SCOTUS under Trump

My hope is that the cloture rule on nominees is killed and is killed by Republicans so that they have no room to complain next time they’re in the minority…hopefully followed by the death of the Senate filibuster generally. The filibuster is anti-majoritarian bullshit, and it’s time for it to die. You shouldn’t have to elect 60 Senators to get anything substantial passed out of Congress.

They are complaining about Garland now because they have an upcoming vote that they are trying to justify. After Gorsuch leaves the news cycle, Democrats will likewise move on to something else.

God I hate politics

It is a fair point. Obama and the democrats completely dropped the ball in a situation that was much more favorable than it is now. Obama went all in on a bet that if he put up a very center left candidate and the republicans didn’t give him the time of day, it would make them look bad. It was one of the largest political blunders in recent days.

Democrats can’t go back in time and grow a spine, so now all they can do is make a token protest to tell voters they are still alive and unlike the republican party, not a rubber stamp for Trump.

It pays off down the road- because you can use it on them, and even use it as an argument to stack the court in response a few years down the road, and then you give the Republicans a choice:

either support constitutional reforms with an amendment, or we’re going to screw you so hard you’ll think what you guys did to us last decade was fair.

I agree with this. I’ve come around to filibustering Gorsuch (not that it matters, McConnell will remove it - that’s a given.) This is going to be the biggest opportunity Democrats have to prove they are worth backing in a fight against the Republicans. Voters are angry now and they want their Senators to do this (whether or not it’s rational is immaterial at this point); if D’s capitulate that’ll just demoralize the base. Democratic voters aren’t going to punish Democrats for standing up to Republicans, quite the opposite in fact - and soft D’s and persuadables have proven they don’t give a crap about SCOTUS (or at least enough of a crap to vote in the numbers necessary to defeat Republicans.)

This does however expose the flaws in our system. In a two party system there should be enough tension within each party to achieve compromise, but that’s gone. Parliamentary systems are typically forced into coalitions which (usually) prevents extremism. Since the filibuster is a procedure and not an actual law, there are no such protections for the minority.

Eventually we’ll have a Constitutional crisis that will force reform. That probably won’t happen for some time - inertia and entrenched power are forces that will not yield easily

We’re already at the point of crisis. It’s just going to take someone completely ruthless to force it. In 2020 , I will vote for the most ruthless Dem who can win.

I wish Hillary would have been electable, I think she would have been that ruthless.

Here’s the argument (linked to timestamp) OA55: More on Gorsuch - Was He Just Unanimously Reversed By the Supreme Court? — Opening Arguments — Overcast

"Our marching orders to this President are not that we aren’t going to confirm anybody. You postponed the Supreme Court nomination by passing a rule that you would conform to the rule of the people. The people sent, at best, a mix message. But they certainly don’t want someone at the very edge (an Originalist/Textualist).

Further Context on Originalism, just a few minutes to get sense of it: OA49: Why Originalists Don’t Belong on the Supreme Court — Opening Arguments — Overcast

tldr: listen to the podcast to hear the case for why being an Originalist is disqualifying. Comparable to self-identifying as a Marxist. It doesn’t mean you aren’t smart or educated, but you are way outside the mainstream.

I mean… that argument could work if we hadn’t had an Originalist on the Court for the last 30 years.

And we’ve had a Textualist for 26 who is still there in Thomas (which I would argue is a worse method since it ignore obvious intent).

If anything based on the few rulings I know about him Gorsuch actually tends toward Textualism (see the whole freezing trucker case).

This is obviously absurd on its face, given that he’s replacing a judge who was an originalist, and is generally regarded as one of the preeminent legal minds of our age.

Provided your frame of reference is “lizard people here to accelerate the demise of the Republic,” sure.

That case, more than anything, really soured me on Gorsuch. He literally is ignoring the clear intent of the law because it doesn’t explicitly and in detail cover this exact situation. It’s absurd. The law clearly was meant to provide protection for the employee, but ‘because he operated the vehicle (to drive away to warmth and safety), the law doesn’t protect him. If he wanted protection he needed to stay and freeze to death’. That is obscene.

And I support fillibustering, despite the ineffictualness, because realistically that battle is lost either way. Politically, with this Republican party, they are going to use any means to remove power from opposition. Whether you lose today, or lose tomorrow, is of little tactical difference.

But this isn’t really about the tactics of legislation today, this is about strategy for tomorrow. There is a large number of people who are pissed about how spineless the Dems have been, how they have not punished intransigence from the GOP. How they have played to the old norms, and been the adult in the room, while the Tea Party smeared shit all over the walls. And the Tea Parry, and GOP more generally, got away with that, and was even rewarded for that. So much of the base is furious over how the Dems are playing rear guard actions, and simply losing and losing. They, we, demand they grow a spine and show they will resist worth a damn. Show they will push for the things we demand rather than capitulate constantly. That they will have the will to push hard when they regain control, and to make efforts at the state level to reverse the trend.

This is what we demand. Because if you constantly give in to the ransomer, if you let the threat yield the same result as the actual usage, then you show yourself to be extraneous. Worthless.

Making noise, standing up now and saying ‘this will not stand’ is the bare minimum of what we ask. A year too late, yes, but if not now, then how can we trust you to do so ever.

It’s what the law says.

A judge’s job is not to rule in favor of “goodness”. It’s to rule in favor of law. Because that’s how the rule of law works.

Once you abandon the law itself, and instead allow it to mean whatever a judge feels like it SHOULD be, then you’ve entered into the realm of tyranny. Then you are dependent upon the hope that the judge feels like you, because it doesn’t really matter what the law itself actually says.

For all of the talk on the left about how Gorsuch rules against the little guy, the reality is that a literalist interpretation of the law is the best protection for the little guy. Because if the law can be bent, then it’s going to always be bent towards the rich and powerful. The only protection the weak have, is the strict interpretation of law.

Not according to the majority of judges on the panel.

In that specific case, and since I listened to a decent portion of the hearing (to give him my own fair assessment) not just that case, here is the problem with that line of thinking. The judiciary does not create law, yes, but they do provide clarity and guidance. That’s why case law is used as precident at all levels, previous rulings are used to provide consistency with interpretation of the laws. A law that is unclear or contradictory can, and should, be struck down by the courts.

But at the same time to demand that laws cover the literal exact situation and edge cases explicitly? That is absurd. It forces laws to be written in ways prone to abuse, loopholes, and beyond a reasonable standard.

It’s applying the weasly standards of marketing speak to law. It’s playing ‘gotcha!’ with the rule of law. ‘hey, the law says that parcel of land is designated for public usage. However it didn’t specify that they couldn’t make the 5 feet of land surrounding that parcel private, and place fences blocking access. So the land is public, but to get it requires you to go through private land you have no legal access to. Yup, totally legit!’

Sorry, but I reject that type of thinking.

But in this case, the issue isn’t that it’s some weird edge case. It’s pretty clear. The law protects a person from operating unsafe equipment. But that isn’t what happened in this case. In this case, the guy unhitched his load and drove his truck away.

Gorsuch wasn’t saying that the company’s actions were right, or moral. Merely that the law didn’t protect operating of company equipment in a manner contradictory to their stated orders. To say otherwise is to make a leap and imagine that the law says something it does not… And while that imagined law may be better than the actual law, that is not the role of judges.

Again, I recognize that this is not a universally held belief, so I accept that you simply disagree. But again I warn you that such a sword can easily cut both ways. Once you abandon the law itself, you are giving justices immense power, and you have no direct control over them as a member of the voting public. In your worldview, the actual law created by the legislature doesn’t really matter.

We could play reducto ad absurdum for both viewpoints. I believe that it is not only permissible, but essential, that the judiciary have some leeway to rule on legislation to weigh on the intent. To demand a narrow and explicit wording justification for everything leads to madness, and much more poorly written laws, as contingencies and clauses are inserted to cover every example. You want poor laws with nonsensical enforcement which is not understood by legislatures themselves because of the detail and complexity, leading to loopholes that the connected or unscrupulous can exploit? Because that gets you there.

There is a wide range between that narrow view, and judiciary wholly invalidating legislature. To claim it is a binary is to make a claim not supported by reality. And, yes, I am avoiding giving an exact value for how much leeway the judicial has, because it is hard to clearly state. But that’s why the tiers of appeals exist, it gives room for redress, and allows us to more finely hone that acceptable balance.

This here. It doesn’t really matter right now if forcing McConnell’s hand on the nuclear option is a good tactical decision or not, because the Democrat senators have to look at it from their constituents’ standpoint (and, by extension, their ability to get re-elected). And those constituents are howling for them to take a principled stand on this. Obama’s pick was blatantly stolen, and they don’t want the GOP to get away with it.

Of course, the GOP has already gotten away with it, but that’s not something that matters to the Democrat voters - they want to see something done. Or at least attempted. Even if the Democrat senators lose in the end, the voters want them to show some spine.

So even if Timex’s predictions about the next nominee come true, that can’t realistically matter to the current Dem senators because if they roll over on Gorsch they won’t be around to oppose the next guy anyway.

TIL that ostensible humans will actually defend the freezing trucker thing.

Legal != Moral or right.

Conflating those two things is the source of your confusion.