wife”.

  7. “If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats.”

    Those poor shrinking violets. Who was it that tossed out 100s of years of consenting to whoever the then current POTUS nominated for the USSC? Pursuing filibusters for ideological reasons?

    1. ” Who was it that tossed out 100s of years of consenting to whoever the then current POTUS nominated for the USSC”

      That was Mitch, just 4 years ago.

      1. *cough* Bork *cough*

        1. According to Bork, he was offered a Supreme Court seat to carry out Nixon’s order in the Saturday Night Massacre fiasco, and he carried out the order. A man of such low character, who trades favors (that ultimately played a part in Nixon’s impeachment) for personal advancement, is not fit for the Court.

          (*Bork claims he intended to resign after carrying out the order but other people persuaded him to stay….so he’s kind of a hero? The admission he was offered a SC seat is an admission against interest. That he stayed “only because” others prevailed upon him to do so is a story to try to save his reputation.)

          There were legitimate reasons to oppose Bork.

  8. That’s a big part of the issue. Republican’s no longer believe the Democrats capable of acting in good faith, and if there is no reason to trust the other party, then there is no reason to obey norms.

    1. There actually is no norm that a majority is not supposed to confirm a Supreme Court justice.

      1. Apparently you slept through 2016.

      2. They didn’t vote Garland’s nomination down. Mitch didn’t have the votes for that. So he made up a new rule that Presidents aren’t allowed to name Supreme Court justices during election years. A rule that, apparently, he’s happy to break.

        The bottom line is that there’s no reason to rush someone through confirmation unless you think you’re going to lose the Presidency or the Senate or both.

        1. He didn’t create a rule. He just chose an alternative method for the Senate delivering their (lack of) consent and advice to the President on his nomination.

          There is no new Senate rule in any Senate rulebook.

          1. “. He just chose an alternative method for the Senate delivering their (lack of) consent and advice to the President on his nomination.”

            No, he didn’t consent to the nomination, and the Senate was never asked.

            See how that’s not the same? If Mitch had had 51 votes to deny the confirmation, that would have been the Senate denying the confirmation. But Mitch didn’t have the votes, so he acted unilaterally. The reason he gave wasn’t supported by his opponents but was reluctantly accepted at the time. Now, here it is again, and Mitch has changed his mind.

            1. I’ll stick with
              The bottom line is that there’s no reason to rush someone through confirmation unless you think you’re going to lose the Presidency or the Senate or both.

            2. Mitch is the Majority Leader of the Senate as such can speak on the Senate’s behalf.

              See:
              “The majority leader has also come to speak for the Senate as an institution. ”

              https://www.senate.gov/artandhistory/history/common/briefing/Majority_Minority_Leaders.htm

              The Constitution does not require a vote. It’s silent on how the consent is given.

              1. That’s an incredibly stupid argument. Even for you, Sam.

                1. Do you think my cite, senate.gov, is not authoritative enough?

                  1. There wasn’t a majority leader until the 1920s according to your cite. Your cite also points out the obvious: the position is not in the Constitution. Therefore, the Senate Majority leader does not “speak for” the Senate in a Constitutional sense.

                    And your cite: The leaders serve as spokespersons for their party’s positions on issues

                    You clearly don’t understand what a spokesperson is. Trump has a spokesperson, but the spokesperson cannot, therefore, make decisions for Trump. Capeesh?

                    1. ““The majority leader has also come to speak for the Senate as an institution. ””

                      In what context does the majority leader speak for the Senate as an institution?

                      You seem to believe it’s none. Which would then make that a very weird statement to make by the Senate historian (or whomever drafted that article.)

                    2. Sam,

                      Or whomever drafted the article

                      That doesn’t give you pause to rely on it?

                      In what context does the majority leader speak for the Senate as an institution?

                      Do you not understand what a spokesperson does? Do you assume that the chairman of a committee can just make decisions for a committee? The foreman of the jury can just make their own decision regarding the verdict? How do you not understand the distinction between speaking for a group and acting for a group. Those are two different things. It really isn’t complicated.

                      Again, the context of the statement is in terms of spokespeople, which makes sense. But I am not aware of anything in the Constitution or in the Senate’s duly passed rules that allows the Senate Majority leader to make decisions for the Senate as a whole on substantive matters, whether passing legislation, impeaching someone, or giving advice and consent on a nomination.

                      Art. I, Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business.

                      How can the Majority leader alone do the business of the Senate if a majority of Senators must be present for a quorum? The Senate speaks by majority vote or, in certain cases, by a two-thirds majority vote. If it doesn’t vote, it hasn’t acted, regardless of what a Majority Leader says.

    2. ” Republican’s no longer believe the Democrats capable of acting in good faith”

      That’s how projection works. They know that they won’t, so they can’t imagine their opponents will.

  9. If we had an honest press and legitimate elections, questions about these exact issues would be put to Biden directly, forcefully enough that evasive answers would not be acceptable, either during interviews or during a real debate. Imagine Trump’s party planning this stuff and how they would be grilled.

    But they wont.

    And this is how a republic dies

    1. With thunderous tweeting.

      1. No, with bullets flying. The Dems aren’t bright enough to learn from history.

        Maybe the rich, who have the most to lose, *are*.

        1. ” The Dems aren’t bright enough to learn from history.”

          And you aren’t bright enough to learn from ANYTHING.

        2. All-talk pussies, and the other Republicans and conservatives who appease them, are all among my favorite culture war casualties. Keep talking, clingers . . . So long as you continue to toe those lines established by better Americans, you get to sputter and mutter as much as you like.

          Your continued obsequious compliance is greatly appreciated.

  10. It seems a foregone conclusion that Justice Barrett or someone like her will be on the Court in October or November. But then:

    1. Yes, the filibuster will be gone.
    2. The expansion of lower court judges will be substantial.
    3. Because of 1, after the 6 to 3 ruling against ACA, the Dems will pass a new health care law that is substantially more radical than ACA.
    4. Massive protection for unions will pass.
    5. New Voting Rights legislation will end Republican gerrymandering and end voter suppression.
    6. $15 minimum wage.
    7. Massive new environmental protection and anti-global warming laws will be in effect.

    and

    for conservatives, the repeal of Roe will be meaningless. Anti-abortion rights states already have just about eliminated abortion rights through restrictive legislation. So in the states where abortions are taking place, they will still take place. And even in the states where abortion is prohibited they will take place with self administered medications. And pro-abortion rights groups will support travel by women to states that allow abortions. And the anti-Republican backlash will be huge and ongoing.

    Gee folks, I hope getting Republicans like Lindsey to go back on their word and vote in a person who will not allow Sharia Law but will allow Christian Law is going to be worth it. Probably not, almost certainly not. Remember, whom the gods destroy they first make mad.

    1. “Because of 1, after the 6 to 3 ruling against ACA, the Dems will pass a new health care law that is substantially more radical than ACA.”

      Single-payer is what the liberals wanted in the first place. It isn’t radical, unless you were a health-insurance company that thought you’d bought enough lobbying to keep the government from muscling in on your turf.
      Kaiser Permanente for everyone, and rich people buying out-of-system to their wishes, won’t seem that radical, until they actually start building little doc-in-a-box facilities in the currently-underserved rural areas. Which, coincidentally, is where most Republicans live.

      1. Single-payer is what the liberals wanted in the first place. It isn’t radical

        Single payer isn’t radical; lots of countries have it. It rations healthcare, imposes price controls, etc.

        The kind of single payer Democrats are proposing is radical; it exists nowhere else and can’t function.

        And in no way is “single payer healthcare” a “liberal” policy; it’s an authoritarian policy.

        1. “Single payer isn’t radical; lots of countries have it. It rations healthcare”

          Every system rations healthcare. Right now, it’s rationed so that poor people and really sick people can’t get it. Rearranging the system so that people who really need it get it first means that you can’t get your boner pills right away. EEK! how radical.

          “And in no way is “single payer healthcare” a “liberal” policy; it’s an authoritarian policy.”
          Must be why so many people refuse MediCare coverage.

          1. Have you ever heard of Medicaid?

            1. yup. have the Republicans managed to kill it yet?

              1. If you’ve heard of Medicaid, why did you say poor people can’t get healthcare?

          2. Either you’re rationing on the basis of who can pay for the product, or you’re taking the money from the people who can pay, and giving the health care to somebody else, but still rationing.

            Why does rationing become more moral if you add robbery?

            1. Yes, and it’s robbery that poor people can call the police, firefighters, access courts, get a basic education, etc., etc., via tax dollars. Society has no responsibility to the poor. You are so right! My heart weeps for all of us with disposable income. /sarc

              1. Police, firefighters, courts, and schools are something local communities choose to pay for with local property taxes, nothing more.

                There is no constitutional right to an education or healthcare. If you want those things, in the US, you should earn them for yourself and your kids.

                1. NOYB2,

                  You have no idea what you are talking about.

                  First, nothing more is absolutely, completely false. Localities pay, on average, about two-thirds of their own expenses for local police. The feds are the second largest funder and pay for 20%.

                  Second, even if your premise was not complete bunk, which it is, you would impliedly be arguing that theft from local property owners to pay for services for poor people/non-property owners is just fine. By what principle does your “theft” analysis change depending on the governmental level at which it occurs? It isn’t theft. Society decides some things should be provided to everyone and that societal decision is not “theft” from people who pay taxes.

                  Third, the education issue was settled long ago and, because voters have overwhelmingly approved providing public education, there is a constitutional right to equal education (see, e.g., Brown v. Bd.).

                  Which leaves your mere assertion that people should earn enough to pay for healthcare or die in the streets of treatable injuries/diseases if they haven’t saved enough to pay for the necessary care. Go sell that to the voters.

                  1. IANAL, but I believe the 14th Amendment equal protection clause was the basis for Brown v Board. There is no national right to education accorded by the constitution. If any state ended its socialized K-12 education program, no one in that state would have a positive right to education.

                    Voters don’t make things constitutional by the tyranny of democracy. That would require yet another a SCOTUS reinterpretation of the plain words of the constitution to mean something else, a la the commerce clause or the general welfare clause.

                    The Republicans are focused on winning / buying votes rather than acting republican and restoring the republic. That’s why our country is doomed. We have to repeal the 16th amendment so the centralized government is unable to redistribute money back to the state and local governments.

          3. Every system rations healthcare.

            “Rationing” means “government restrictions on availability”. Free market systems, by definition, don’t “ration healthcare”.

            Right now, it’s rationed so that poor people and really sick people can’t get it.

            Poor people and sick people are covered by government programs (Medicare, Medicaid); their deficiencies in coverage are the result of a bad government-run single payer system. And instead of fixing that system, Democrats want to impose it on the entire nation by force. And the reason they want that is because it allows them to shovel trillions of dollars into the pockets of their big donors. It’s utterly disgusting.

            A European-style single payer system would be a big improvement over the rotten US system, but Democrats have never proposed such a system and are vehemently opposed to it because it would cut into the large profits of their special interest supporters.

            1. “Rationing” means “government restrictions on availability”. Free market systems, by definition, don’t “ration healthcare”.

              Serious people don’t define their way to victory.

              Medicaid is manifestly insufficient and Medicare covers only the elderly. And is also not great and the well-off often supplement it.

              You rage at Obamacare so bad you get bad at facts, and yet you’d be fine with single payer. That’s a puzzler.

    2. And hyperinflation as the economy implodes.
      Just like in the Wiemar Republic.

      How’d that end?

      1. With the idiots turning to Nazism. You may be overestimating the number of idiots in America.

        1. The idiots are already turning to Nazism: people like Sanders and AOC are largely demanding the same things as the NSDAP 25 Point Program.

    3. Most of that is stupid.

      But I think your analysis that actual functional bans on abortion would definitely result in a backlash against Republicans, perhaps flipping those state’s party affiliation.

    4. That may happen, and it would basically be the end of the US as we know it, economically, socially, or politically. The US would become a third rate nation with massive poverty and an exodus of corporations and skilled labor.

      1. The US would remain an agricultural powerhouse and net energy exporter, only with things dire enough that the government would probably stop pushing the regulatory brake pedal through the floor, freeing up the economy to resume expanding at historically normal rates after we’d absorbed the hit, instead of “new normal” rates. The thing about near death experiences is that they teach you what’s important.

        No question it would be ugly for a while. But we’d bounce back in 2-3 decades.

        1. It’s funny how much conservatives are against conservation of natural resources.

          1. I’m a nuclear power advocate; That natural resource will last well beyond when the Sun moves off the main sequence. I hate coal power, and oil is more valuable as a chemical feedstock.

            But why would that influence my predictions of the consequences of a fiscal crash? Such an event makes a move away from fossil fuels less likely regardless of your views of their merits.

            The US is fortunate to have a wide abundance of natural resources. You think starving people would leave them untouched?

        2. The USSR was an agricultural and energy powerhouse as well. Once the left is in charge, those resources are increasingly put under the control of the state; they largely are already in the US. Farming, ranching, mining, and drilling requires paying off the government, and that will just get worse and worse.

          1. Right, I was discussing the consequences of a fiscal crash, and assume that, in the event we have a real one, the exigencies of sheer survival will result in a lot of regulatory insanity being given up on. Maybe at gun point.

    5. Biden’s labor program (or whoever handed it to him) is one of the most disgusting things I’ve read. He wants the federal government to basically get involved in every interaction between employer and employee, drastically decrease the possibility of settling disputes in internal arbitration and take everything to court, and so on.

      Oh, and that California law that basically gutted freelancing? He wants to force that nationally. Also ban right-to-work laws, noncompete agreements, and so on.

      Basically turn the country’s labor laws into France’s, minus the 35-hour workweek and whatnot.

      1. “drastically decrease the possibility of settling disputes in internal arbitration and take everything to court”

        Perhaps Biden (or this mystery person) has experience with arbitration.
        And why are we fighting so hard to save the courthouses if you don’t want to use them for court?

  11. Maybe this is the reversal of fortunes for which Roberts so carefully avoided angering Democrats. Democrats are temperate people who can be talked back from the brink. A Biden administration is not going to be a squad.

    1. A Biden administration will only last as long as it takes to type up the 25th amendment certification that he is a senile old fool who cannot execute the powers of the office.
      The Harris administration will go full fascist.

      1. If being a senile old fool were enough to get a President removed, Reagan would have “retired” some time in his second term and President Pence would be running a totally different re-election campaign right now.

        1. Reagan was certainly old by the end of his second term, and perhaps even beginning to develop Alzheimer’s, (Though certainly not nearly as far gone as Biden already is.) but I think characterizing him as a fool is maybe pushingit.

    2. Democrats are temperate people

      Are you unfamiliar with the last 50 years of Democrat politics?

      1. Getting Democrats unified on a single purpose is fairly difficult, it’s like herding cats. W did a good job of it, and so has Trump.

  12. 1. Filibuster. Perhaps.
    Democrats played this game before, and got burnt. Would they really burn any hope they had in the minority (since they’ll likely be in it again)

    2. DC and PR Statehood.
    PR should be a state if PR votes to become a state. They haven’t done that with an honest referendum. Having PR become a state against PR’s democratic will is…undemocratic. DC shouldn’t be a state. It was never intended to be a state. It has a massive amount of soft power over Congress, and is the richest (per capita basis) State/district in the union. If the residents there want more voting power, retrocession of the district into Maryland is the proper solution.

    3 and 4.
    Court packing is for partisan purposes is antidemocratic, and something Venezuela would (and has) done, as well as many other dictatorships.

    1. 1. Elections have consequences. Let’s stop pretending otherwise.
      2. New states definitely have political implications. And always have.
      3 and 4. Expanding the number of lower court judges and Supreme Court justices is perfectly democratic. You can’t do it without a democratic majority.

      1. 1. Never said they didn’t. But the filibuster serves a role in preventing bare 50% + 1 from making massive sweeping changes that there isn’t really a mandate for.

        2. Yes. But forcing a territory to become a state against the territory’s will?

        3. It’s anti constitutional democracy. Pure democracy (No constitution, no protected rights, no rules) is a dangerous game, for a variety of reasons.

        1. “the filibuster serves a role in preventing bare 50% + 1 from making massive sweeping changes that there isn’t really a mandate for.”

          It also serves a role in preventing bare 50%+1 majorities from making massive sweeping changes for which there is a mandate.

          1. 50%+1 is not evidence of a mandate.

            1. Tell that to Trump, who didn’t even get 50% in 2016.

              1. And he didn’t have a mandate for sweeping change.

                1. “he didn’t have a mandate for sweeping change.”

                  Sure, any objective observer can see that. But HE saw a historic victory, cheered on the by largest inauguration turnout ever.

                  1. To be fair to Trump, it was easy for Obama to draw a big crowd: The inauguration was within walking distance of a huge number of his supporters, and rioters weren’t blocking the entrances. He did pretty well given the handicaps he was under.

            2. “50%+1 is not evidence of a mandate.”

              Except when it is.

          2. 50%+1 majorities isn’t a mandate

            1. Every day is a mandate. Decisions, including decisions to not act, have consequences.

              You are indulging in the fantasy that dysfunction may properly substitute for function.

              But that is a formula for national decline. 50% + 1 will have to do when no stronger consensus is possible. We ought to aim for better than that, but being frozen in time is not an option.

              We have grown so comfortable with failure that the two parties just sit there, refusing to negotiate, as we speak.

              Change is coming. And it is for the better.

              1. Wow.

                Let’s hope you and yours never get control of anything.

                There’s a reason a constitutional republic was built instead of a direct democracy. And you’ve put your finger precisely on that reason.

              2. Inaction by government is a good thing almost all the time; government should only act when it is overwhelmingly clear that it needs to act. That’s why the threshold for federal laws should be 75%, with sunset provisions for all laws.

                1. You should move to the paradise that is Somalia. Very little government intrusion into your life.

              3. “but being frozen in time is not an option.”

                How… progressive.

              4. “We have grown so comfortable with failure that the two parties just sit there, refusing to negotiate”

                One of the parties has been actively seeking failure, out of the notion that government is inherently bad, and/or inefficient, for decades.

                1. “out of the notion that government is inherently bad, and/or inefficient, for decades.”

                  Where’s the lie?

    2. PR should be a state if PR votes to become a state.

      It should require consent from the existing states as well. I don’t see why the US would want to saddle itself with PR. The best thing to do with PR is to impose independence on it.

    3. 1. Filibuster is a goner.
      2. DC statehood will involve carving out a tiny area (the mall, the Capitol) and the White House to remain as DC and the rest of the current district will become the new state. PR will be forced to be a state; they may use the results of the last low turnout plebiscite or they may ram through a new one with lots of freebies to encourage a “yes” vote.
      3. and 4. Court packing is needed for other “reforms” to survive.
      And some extras:
      5. Law mandating state level election law changes regarding redistricting, voter registration, mandating vote by mail and 3rd party ballot harvesting.
      6. Encouraging states to adopt the electoral college compact.
      7. Allowing non-citizens to vote in federal elections.
      If they get all that done by 2022 they could assure that the Fed govt will forever be controlled by Dems. Then the Feds could mandate state level political structural changes to advantage Dems in state level elections.

  13. So, we are admitting that the Democrat party are the fascists that we have always known they are?

    The idea of a Civil War is ludicrous — until the shooting starts

    1. We have seen what they have done with the peaceful demonstrations in support of Black Lives Matters over the summer so unCivil War is more likely than one might suppose. Especially if the democrats push more riots when they lose.

      1. remember when just showing up at the state capitol carrying your rifles seemed like enough of a threat to get what you wanted? “Waaaah! we don’t want to wear masks just to protect people from getting a deadly disease currently raging around the world!”

        Those were the good old days. Now you need to grab your rifle and get out there to protect your Confederate statues and tell the people who keep saying “maybe the police should kill fewer unarmed black people” to shut up since after all, the police only kill unarmed black people when they don’t have any choice, because they’re fearing for their lives when they pull the trigger.

        1. Holy crap… you really are untethered from reality….

          1. I am totally untethered from the “reality” your imagination has built for you. Come on out, it’s not that bad, unless you have pre-existing medical conditions or object to pandemic diseases that politicians insist on spreading.

            1. Are you OK James? You need us to call you a doctor — perhaps your mother?

              1. You can call me at yo mamma’s house.

        2. Unarmed doesn’t mean non-lethal.

          1. It’s almost as though you don’t much care about state-sanctioned killing of blacks for whatever reason. Like their lives don’t much matter to you.

            1. STATE!!!

              SANCTIONED!!!!

              BLAGAARNGLE!!!!

          2. “I was afraid for my life! The guy was positively COVERED in melanin! I was afraid he’d get some on me!

        3. This is what the progs actually believe about the proles.

    2. All-talk, bigoted clingers are among my favorite culture war casualties.

      Their impotent bluster is fine entertainment.

      1. I do cling to the US I immigrated into. If it changes into what you want it to change to, I’ll move my investments overseas and emigrate again. Talk and action align.

        1. Bu-bye!

        2. That’s a real American talking!

          Feel free to leave whenever you wish, you stale-thinking Republican loser. America will be better off without you.

          1. Of course I feel free to leave whenever I wish.

            However, I don’t see it coming to that. Ignorant, bitter clingers like you have always existed in the US, and America has always rejected your foolish ideas.

            You’ll discover that the “brown and black people” racists like you despise so much will kick your ass.

            1. In standard English, please . . .

      2. Like Kyle Rittenhouse?

        Boom!

        1. You’re cheering that you’re winning in the non-voter murderer demographic?

    3. ” we are admitting that the Democrat party are the fascists that we have always known they are?”

      We aren’t admitting yet that there is a “Democrat party”.

  14. So the Republicans stole Scalia’s seat by refusing to perform their sacred duty of voting on a nominee, and will steal Ginsburg’s seat by unconscionably voting on a nominee. One might almost suspect that there’s no neutral principal involved other than “it’s our seat, we want it.”

    1. Yes. That’s my favorite part. I wonder if he realized how absurd that came off.

    2. Confirming justices is a political process, influenced by the electorate’s choices in executive and make up of the senate. Is there a law that compels the senate to reflect their advice & consent only via a vote? During or not during an election year?

    3. The principle is simple: the president nominates and the Senate accepts or rejects.

      With Garland, the president nominated and the Senate rejected (and happened to choose to spare the country the political theater).

      With RBG’s replacement, it looks like the president will nominate soon and the Senate may confirm.

      No “rules” are being violated; Democrats are acting like spoiled six year olds crying “not fair” and coming up with excuses.

  15. “OH NO DIARRHEA ALL OVER THE CARPET WHY DID I FART NAKED????????”

    –Josh Blackman looking at his thirty-eleven posts tomorrow morning when he’s sober

    1. when he’s sober

      Ah, projection. Drink lots of water.

    2. Yeah, there really is no walking back a swipe at Ginsburg shortly after her death. By doing so, Blackman confirmed beyond redemption that he is a partisan hack. (Something I thought obvious already, but, much to my surprise, some just realized it today.)

  16. Democrats have short memories. Not long ago they were concerned about getting wiped out the same way Socialist Corbyn did in the UK elections. That was Dec 2019.

    Schumer’s threats to eliminate the filibuster and pack the courts will backfire. Its now safe to vote Democrat so long as the socialist Marxist wing is kept in check. Without the check of some sort, Democrats will suffer the same drubbing as Corbyn.

    1. My wife, generally a moderate Biden supporter, heard about the plan to eliminate the filibuster and pack the courts, and asked “Are they fucking stupid?”

      Not only will it hand the Dems a resounding defeat, it will hand the Republicans the keys to the kingdom to roll back decades and decades of laws.

      1. Where do you figure conservatives will find all of these superstitious, intolerant, uneducated, backwater Whites to power a Republican electoral wave?

        1. lol.

          That was exactly Harry Reid’s thinking when he eliminated the judicial filibuster. Corbyn did not think he was going to lose either.

          History is littered with people who lost because of myopic thinking like that.

          1. Take your best shot. Maybe it will go better for you and the other clingers this time than it has for 70 years or so.

            And open wider.

        2. “spreading the word how dangerous the socialist marxist wing of the Dem party”

          Their ballots will mysteriously appear when the initial counts show Biden winning.

          1. So they’ll steal the Dem’s SOP?

            Savvy.

            1. It wasn’t Biden promising the most corrupt election of all time. That was your guy.

  17. Well, for the democrats to make D C a state they would have to get a constitutional provisions to allow it.
    Now to expand the supreme court they would have to win the senate. But if they do they had better remember that sooner or later a different party (unless they turn the US into a single party nation) will have the majority. But form what has happened over the last four years and the political pressure that has come from the Democrat News Agency to force people either agree with them or be forced out I can see if the democrats win that could happen.

    1. The major premise of this entire fantasy is the the democrats win the senate, keep the house, and win the presidency.
      A thousand years ago when schools taught logic, I learned that if your major premise is wrong, your conclusion will be wrong.

      1. “A thousand years ago when schools taught logic, I learned that if your major premise is wrong, your conclusion will be wrong.”

        A thousand years ago was the Dark Ages, with not many schools teaching much of anything.
        A couple of decades ago, when I was in school, they taught that if someone makes obvious lies in their claims (such as, say, being in school a thousands years ago) you could safely ignore anything else they had to say.

      2. A thousand years ago when schools taught logic, I learned that if your major premise is wrong, your conclusion will be wrong.

        You didn’t pay enough attention in logic class.

        Also, that premise is very likely correct.

        1. Cut him some slack, he’s trying to remember something he learned a thousand years ago.

    2. “Well, for the democrats to make D C a state they would have to get a constitutional provisions to allow it.”

      There are constitutional provisions to allow for admission of new states.

  18. Speaking of conspiracies… I’ve tried to post this three times:
    “I think that anyone who doesn’t know who to vote for shouldn’t vote. If you can’t see the existential difference between a Biden win (not the same as Biden) and a Trump win (not the same as Trump), you shouldn’t vote. Anyone who can’t see the difference between our electoral system and, say, Italy’s shouldn’t be writing articles.” as a comment to
    https://reason.com/2020/11/01/why-cant-they-both-lose/?utm_medium=email#comments
    and then again this
    “Why aren’t you allowing comments? I’ve tried to post three times.”
    Perhaps it’s because the article is dated “From the November issue”?

  19. It’s about time Democrats started playing the “Armageddon!” game. It’s worked well for Republicans.

  20. This assumes that the Democrats win the Presidency, the House, and the Senate.

    Remember who it was assumed would win the election in 2016.

    1. There’s a demographic wave underway with your side’s failure embedded in it.

      1. lolol. The idea that people are genetically predisposed to vote Democrat is racist.

        Latinos with firsthand experience with the damage of socialism are coming back to the Republican party and spreading the word how dangerous the socialist marxist wing of the Dem party is.

        1. The Cubans were Republican all along.

          “spreading the word how dangerous the socialist marxist wing of the Dem party”

          How dangerous can people who don’t technically exist be here in the real world?

          1. The Squad self-identifies as socialists. Are you mansplaining to them that they aren’t what they say they are?

            1. And the leaders of BLM claim Marxism.

            2. Democratic socialism is not the same as what you’re describing.

              1. Yeah it is. Sanders told us how great a job Maduro was doing not too long ago. Democratic Socialism is Socialism.

                1. If you think Sanders is basically Maduro then you’re a crazy person and there’s not much we can discuss.

                  1. Ah so they were lying, not you. Got it.

                  2. Sander’s mouths about Nordic economies yet has never ever been there.

                    Meanwhile, he denies and denounces Maduro yet visits there and praises them.

                    Weird.

                    1. You need to go to Norway to understand the Nordic system?

                      I know you gotta demonize, but this is ver yweak.

                    2. Sanders allegedly believes in the Nordic Model, but has never done any political exchanges with them?

                      Sanders allegedly isn’t a Socialist, but has done oodles of political exchanges with Socialists?

                      The prominent Left spends plenty of time in the South American Socialist countries, zero time in Nordic countries, yet they claim not to be South American Socialists.

                      They are liars.

                    3. “Sanders allegedly isn’t a Socialist”

                      Who told you that? What he isn’t is a Democrat. That’s what that little (I) next to his name means.

                    4. ” he denies and denounces Maduro yet visits there and praises them.”

                      Make up your mind. Is he praising them or denouncing them?

                  3. “If you think Sanders is basically Maduro ”

                    Irrelevant, as the question was whether there are any actual Marxists in the Democrats, and Sanders isn’t a Democrat.

              2. Democratic socialists are obviously socialists and Marxists. The fact that there are other variants of socialism and Marxism doesn’t change that.

                In practice, democratic socialism leads to authoritarian socialism, and eventually communist dictatorships.

                1. You have called the left Soviets and Marxists and Nazis in this thread. With such partisan nonsense, your predictions are not very credible.

            3. No, I’m mansplaining to you that your imagination has gotten the better of you. Insisting “nuh uh, that’s not the way I imagined it” is not persuasive.

              1. Well, unlike you, I don’t have to imagine. I’m an immigrant and I know socialist countries first hand, both of the democratic and of the Democratic variety. They are all shitholes. And people like AOC and Sanders are advocating turning the US into those kinds of shitholes.

        2. “The idea that people are genetically predisposed to vote Democrat is racist.”

          And you just brought it up.
          Therefore, you are racist.
          QED.

        3. It’s not genetic.

          It’s the emptying of our rural backwaters (bright flight, economic collapse, foot-voting). It’s the decline of superstition’s role in our society. It’s the steady attrition among racists, gay-bashers, misogynists, and other right-wing bigots.

    2. “Remember who it was assumed would win the election in 2016.”

      The person who won by around 3,000,000 votes cast.

      1. Socialist countries are governed by majoritarianism.

        Fortunately, the US isn’t governed by majoritarianism.

  21. If some of you are ticked off now, just wait till next term when Trump gets to appoint at least 2 more

    1. How many will he appoint from his prison cell?

      1. do y’all understand the term “tit for tat”?

        1. Leave Melania out of it, you.

      2. Didn’t Jimmy Carter call the Rose Garden that?

        1. Donnie called it a “dump”. And proceeded directly to starting dumpster fires.

  22. Democrats should abolish the lower courts, then recreate new lower courts but under a different name. Reconfirm Democrat appointed judges and confirm new judges to fill the now empty seats. Viola!

  23. “if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution”

    Not counting the most obvious: Impeach and remove the Trump appointees to the Supreme Court.

    1. Impeach and remove the Trump appointees to the Supreme Court.

      You with this again? I take it since last night you’ve plotted a strategy for how Harry Reid can nuke the Constitutional requirement for a 2/3 majority?

      1. Well, THAT is fairly obvious: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”

        Once they refuse to seat 25 Republicans, the Democrats will be a 2/3 majority of the Senate.

      2. ” I take it since last night you’ve plotted a strategy for how Harry Reid can nuke the Constitutional requirement for a 2/3 majority?”

        I figure he can use this thing called an “election”.

        1. I figure he can use this thing called an “election”.

          To impeach and remove Supreme Court justices? That would be…. interesting.

    2. You know, the Democratic party doesn’t consider 100% of batshit crazy leftists.

      1. Bummer for you, I guess.

  24. “The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through.”

    And there’s the big lie that keeps getting repeated. If the Senate majority and the President are of different parties- then the Senate doesn’t have to vote. (It doesn’t have to anyway). But if they’re of the same party- the Senate can vote- if it wants to. Not voting is the Senate not giving consent. Which is what they did in 2016- withheld consent.

    1. That rule was made up two days ago.

      1. The Senate has always had the option of not consenting to a nominee by not taking up their nomination at all. There’s nothing unusual about it.

        Pronouncements like “we think the American people should vote on this in the next election” are not general rules.

        1. NOYB2 — They become general rules after your side does it, and the other side says, “Good one, we’ll insist on it too.”

          Then you say, ” No! No! No! It’s not a general rule! It only applies when it helps my side.” Then everyone starts laughing at you.

          1. “They become general rules after your side does it, and the other side says, “Good one, we’ll insist on it too.”

            No they’re still not rules even then.

            Sorry

            1. Where were you when Mitch was imposing the “McConnell Rule”?

          2. And Democrats are free to insist on “the rule”. That is, when Democrats hold the Senate and a Republican president nominates a SCOTUS judge during an election year, Democrats are free not to act on it. That’s the rule.

            The rule is not, and has never been “no SCOTUS nominations considered during an election year”.

            1. You must be new here. Why not be quiet and watch for a while?

              Or keep whining senselessly. Culture war casualties have rights, too — Including the right to rant and whimper inconsequentially.

      2. No, Democrats have been whining about this for at least 4 years now, and just ignore it when they’re corrected on this point.

        1. Give up all possibility of future returns in order to secure a short-term gain. This is why Conservatives keep losing on important topics.

          1. What “future returns”? Do you seriously think that after impeachment and Kavanaugh, Republicans can trust Democrats on anything?

  25. The filibuster will die, but none of the others will happen unless the Rs push through a justice this year.

  26. Expanding the Supreme Court and lower courts is an interesting idea. If the Democrats truly think that a bigger SCOTUS, more lower courts, and no filibuster are good ideas, I guess there’s no reason to delay. That’s something that can be accomplished immediately. Of course, Puerto Rico can be granted their independence as well. And retro-cession of most of DC to Maryland seems like a good idea. Retro-cession may or may not require the consent of Maryland, we’ll just have to see what the 18 justices have to say about it. It’s also possible that the Constitution has evolved to fix the size of the court at 18. The justices will have to weigh in on that as well.

    1. Marylanders would have to vote on a DC retrocession, my guess is it would be a big fat NO. If they were smart, republicans could have promoted an idea for a new state that includes DC and the Maryland and Virginia suburbs, that would definitely make Virginia a red state once again and probably Maryland purple.

  27. This is beyond ridiculous. I came here because I was interested in what thoughtful serious conservatives had to say, given the flood of Josh Blackman blatherings it’s clear that that thoughtful serious conservatives have left the building.

    I’m done with this blog until the authorship gets cleaned up.

    1. Don’t let the page closing hit you in the ass on the way out – – – – – – – –

    2. Well……………………bye.

    3. ” it’s clear that that thoughtful serious conservatives have left the building.”

      The species is nearing extinction, with no known breeding pairs remaining.

  28. The result will be a permanent Democrat majority, and Democrat control of the three branches of government. The US will be like California, and there will be no legal recourse.

    1. Except for 2nd amendment remedies

      1. Didn’t you read? It’ll be like California. No 2nd amendment remedies.

    2. DaivdBehar — There really shouldn’t be any legal recourse. You think Republicans are entitled to legal recourse if they lose at politics? Republicans chose Trump, and encouraged McConnell. Maybe that means they lose big. If so, you don’t get to go to court and say, “No fair.”

      But there is political recourse. If Democrats in power can figure out how to use politics and the legal system to strengthen majority outcomes in elections, then Republicans may have to learn to adjust their politics. No more governing from the far right, by a permanent minority of out-of-the-mainstream ideologues. If that happened, it would probably mean the nation had found its way back to better political health.

      1. “But there is political recourse. If Democrats in power can figure out how to use politics and the legal system to strengthen majority outcomes in elections, then Republicans may have to learn to adjust their politics.”

        The other “political” resource is that Republicans give up on politics and start shooting Democrats in the face. Be careful what you wish for.

      2. Stephen. Where do you live? You need to move to Baltimore or to Detroit for a while, report back. If you are a tech billionaire, and live in a beautiful $50 million house in San Fran, go outside. People have set up tents, are throwing away their needles where your children will walk to skip rope. They are pooping on the side walk. And, there is nothing you can do about it. You may not even verbally criticize them. You will make the headlines as a racist.

        When the Democrats take over, despite your being a tech billionaire, you will be living in 19th Century squalid, typhus infested conditions. That is the California act. The Democrat Party will take it national.

  29. Yes, I think the dems are barking mad enough to try and pull off all of this if they win, using the excuse that they need a strong response to erase four years of Trump, and the past 50 years of generally center-right power in DC. They will move quickly because they will likely be voted out in the 2022 midterms, unless they find a way to keep permanently, which I wouldn’t put past them. But even FDR stopped short of packing the SCOTUS.

  30. To forestall this horror movie screenplay, the answer is for the Republicans to win in November, and then do several of these things themselves.

    Certainly an end to the filibuster, because that has given 3-4 RINOs too much power.

    If the GOP adds judges, then Trump fills the posts.

    Once that’s done, it probably won’t be needed to make D.C. part of Maryland, nor grant P.R. its independence. But both are good moves anyway.

    1. “If the GOP adds judges, then Trump fills the posts. ”

      How many judicial seats will Jared have under your plan?

  31. If the Democrats abolish the filibuster, expand the courts, grant statehood to Puerto Rico and DC, they will simply be playing the same kind of hardball the Republicans have been playing for 30 years. Does anyone seriously think McConnell and Trump wouldn’t do all those things if they would benefit Republicans?

    But let’s back up a minute. *Whatever* the Democrats do, they have the moral high ground because they’re trying to enact policies *supported by majorities of the American people that have been thwarted by anti-democratic institutions.* The GOP is basically fighting a rearguard action to stay in power despite a lack of popular support. Even if one agrees with Republican positions (which I largely don’t), forcing them down the throats of majorities who don’t wan’t them is not how self governance is supposed to work.

    And by the way, my one primary gripe with Obama is that he refused to return fire. Had I been president at the time of the Merrick Garland nomination, I would have called Mitch McConnell in for a chat, and I would have said to him, “Mitch, thanks to the electoral college that you love so much, I don’t have to give a shit about Kentucky. It’s going to vote for Trump no matter what I do. So here’s what I’m going to do. I’m going to devote the last year of my term to ensuring that Kentucky has 50% unemployment when I leave office, and don’t think I can’t. The first plane load of federal regulators is already en route, but it won’t be able to land in Louisville because the FAA just closed the airport there for six months until it’s brought up to compliance with the new regulations I just ordered specially for it. And I’m going to be sure your constituents all know that they’re out of work because I’m pissed at you for not bringing Garland up for a vote.”

    1. To the extent that the democrats’ policies have a majority support, it’s because of the votes of the third world non white immigrants the democrats have forced on America. These were “Americans” that Americans largely didn’t want

      1. So non-White American’s don’t count?

        1. Non white illegals shouldn’t but apparently they do.

          1. Illegals don’t vote, you just feel like they do.

              1. Sam’s the one making a claim something unobserved is going on, burden’s on him.

            1. Illegals count in the Census.

              And they have voted.

              1. You don’t think they should be counted in the census?
                Because beyond that being explicitly what the text of the Constitution says, that’d they’re governed by our laws, and they’re people.

                Any republic running on the consent of the governed should count them.

                1. Those entering the country illegally deny the sovereignty of the nation they’ve invaded, and are thus not “the governed.” Their presence should not determine how many representatives and electors are assigned to a state.

        2. I didn’t say that. But, if you polled Americans in 1965, prior to the passage of the Immigration and Nationality Act, and said “Do you want to replace the population of the United States with illiterate third worlders from Latin America, Africa, the Middle East, what percentage do you think would have said yes?

          1. How about if you asked Congress people in the early 20th century if the President should be authorized to hire and train more hearings officers to hear more deportation hearings?

            Obama did exactly that, and the resultant roar of crickets was overwhelming.

      2. “, it’s because of the votes of the third world non white immigrants the democrats have forced on America.”

        The news that Democrats were out there, kidnapping foreigners and forcing them to come to the United States didn’t get covered in the mainstream media because they’re in on the conspiracy.

        1. No, they didn’t “kidnap” anyone. But they lied to the American people, rammed through immigration laws the American people didn’t want, got rid of “public charge” restrictions, put in stupid “family reunification” policies, so basically, we get hordes of worthless peasants from Latin America while doctors and engineers from India and Korea wait for years.

          1. They forced all those poor helpless people to come here is the point.
            The last immigration reform bill happened during the Reagan administration. The problem then was the same as the problem now, not enough people authorized to hold deportation hearings to get all the unauthorized immigrants kicked out of the country. In succeeding administrations, they have continued to hold steady at the current authorization. When Obama went to Congress and specifically asked for authorization to hire and train more people to hold deportation hearings, the Republicans in Congress didn’t even bother to hold a hearing to consider the request.

            ” so basically, we get hordes of worthless peasants”

            Goody, more Republicans.

    2. That notion is absolutely mentally ill. Were you even there?

      The notion that Obama was some nice, bipartisan guy is comical. He flatly refused to even talk to the other side, only using them as props. He didn’t even engage the debate, preferring to argue with straw men as he used his phone and his pen … “there are those who say we have to kill babies in order to have healthcare.. but I say, No!”

      He is the guy who famously said “Elections have consequences” right out of the gate. He pushed through a complete makeover of the insurance industry without ever even attempting to bring republicans along. That simple act of hubris… handing healthcare reform to Pelosi instead of attempting to bring along a more bipartisan coalition… fixed his path. He never looked back. He went to war in multiple countries without even bothering to conform to the War Powers act, let alone getting an actual declaration from congress.

      Only a simpleton would confuse Obama’s public persona with his actual actions.

      1. Also don’t forget the voters spoke and removed the Dem majority in the Senate but the Dems rammed the ACA down our throats in a lame duck session.

        Revisionists like krychek and the Dems in general are despicable.

        1. Guess which side is running away from their opposition to the ACA now.

          These myths of unpopular ACA and hyper-partisan Obama won’t last in the light of day for long.
          Like birtherism and sekret Muslimness, before them, your neo-Bircherism is no it’s way out. Just don’t shoot anyone, eh?

          1. Sarcastro, did you happen to notice that Republicans are now calling it Trumpcare? Seriously.

            1. Upon Googling I do see some of that. Dunno if it’s the GOP as a group, but it is a sign of the times.

            2. “did you happen to notice that Republicans are now calling it Trumpcare? ”

              Trump forced their hand, when he started claiming to be the guy who wants to fight for protecting pre-existing conditions.

            3. Do you know how many changes the Republicans have done to it?

              Or do you believe it’s the exact same thing it was in 2010?

              1. “Do you know how many changes the Republicans have done to it?”

                One: They set the individual mandate tax to $0.

          2. If I wanted to shoot someone, I would join BLM and go to some Democrat shit-hole. Then I’d get away with it.

            1. As would whoever shot you.
              Sounds like a fair trade.

          3. “These myths of unpopular ACA and hyper-partisan Obama won’t last in the light of day for long.
            Like birtherism and sekret Muslimness”

            They went straight from complaining about his racist black Christian preacher directly to complaining that he’s a Muslim, and wanted to be taken seriously.

        2. Sam, I would be far more impressed with the argument that the voters spoke if 400,000 Wyoming voters weren’t able to cancel out 30 million Californians. Do away with anti democratic institutions if you want to wave the flag for “the voters spoke.”

          1. Do you care about the 400,000 Vermonters that cancel out the 30-odd mission Texans?

            1. Yes I do. I don’t think that should happen either. An anti-democratic institution is an anti democratic institution, even when my side benefits.

          2. End Democracy to save it!!!

        3. ” the Dems rammed the ACA down our throats in a lame duck session.”

          Whereas Donnie the Dealmaker said he had a “better-than-Obamacare” plan ready to go on Day One, and it’s still so secret that literally nobody has seen it.

          1. Did you not know they had a replacement bill but McCain the Traitor famously voted it down?

            1. In today’s news, there was a little note saying that McCain is no longer even in the Senate.

              1. “and it’s still so secret that literally nobody has seen it.”

                Except to people who read books and shit.

        4. ” the Dems rammed the ACA down our throats in a lame duck session.”

          By having more than 50 Senators vote for it. Whereas when Mitch wanted to deny Obama’s nominee, he didn’t have 50 votes to deny confirmation, so he didn’t bother to count the votes.

        5. The ACA was “rammed through” in late 2019, during the four months when the Democrats had a filibuster proof 60 votes. It was signed into law in early 2010. Nothing “lame duck” about it.

          There are over 100 Republican amendments in that law. Where do you think they came from?

          1. Not a single Republican voted for ACA.

      2. “The notion that Obama was some nice, bipartisan guy is comical.”

        He started there, but the R’s pushed him left.

    3. Krychek_2 — That’s about what you might have heard from Lyndon Johnson. I kept thinking of Johnson while I was watching Obama let himself get kicked around. I don’t think Schumer and Pelosi have the knack for that kind of political combat. Their idea of political hardball is to figure out what policies work best to get big bucks from wealthy donors, which is unfortunate. They also seem pretty complacent about letting their own base suffer, if they think that suffering can be blamed on Republicans, and might improve their own side’s election chances.

      1. ” They also seem pretty complacent about letting their own base suffer, if they think that suffering can be blamed on Republicans”

        Except for that last word, that’s an indictment of Trump. Striking the ACA will affect mostly rural people, as did Trump’s trade war with China. Take the Chinese out of the picture, and who’s going to buy all those American soybeans? Americans?

    4. Hardball?

      The last time that Republicans added states to the Union in order to lock Democrats out of control of the Senate was during the Civil War.

      What Democrats propose to do isn’t hardball. Since we’ve already used the euphemism “nuclear” to describe past actions by Democrats, we will need a new word for what they want to do. Thermonuclear may work, but I fear it may convey that their plans are just more of the same DC nonsense. This isn’t just business as usual in DC.

      What Democrats want to do is orders of magnitude stronger than anything Republicans have done. Democrats want to lock in majorities in the Congress and ensure Democratic President win *and* ensure that they control the Courts. They want to raise the bar for Republicans in such a way as to enshrine at least a generation of unified Democratic government despite the country being roughly divided by a 50/50 split!

      Name their proposed “reform” of government and I will point out how it entrenches Democratic power in the Federal government.

      1. “What Democrats want to do is orders of magnitude stronger than anything Republicans have done.”

        Apples and oranges. What Democrats have actually done is orders of magnitude less objectionable than what Republicans are doing. If you want to drag what the D’s “want to do” into the comparison, compare it to what the R’s “want to do”.

        Systematically disenfranchising groups of people that tend to vote not the way they like is way more objectionable than acting to keep the Republicans from stealing a Supreme Court nomination.

    5. Nixon did that to Massachusetts, which was a purple state surrounded by red ones. He turned it all blue…

    6. “Does anyone seriously think McConnell and Trump wouldn’t do all those things if they would benefit Republicans?”

      I do seriously think those that. And the reason I seriously think that is because when McConnell and Trump had the power to do all of those things between 2016 and 2018, they did exactly none of them.

      Republicans generally aren’t political arsonists. Democrats are.

  32. The Senate filibuster should remain.

    If one can only muster a majority of votes by a single tally, then perhaps whatever was being voted upon wasn’t worthy.

    If the political party system is going to sadly continue to exist, then a threshold of 6/10 suggests more centrist and agreeable outcomes than 51/100.

    1. Jason, FWIW I agree = filibuster. I have not seen any discussion on what I call: the day after effect.

      So the filibuster is removed. Now what? The consequence I see is making the Senate like the House. Do we really want to eliminate the deliberative aspect of the Senate? Because that is what would happen (it is happening now). I am not sure how to put toothpaste back into the tube (restore the filibuster), but we should try. Our Republic is losing the characteristics of a Republic and slowly sliding toward Mobocracy.

      Expansion of courts…That last happened in the 70’s, passed by Team D coincidentally, and Carter appointed a ton of new district court judges. I think I’d like to fill the current vacancies, and see how that works for a few years. Then maybe expand the district courts.

    2. I agree with this but I think that it has now become a tool for obstruction. I think the rule should be changed, where if you want a filibuster your ass has to stand and speak non-stop no more of this cloture bullshit. Make them stand for days on end see if they care about the issues that much or it may even help to educate the nation if you spend a day talking of why the legislation is bad. Overall I agree I think a form of the filibuster should remain.

  33. If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court.

    Says it all right there – Republicans are stealing seats, they have no legitimate right to appoint Supreme Court justices. But then again, Republicans stole the election as well, they have no legitimate right to govern, either. In fact, now that I think about it, since they’re all unrepentant racists and white supremacists, Republicans have no legitimate right to even exist. It’s no wonder Democrats are rebelling against this government – it’s all illegitimate!

    1. Did you see how no one mentioned the Kennedy seat? It’s almost as though Dems care about the process and thence arise their objections.

      Crazy, I know.

      Also, LOL at arguing that Dems don’t think GOP-appointed Justices can be legitimate, since I’ve seen the actual argument on here that Democrats are anti-Constitution and thus their appointing of Justices is illegitimate.

      1. “It’s almost as though Dems care about the process and thence arise their objections.”

        AHAHAHAHAHAHAHAHAHHAAHAH

        Thanks for that.

        1. Fuck you.

          1. Oh you mad!

          2. I didn’t actually post that this 11:42 post. Someone is very petty.

            1. You didn’t post that 11:42 post under your name?

              Have you ever met the truth?

              1. I wish I could retract this comment. That really isn’t Sarcastr0.

                It’s ‘ Sarcastr0’.

                1. And another Trumpfan runs headfirst into a fact.

                  1. Sam found out he was wrong (in a way I wouldn’t have figured out myself) and publicly owned up to it. Unadulterated kudos to him for that.

                    1. Perhaps Prof. Volokh will remove the disingenuous comments. He has repeatedly indicated that he will censor when he believes comments should be stricken.

                      Your move, Professor.

      2. Right, haven’t heard mention of how Anthony Scalia arranged a hand of his seat to Gorsuch. Nobody thought that political manuevering by a Supreme in return for a benefit to his son was a tad unseemly? Or is “unseemliness” an effete notion in among Rs, especially in the time of Trump and plague atop a badly damaged economy?

    2. ” Republicans are stealing seats, they have no legitimate right to appoint Supreme Court justices. ”

      Two vacancies opened during Trump’s term of office, and he appointed two justices. Giving him a third is, in fact illegitimate.

  34. Prof Blackman, you should increase the size of your list. Democrats will be taking many more steps that is designed to entrench their political power in D.C.:

    5) Increase the size of the House
    6) Abolish the Electoral College – unofficially- via Congressional endorsement of the NPVIC, increasing the size of the House, or some other mechanism.
    7) Implement “gerrymandering reform” in such a way as to guarantee they have Democratic majorities in the House for the forseeable future. Democrats owned the House during the latter half of the 20th Century, and they want to own it again in the 21st Century.
    8) Implement “campaign finance reform” to stifle conservative media and conservative speech.

    Those are just the ones I can think of off-hand. If Democrats get big enough Senate majority, the US Government will look radically different after 2021.

    1. 9) make it legal to hunt Republicans for sport.

      1. Silly Sarcastro…

        Liberal democrats don’t hunt. There wouldn’t be any hunters.

        1. LOL if you don’t think Jeff Bezos is into the most dangerous game.

    2. just like republicans
      1. gerrymandered most conservative states to give them an advantage after the 2010 census.
      2. got citizens united decided then immediately began passing legislation to kill unions so that only corporations could take advantage of its holding.
      3. Employed the filibuster to such a degree that the 2010-2012 congress passed less legislation than the do-nothing congress just to tank Obama’s reelection.
      4. When an election seemed to be slipping from them ran to a republican controlled supreme court to get a president elected by a court; at that point, you were fine with something other than the electoral college choosing who was president.
      5. Block any new states to the union for fear of making the senate bluer.
      6. Passed Id voting laws with the hopes of making it harder to vote for native American, Hispanics, and African Americans
      7. got a republican court to kill a provision of the voting rights act that kept confederate states in line.
      SOOO essentially yalls asses did this shit first we are just getting ready for retribution.

  35. “If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—”

    How does he get two seats? Even if you buy the concept, only one is “stolen”. If you buy the Biden rule, Gorsuch is legit. If you don’t, Ginsberg’s replacement is legit.

    1. “wait, wait, wait, we only stole one!” isn’t as strong a defense as you seem to believe.

    2. Honestly, if they would let the Ginsburg seat alone I think democrats would forgive the Scalia seat.

      Roberts has shown that the court will continue to be moderate but if you have a conservative activist court on the bench then goodbye to legitimacy.

  36. So here is where the Comentariat appears to be after this windfall in their own favor.

    ‘The left is unhappy and is going to try something legitimate if not within the current norms if they win, and at that point we will have to have a civil war. And the political violence I advocate for will be the Dem’s fault.’

    That’s not going to happen. Some of you were always this silly, some of you have become this silly, but you are all very silly people.

    1. So here is where Sarcastro (god what a stupid fucking name) is all day every day

      “WAAAAHHHHHHHHH!!!!”

      1. Shut the fuck up

        1. Again, not me posting.

          1. Well, you’re right. An inspection of the page source shows that guys username is actually ‘ Sarcastr0’. Which is a “Hair Space” punctuation mark.

            That’s pretty lame.

            1. When the expert on lame calls you lame, you pretty lame.

            2. Good hunting Sam, viewing page source wasn’t something I’d considered.

              I find it amusingly telling that someone trying to make me look bad makes it look like I lost my cool and post pure insulting swears on the Internet. I must be doing something right.

              1. ” I must be doing something right.”

                Too far.

                heh

  37. Regarding DC statehood, on the off chance Republicans control both houses next session, is there anything to stop them from ceding DC back to Maryland, except perhaps for a small federal enclave? That seems the best solution to me.

    1. The Constitution just set up the possibility of having a small district under the governance of the federal powers. I assume Maryland and/or Virginia would have to consent, which under the Dems they probably would not do so. Probably the best response would be to just reassert complete federal jurisdiction over the District, dispose of local government, and allow the residents to either become dual citizens of either state (which was what it was before the civil war I believe.)

    2. It’s a bit problematic that DC’s vote in the EC is mandated by a constitutional amendment. So you’d get any homeless people camping out on the Mall having as many EC votes as Montana.

      1. Camping out? You have to have a residency in the state/ district to vote. therefore, congress can just say no one can live in the federal enclave and that takes care of that matter.

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  39. I see where New York City is going to erect a statue of Justice Ginsberg in Brooklyn. Given her fierce defence of equality of the sexes, and given the recent spree of tearing statues of old white men, I would like to recruit a mostly peaceful crowd to tear down the statue of the old white woman as soon as it is erected.

    1. Good luck. I’m sure Mrs. Ginsberg would have approved of your commitment to equality of the sexes.

    2. Sure let’s equate the old white woman who fought for gender equality. With the lives of old white men from the confederacy who owned slaves and betrayed their country. We should always honor traitors.

  40. If Republicans succeed in stealing two seats

    When did “using the legitimate powers of your office” become “stealing”?

    1. The left is operating under the assumption (presumption?) that liberalism is the only legitimate form of representation in the government. Hence why they don’t think twice about their court packing scheme. In their minds it is only restoring the proper balance. One cannot “steal” power when it always belong to them (at least in their warped minds.)

      1. “In their minds it is only restoring the proper balance. One cannot “steal” power when it always belong to them”

        You are right that one cannot steal what one rightfully owns. When you’re whining “but we stole that fair and square” as it gets taken back, that’s not a good look.

        1. Isn’t there are rather famous funny court case where a guy see that his television was stolen by his neighbor so he breaks in to steal it back when the police won’t do anything? I believe it ends with the appeals court affirming his burglary conviction because, even though it was his television in the end, breaking into a house to reclaim property is not a defense (or was not one under state law, don’t think a constitutional question was raised or decided.)

          1. Isn’t there an irrelevant case where all the things I imagined were true, and that proves my point?

      2. you stole Merrick garlands seat and used a flimsy excuse. Now that the shoe is on the other foot you say to hell with tradition. So democrats are to hell with tradition we want 15 on the court and we have the power to do it.

    2. “When did “using the legitimate powers of your office” become “stealing”?”

      When Mitch put forth the “McConnell Rule” that Presidents aren’t allowed to pick Supreme Court justices during an election year, and then pretended he never said any such thing just 4 years later.

      1. The President gets to appoint judges. The Senate gets to confirm them. Both were “legitimate” uses of power. The fact that those uses had partisan applications is lost in the argument because neither side willing to come out and say “we are doing this because we don’t want the other side to have a win.”

        The script here is just flipped with the same result. Happens all the time in politics. The media just never likes to call liberals on this double standard. But if this was the last few months of a Clinton presidency and she was on the ropes with a friendly Senate you can’t tell me they wouldn’t fill this seat in 2.1 seconds.

        1. “Both were “legitimate” uses of power. The fact that those uses had partisan applications is lost in the argument because neither side willing to come out and say “we are doing this because we don’t want the other side to have a win.””

          Not so much “legitimate” use of power. Losing a vote is losing a vote. Forgetting to hold a vote because it won’t come out the way you want is not legitimate. It’s not legit when the other guys do it, and it’s not legit when your guys do it.

          1. There is nothing in the Constitution or even the Senate rules of order that says it has to vote on an appointment. Now you are just making stuff up.

            1. True enough, it says “with the advice and consent of the Senate” officers shall be appointed. So when Mitch decided not to hold a vote, that implies consent with no advice, and the appointment of Merrick Garland was approved.

              1. I, too, can win Internet arguments by pulling Senate procedural requirements out of the filthy heat of my own ass.

        2. Your right. Therefore court-packing is ok. The constitution gives congress the power to decide how big the court should be. So let’s make it fifteen.

          What’s lost on you is the fact that only because you have the power to do is not the same as whats right.

          1. If you want to use one power grab to justify another one then sure it is perfectly alright. Just don’t be surprised when that results in a zero-sum game.

            1. Maybe if some Republicans had objected to Mitch’s power grab in 2016, they’d be in a position to complain today.

        3. Again your argument is that its ok because they are legitimate uses of power. Court-packing is the prerogative of Congress.

          Meaning if democrats court pack I hope you post about how it’s ok because it’s a legitimate use of their power.

          The issue here is that their unspoken norms that you follow to protect the minority. Essentially protect your ass in the future when you are the minority. Court-packing has been one of them. Mcconnell made the no confirmation in an election year one of them. Democrats argue against it and he stood firm on it. Now with about an 1/8 of the time from last time he is flipping on his rule.

  41. I admire and respect the honesty of no longer pretending that governance and good policy matter and that the only goal is retribution.
    Mind you, it makes the auther a thoroughly reprehensible excuse for a human being and a waste of chemical flesh. But at least on honest one.

  42. If “retribution” is what the left is going to do because the people simply selected Trump (who by all measures really didn’t do much) instead of “installing” their selected pick, then I fear Civil War will be the result.

    1. Funny how those already kinda into political violence are now wondering about political violence becoming regretfully neccessary.

      We’re not having a civil war Jimmy, right-wing political violence will not end well for your reactionary non-ideology.
      You’re just going to have to deal.

      1. Yeah “right wing violence” is a tired old trope. How much “violence” was there when you had lockdown protesters, LEGALLY armed, in Michigan? None.

        How much violence is there in Portland when the city politicians refuse to enforce the law at the expense of the civil rights of the residents of that city? Tons.

        I think you are going to find out that the people who you have falsely accused of “violence” have actually stayed their hand with a much patience.

        1. “How much violence is there in Portland when the city politicians refuse to enforce the law at the expense of the civil rights of the residents of that city? Tons.”

          Starting back when Jeremy Christian killed two people on the public-transit train on the way home from a rightwinger rally.

        2. “I think you are going to find out that the people who you have falsely accused of ‘violence’ have actually stayed their hand with a much patience.”

          Unless you count the murdering.

          1. Like the murders in the lawless zone communist protesters set up and the local government did nothing to stop?

            1. I’d need more information. What did you imagine happened?

                1. Nothing in this story says anything about who did any shooting, and it says protesters weren’t there.

                  And there weren’t any “communist protesters”.
                  You wanna try again?

                  I pointed to some murders actually carried out by a right-wing rally participant.

                  1. That is some selective reading….

        3. Your full of shit I have seen those assholes march with their guns, they destroyed property. Plus police seem to be nicer to the white-armed vigilantes than the black protestors that are unarmed.

          1. Yeah and I am the one “imagining” stuff…..

            1. indeed you are.

    2. “If “retribution” is what the left is going to do because the people simply selected Trump”

      The thing is, most of the people who voted didn’t “simply select Trump”. That seems very likely to be the case again this year.

    3. Nah no civil war when the court picked our president I doubt there is gonna be one now

  43. You’ll know the D’s are ready to negotiate when they announce their plans to cut costs by cutting back Secret Service protection for former Presidents whose terms end after January of 2020.

    Donnie won’t be able to bill the government for the hotel rooms they occupy and instead will have to start paying the private guards he hires to keep him safe. That’s how they’ll get HIS attention.

  44. Give the Court one new member every two years (the historic average); allow it to fluctuate in size as deaths and retirements happen less regularly. This could be done with a simple act of Congress. The ‘out’ branch of the Biparty might insist that it not take effect until the next election.

  45. “Toobin lists statehood for D.C. as the second option. I disagree. The presently-constituted conservative Supreme Court may very well declare that bill unconstitutional. ”

    Why? Article I allows Congress to, by statute, define federally-governed area for the seat of government. There is nothing that restricts Congress from subsequently resizing the area, provided it’s not extended past ten miles, squared. Why shouldn’t Congress be able to reduce the size and grant statehood to the previous federally-controlled area?

    1. plus its not even ten miles anymore. Virginia wanted their land back lol

  46. “Why?”

    Because Republicans wouldn’t like that to happen, and that makes it unconstitutional.

  47. Honestly i think your analysis is full of shit.
    1. killing the fillibuster. Look at the history of it in the pat 20 years. Democrats filibustered a majority of Bush appointeed to the lower courts and Republicans threatened to do away with it. It was saved was because a group of 8 senators from both sides said they would always vote against killing the filibuster that way republicans wouldnt have enough votes to kill it. The compromise was that the judges whose credentials were undeniable got confirmed. Then once Obama was elected Senate republican continually used the filibuster to essentially stop evreything from passing. They refused to compromise. Therefore, democrats removed the filibuster for lower ct appointees, republicans retaliated by removing them for all nominations.
    Senate republicans pulled this BS with merrick garland saying judicial appointees should not be voted on in an election year. That the will of the poeople should be heard. Now they backtrack with ginsburgs seat. The retaliation by democrats is probably gonna be to wait and see if the court starts striking down legisltion using partisanship, ie. look at the obamacare case or the civil rights case, then i think democrats will retaliate by packing the court.
    The filibuster will only die in my eyes if mitch mcconell tries to use it to kill all legislation. If that happens kiss the filibuster goodbye.

    Now the one i think should be done is statehood for Puerto Rico. Josh is wrong they have consistently held referendums on whether they want to be states and a majority has voted yes. Plus after the disaster of hurricne maria and harvey which saw how congress gave free money to Texas but would only give them a loan. Even though puerto rico had more distruction than houston.

    In this last term Roberts made sure that democrats would have no taste to court pack. With decisions in the DACA case the abortion case and the LGBTQ decision. Yet i fear that if they do confirm all bets are off. I mean technically republicans could wait. Trump could get reelected or they could hold on to the senate. meaning they can dictate a more moderate member than a liberal firebrand. That would still be a victory considering how liberal Ginsburg was.

    Yet, my beef with Blackman is that these are all hypotheticals. I hate that he acts like he knows what democrats will do. Yet berrates democrats for acting like we know what trump will do.
    So stop being a hypocrite the most we can do is speculate. No one knows what will happen.

    1. “So stop being a hypocrite the most we can do is speculate. No one knows what will happen.”

      New here?

      (I fully agree with you BTW.)

    2. “So stop being a hypocrite the most we can do is speculate.”

      As if no speculations ever turn out to be accurate. sometimes the writing is on the wall and ignoring it serves nobody. back when Newt was all hot and bothered to impeach Clinton he was warned that the Democrats in the Senate wouldn’t convict him, and the backlash would work against the R’s. Newt pushed for impeachment anyway.
      W was cautioned against starting a war in Iraq, with “quagmire” being thrown out with some frequency. Then we got into that war and it turned into a quagmire. We spent a great deal of American treasure to build ISIS, and then another big pile of dollars to defeat it. How was W supposed to know that if we showed up with tanks and guns the Iraqi people wouldn’t be glad to see us, and might start shooting back. all that quagmire talk was speculation.

      1. This is my main beef with Blackman. First of all your two examples are full of hindsight. Opinions were split on the Clinton issue because they taught that conservatives would be enraged about the Lewinsky scandal. A lot of democrats agreed with this why do you think Gore didn’t have Clinton campaign for him as much as Obama campaigned for Hillary.
        The Bush travesty had more to do with the fact that he had intelligence that there where no WMD and yet he used WMD as an excuse to invade.

        My point is this, speculation leads us nowhere it just helps enrage people why doesn’t he instead try to write about what congress should do to diffuse the situation.
        Instead, his message is essentially democrats can’t be trusted so ram the nominee through because of this list of horrible things I say they will do.

        We have had time we were sure something was gonna happen and it didn’t. We taught Roe was dead when Casey made it to the Supreme Court yet the court found a way to keep it and just weakened it. During the Bush administration we taught the filibuster was dead and yet 8 senators from both parties were able to work out a compromise to keep it alive.
        Essentially all Blackman did here was fear monger anyone can do that.

    3. “Then once Obama was elected Senate republican continually used the filibuster to essentially stop evreything from passing.”

      This is a historically-revisionist fairy tale that Democrats like to tell themselves at bedtime, to justify their political arson. Republicans used the filibuster. Republicans used the filibuster more often than the historical norm. They manifestly did not “continually use the filibuster to essentially stop everything from passing.” Obama lower-court nominees were still confirmed at rates comparable to Bush lower-court nominees.

      1. Bullshit first two years of bush’s term about 60 filibuster Obama’s first two years 140 filibusters. Why is this important because we were in the middle of a financial collapse and republicans sat on their asses and used the filibuster with impunity.

        The second half of Obama’s term 120 filibusters to bush’s 60 something. Also, it’s conveniently around the times’ republicans let it slip that they were doing him to deny him a second term

  48. Expanding the number of federal judges and statehood for PR and DC all have reasonable policy bases. There are more people in the country than in Jimmy Carter’s day, and they are more litigious.

    Constitutional issues woth DC statehood could be addressed by reducing the size of the federal territory to exclude residential neighborhood, although not necessarily wothout collateral consequences. The guaranteed Electoral College representation might end up creating the equivalent of a rotten borough.

    I suspect that moderate Democrats would waiver at packing the Court. In addition to the prospect of the court becoming a farce with hundreds or thousands of justices as each incoming regime creates new ones and installs its puppets, there is also the consideration that Justice Thomas is no spring chicken.

    1. I find it funny that the whining of the day for liberals is complaining about how the majority’s will is being circumvented because of the electoral college, but they have no problem giving the residents of a 8 square mile city 2 senators because that somehow jives with representative democratic principles that the libs seem to eschew about.

      1. I can’t argue for complete ideological consistency, but certainly general democratic principles are compatible with giving 700,000 people in the nation’s capital a vote on its legislators. DC, after all — despite its acreage — has more people than Vermont or Wyoming.

      2. Plus at the rate is growing it will also have more people than Alaska, South Dakota, and North Dakota.

        If it was a state then it would have the 34th biggest economy in the union.

        Yet somehow almost a million people don’t have senators or representatives to argue for their needs and you act like that’s a small matter.

  49. Don’t Democrats have to win elections to make any of the proposals happen?

  50. FDR appointed 9 Supreme Court justices in spite of failing to pack (“reform”) the court in 1937.

  51. I’m not sure how you’re reaching a 6-5 liberal majority by adding two Democratic justices to a what is presumably a 6-3 conservative court. (A lot of people seem to be doing this, lately.)

    All that is to say that Democrats, if they are shrewd about power, might as well restore the Supreme Court to its historical alignment with the circuit courts of appeal. Thirteen justices (one for each of the circuits, if we include the Federal Circuit and DC Circuit) would allow for four new appointments, giving Breyer, Kagan, and Sotomayor enough company to form a reliable majority.

  52. The Dems made an important contribution to this nightmare in 1986 with the strategy they used to oppose the nomination of William Rehnquist to be Chief Justice. They made bogus arguments that Rehnquist was anti-semitic. They were not able to stop that nomination, but a year later they were able to stop the nomination or Robert Bork. They took things even further when they opposed the Clarence Thomas nomination. The scoured the Earth looking for dirt to use against him.

    Things were bad during the 90s. The GOP did not oppose Clinton’s Supreme Court nominations, but they slowed down nominations to the lower courts. They never used the filibuster and they never overtly cited the political views or affiliations of the nominees, but it was obvious that these were hidden reasons for the delaying actions. These delays were not always successful.

    Nominations to lower courts were slow during the last 6 years of the Clinton presidency; they were even slower during the first 4 years of the Bush presidency. Schumer changed the rule in 2001; previously the political views of a nominee were not supposed to be considered when voting on a nomination. We knew that Senators did this; but they could not be overt about it. And sometimes they ended up having to vote for someone they opposed (look at the votes to confirm Ginsburg and Breyer). The Democrats also used the filibuster to block nominations. The GOP agreed not to abolish this newly created judicial nominee filibuster rule with a compromise (the Gang of 14 agreement).

    McConnell’s comment in 2016 was unwise and poorly stated. He should have clearly said that:
    1. under the rules as they existed prior to Schumer’s change, the Senate could not have considered a nominee’s political views.
    2. in light of the new landscape created by Schumer’s change, a Senate controlled by one party is no longer obligated to consider a nomination made by a President of another party in an election year where that President is not running for reelection.

  53. So the Republicans play take no prisoners politics, with no regard to whether the American people agree, or whether they will have to pay later

    they will have to pay later

    It is ridiculous to hand wring over this, your ilk are the cause of it

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  55. I said it then, and it turns out I was right. The Republicans’ insistence on blocking Garland was short-sighted and would come back to haunt them. Obama had every right to appoint him as the sitting president. Garland was ‘moderate’ and the best they could have hoped for. And he would have also afforded the Court some balance, so Roberts wouldn’t have to bend over backward to avoid the Court appearing political with every decision. He should have been confirmed. Showing respect for the process and presidential power afforded by the Constitution would have bought Republican lawmakers some credibility. But instead they chose gameplaying. Which only invites more gameplaying. God, I hate politicians…

  56. No one can blame them. Rs have had no interest in doing anything by the book in their quest for power so why should the Dems? Rs just want to handicap Dems at every twist and turn but never themselves.

    Screw em- pack it all. Burn it down.

  57. I only have one concern about the supposed “principle” of waiting until an election to confirm a SCOTUS pick. Aside from that being the argument some Rs fed the media when stalling Garland, did anyone who considers themselves conservative by any stretch actually invent this principle out of thin air? I don’t believe in waiting. Our parties didn’t believe in waiting 150 years ago. The problem was simply that Ds didn’t have the numbers then and still don’t now.

    For me personally, I don’t believe in any such principle of waiting and I don’t think we should invent one going forward. Elections have consequences and voters should not be spared them. Obama was elected and the red wave midterms were a clear reaction against him. The Senate is Constitutionally permitted to do this. “by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” It’s pretty clear with zero room for interpretation or debate. McConnell stated pretty clearly what was going on as well. The Senate is a check and balance against the President for SCOTUS and the Senate was not going to confirm anyone appointed by Obama. He himself even said if the shoe were on the other foot, Ds would do the same. Remember that Biden rule? Add it to the list of things Biden forgot too.

    If Ds didn’t want Trump SCOTUS picks, they should have voted. Once again, people are trying to retroactively nullify elections. Stop complaining, make better arguments, and vote.

  58. The Democrats don’t need to “pack the court.” They can strip the courts of jurisdiction to consider whole classes of federal cases.

    Problem solved.

  59. Toobin is an idiot. Yes, the filibuster is anti-majoritarian. That’s the point! It forces the majority party to pay at least lip service to the concerns and priorities of the minority party. “Democracy” is not supposed to be two wolves and a sheep voting on what’s for dinner.

    Statehood for Puerto Rico is long overdue – except for one critical point. They don’t want it. I’ve lost track of how many times Puerto Rico has put statehood on the ballot and lost. If they want it, good for them. But they probably won’t because of the same tax implications as last time.

    Statehood for DC is just stupid. There’s a reason the Founders moved the Capitol out of any single state. Those reasons are just as valid today. If the residents of DC want representation in the Senate, then give the residential districts back to Maryland. The seat of government, however, needs to stay separate. More reliable for the Democrats and less problematic constitutionally would be to split California into two states.

    Expanding the lower courts is also long overdue. Perhaps we need some sort of rule that ties court size to the census. And if you are really worried about partisanship, make some sort of rule that delays implementation until after the next election.

    Yes, you could expand the size of the Supreme Court. And if you did it for reasons of workload (for example, following a rule that we have as many justices as Districts), few people would object. But the size of the Court has not been changed since about the Civil War – and all those changes were about workload. The last time someone tried to pack the Court for partisan reasons was Roosevelt – and that went down in flames.

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  61. Court packing what a great idea. Once one side does it the other when it power will do it more. 9 judges then keep adding whenever the politics changes to get your majority. And they can keep whining about judges not being partisan.

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