Balkinization: Court-Packing Common Sense

Comments:

Nice to see we agree...in part.

Appointing a new justice requires the agreement of two parts of government - the POTUS nomination and the Senate confirmation.

The argument that the Senate has a duty to rubber stamp a POTUS nomination unless the nominee is a criminal or the progressives over at the ABA disapprove of her "competence" is nonsense. If Obama wanted the GOP Senate to confirm his nominee, the POTUS should have nominated someone who would enforce the law as written. I guarantee the GOP Senate would have confirmed a Gorsuch nomination in a heartbeat.

The Senate is also perfectly free to disregard a nomination to wait for imminent election of a new POTUS, who may be more likely offer an agreeable nominee. Neither the Constitution or "fairness" requires the Senate to waste time on hearings for a nominee the body has no intention of confirming.

# posted by

Bart DePalma : 1:08 PM

I'm not sure what this "contrary to constitutional democracy" rule entails.

What major change requires this "winning multiple successive elections by considerable margins" rule? Seems vague. Let's take the New Deal. Major changes there. Some occurred after FDR and the Democrats gained control after one election. Was this a violation of constitutional democracy?

Or, was that a result of a special event? That might be question begging in this context (to the degree one thinks a seat was in effect "stolen" and another came via a corrupt process -- not exactly a normal situation, even beyond Trump himself). Now, I'm sure some will resist the premise there. But, again, there are going to be special situations that warrant great change right away. Mere control of both houses and the presidency isn't the reason offered for the change. That is a strawman, if that is the idea.

Let's focus on judicial changes specifically. What about the Republicans stopping President Andrew Johnson from appointing any justices? What about the Federalist Party (with Republicans responding) expanding the courts near the end of Adams term? Is that okay since they won a few elections? Did the Election of 1800 affect the calculus?

Finally, there is the whole issue of definitions of what "constitutional democracy" writ large. It has been noted that by simple "democracy," the status of the Supreme Court over the last few decades is seriously skewered. Ditto by majority rule in general. Concerns have been cited for years and there has been some major support for some changes. Changes that some argue are necessary to better uphold "constitutional democracy" values.

Maybe "packing" is special there as compared to something else (let's say a jurisdiction change) but don't know the rules here. I saw a form of this with the Affordable Care Act. Apparently, a super-supermajority was required there because the change was too major. At some point, it seems like making rules up.

# posted by

Joe : 1:19 PM

Note: I am not challenging some strategic argument that packing will result in bad tit for tat results or the like. Some law professors are appalled at the idea on its merits etc.

I'm questioning this "constitutional democracy" argument.

# posted by

Joe : 1:23 PM

I don't think there's any constitutional provision for somebody to be temporarily appointed to the Court. Membership, like any judicial position, is for good behavior. I suppose that he could promise to resign after a little while, but the promise wouldn't be enforceable short of impeachment.

And I don't think you can do recess appointments to judicial positions anyway. That's limited to executive branch positions.

# posted by

Brett : 3:19 PM

"The Senate is also perfectly free to disregard a nomination to wait for imminent election of a new POTUS, who may be more likely offer an agreeable nominee. Neither the Constitution or "fairness" requires the Senate to waste time on hearings for a nominee the body has no intention of confirming."

Yeah, but... I'm not that enthusiastic about McConnell's "L'Sénat, c'est moi."

"The Senate" didn't decide to disregard the nomination. McConnell did. And as a general matter I think far, far too much legislative authority has been concentrated in the leadership.

# posted by

Brett : 3:35 PM

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

John Rutledge, appointed by George Washington, was the first of several recess appointments to the Supreme Court. By one count, there was over 300 judicial recess appointments, including ten Supreme Court justices.

# posted by

Joe : 3:40 PM

Republicans have won one popular vote in a presidential election since George H Bush's presidency, yet they have controlled the Supreme Court during that entire period.

# posted by

steve : 4:02 PM

Steve: "Republicans have won one popular vote in a presidential election since George H Bush's presidency, yet they have controlled the Supreme Court during that entire period."

This is why a POTUS should nominate young justices.

BTW, gaining a plurality of the popular vote from a handful of states making up a minority of electoral votes and five bucks will get you a latte at Starbucks.

# posted by

Bart DePalma : 4:21 PM

"If Obama wanted the GOP Senate to confirm his nominee, the POTUS should have nominated someone who would enforce the law as written."

What nonsense, the GOP isn't interested in that at all. They're too busy relying on non-textual doctrines such 'equal dignity of the states,' the 'anti-commandeering rule,' etc.,

# posted by

Mista Whiskas : 4:31 PM

Mr. W:

Elephant POTUSes are the only ones who will nominate judges who generally apply the law as written. I cannot recall the last time a Donkey POTUS did so. An Elephant Senate will routinely confirm such judges.

This does not mean the GOP appointed judge will aways follow the law as written after achieving a lifetime tenure at the top court. See Souter, Kennedy and now Roberts. However, the GOP is the only party who will appoint a Scalia or Gorsuch.

In sharp contrast, Donkey nominees can be relied upon to erase or rewrite the law to rubber stamp or advance progressive policy. "Swing justices" during my lifetime were always GOP nominees joining the progressives to erase or rewrite the law. Always.

# posted by

Bart DePalma : 4:45 PM

This post strikes me as quite weak. Start with the first sentence: "When Court-packing (or Lords-packing in Great Britain) was seriously considered in the past, the proponents had won multiple successive elections by considerable margins."

The Democrats have won 6 of the last 7 presidential elections, several by wide margins (especially given what passes for "wide margin" these days). Since 1968, the Dems have won 7 elections, the Rs 7, yet the Rs have controlled a majority of appointees that entire time. 4 of those R nominees came from a president who resigned in disgrace. 4 more by Rs who lost the popular vote. One seat was stolen. Two other seats are held by persons who were pretty clearly guilty of sexual harassment or worse. So no, there's no democratic legitimacy to the current Court, nor has there been in a very long time.

Then there's the problem of the Senate. If the Senate were representative, you might have a point. In fact it's heavily weighted towards Republicans despite national electorates favoring the Dems over the past 27 years. Under McConnell the Senate simply refused to appoint Dem nominees, but has rammed through R nominees -- most of them extremists -- by overturning Senate norms. Those extremists have made it clear that they will (a) refuse to enforce basic rules of democracy, such that Rs get undeserved seats in the House and in state legislatures; and (b) strike down Dem policy statutes on the flimsiest of pretexts.

Nor is this problem solvable. Over the next 20 years, the over-representation of Rs in the Senate is likely to increase. By 2040, 70% of the US population will reside in just 15 states, leave the Senate potentially controlled 70-30 by 30% of the population.*

The situation now is such that Dems (a) can't appoint judges; (b) are extremely unlikely to control the Senate and the presidency over the next 20 years; and (c) will continue to have policy legislation -- policy approved by the majority of the country -- struck down on grounds both partisan and pretextual.

Rarely in this country's history has there been such justification for reforming the courts.

*It may not be quite that bad in practice, but "not quite that bad" doesn't mean "fair".

# posted by

Mark Field : 4:45 PM

"Elephant POTUSes are the only ones who will nominate judges who generally apply the law as written."

As my specific examples demonstrate, that's just balderdash.

# posted by

Mista Whiskas : 4:53 PM

I think Mark is spot on. Modern day conservatives are akin to the Jacobins. They're playing to win, and not in the 'we're going to try to appeal to more people' way that both parties used to. They're trying to institutionally seal themselves off from democracy. They lost their mind collectively in nominating Trump (this man has been insulting a deceased war hero lately, he has no decorum or dignity) and now the Democrats, rightfully alarmed, are questioning institutions long accepted by both parties. My fear is they will lose their minds in response and then this country will really be in for it...

# posted by

Mista Whiskas : 4:59 PM

Mark:

If they desire to be more than an urban rump party, the Dems could attempt to sell themselves to voters outside of blue megalopolises.

# posted by

Bart DePalma : 4:59 PM

Mr. W:

As your past examples confirmed, no Donkey appointment will find the Constitution or often even Dem enacted laws of Congress will bar a progressive policy.

# posted by

Bart DePalma : 5:03 PM

It's nice to know Bart doesn't consider the Medicaid expansion and/or Breyer and Kagan to be 'progressive' (and btw, the whole coercion doctrine is another atextual one to out on the list).

# posted by

Mista Whiskas : 6:16 PM

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# posted by

Joe : 6:52 PM

Mark Field filled in some details.

I still push back on the basic premise. GM, who might be said to be in the "Never Trump" class, at one point implies some sort of "considerable margins" rule even if one party actually controls the government for multiple elections to put forth major change.

This might have some sort of Burkean value but under our current "constitutional democracy," it is a rule that doesn't exist. There are certain things that requires supermajorities. This isn't one of them. There isn't on top of that a consecutive election rule. Our constitutional democracy has enough checks and balances in place not to put in more. Great Britain has significant differences there.

But, the telling point is that he really doesn't think anything "exceptional" has gone on. Mark has spoken before on how we have gone down a sort of rabbit hole as compared to what "constitutional democracy" demands for quite some time now. This is why some candidates (pushed by popular will to some extent) are raising the possibility of major changes.

Finally, people think something "exceptional" happened with Garland, Kavanaugh and to a somewhat lesser extent Trump/McConnell lower court picks. If people -- and some against court packing don't even mention this (they might note they felt it distasteful, if pressed, with annoyance that you challenged their bona fides) or handwave it. You know, maybe the Dems should -- amused face -- give Garland a symbolic recess appointment or something. Mark makes a good case that things have gone on much longer, but let's say these can be said to be the straws that broke the camel's back.

Again, maybe court packing is a bad idea. But, this post is with respect a tad distasteful.

# posted by

Joe : 7:02 PM

I didn't think that the Democrats wanted to enact a Court-packing statute because they'd won an election. I thought that it was because a justice had been stolen from them. Suppose that, in enacting a Court-packing statute, they stated that the latter was their reason, and that they did not intend to set a precedent for adding justices except in future cases of appointments being stolen.

Of course, there are also arguments for adding justices that have nothing to do with Garland or with having won an election. The appointment and confirmation process might become less political if each President could add two justices without regard to retirements or deaths of sitting justices, with the most senior justices taking emeritus status and filling in instances of recusals by or illness of other justices.

# posted by

Henry : 7:36 PM

Mr. W:

I noted above: "As your past examples confirmed, no Donkey appointment will find the Constitution or often even Dem enacted laws of Congress will bar a progressive policy." Your responsive citation to NFIB v. Sebelius once again confirms my point.

Sebelius's prime example of the Constitution as written barring a progressive policy was Roberts's correct holding in Part III-A that the Commerce Clause did not provide Congress the power to force the people to engage in the commerce of its choosing (buying government designed health insurance). You will notice NONE of the progressive rubber stamps joined in that part of the opinion.

Your reference to progressives Breyer and Kagan joining the Roberts's holding that Obamacare may not empower the bureaucracy to deny current Medicaid funding if states declined to join the new Medicare expansion is unavailing. This Obamacare provision places two progressive policies in opposition to one another. The progressive rubber stamp justices split evenly on this part of the opinion.

# posted by

Bart DePalma : 7:42 PM

Joe's good points remind me of another. If someone is "Never Trump", it seems to me that that must mean something more than removing Trump from the White House. It must, at a minimum, mean *undoing the damage Trump has done*. Without that, Trumpism will continue to afflict the country for a generation. Only by undoing the damage can we pretend to try to return to normal.

# posted by

Mark Field : 9:29 PM

The Medicare expansion was in opposition to Obamacare?

That's laughable lunacy.

The expansion was part of Obamacare and certainly a progressive policy under any sane definition of that term in American politics. And Breyer and Kagan voted to gut it (based on another atextual conservative doctrine). Checkmate.

# posted by

Mista Whiskas : 10:24 PM

The reporting -- and it's always an issue whether to believe it or not -- is that they compromised on Medicaid in order to flip Roberts from throwing out the whole statute.

# posted by

Mark Field : 10:35 PM

It's covered in a new bio of John Roberts.

Hey how about a "Fortas gambit" to get a seat?

https://www.thenation.com/article/impeach-brett-kavanaugh-supreme-court/

# posted by

Joe : 10:52 PM

I think self-imposed "requiring multiple elections" by one party, while other party crush multiple precedent and change political norms is stupid and self-defeating.

Politics is always full of change, sometime sudden and in multiple territory (each time party system change); Treating political norms as Constitutional Law limit ability to respond in such changing situation. Eventually whether "court-packing" is normalized or one time event need to be decided by Future political compromise and norms.

# posted by

PhilippeO : 10:53 PM

I stand corrected on the matter of recess appointments to the judiciary.

"One seat was stolen."

That's the point where the spittle started flying and I stopped taking you seriously.

# posted by

Brett : 5:15 AM

Mr. W: The Medicare expansion was in opposition to Obamacare?

What?

The Obamacare provision in question allowed the bureaucracy to hold current Medicaid funding hostage to expanded Medicaid.

# posted by

Bart DePalma : 9:01 AM

I stopped taking Brett seriously when as an adult, in defense of Trump's campaign in 2016 attacking Mexicans, Brett recalled when he was a child growing up in northern Michigus his complaints in competing with Mexican farm laborers in pulling red radishes.

But Brett's comment on Sen. Maj. Leader Mitch McConnell seems out of step with Brett's past. Hedging?

# posted by

Shag from Brookline : 9:10 AM

"Brett recalled when he was a child growing up in northern Michigan his complaints in competing with Mexican farm laborers in pulling red radishes."

Your memory must be suffering worse than mine. I didn't complain about competing with them, I just noted that that sort of work was a good way to convince somebody they wanted a desk job.

No, not hedging. It's long been my opinion that one of the sources of legislative dysfunction is the way the rules have been gradually gamed to transfer to the leadership all the power that's supposed to be distributed among the members. The enrolled bill doctrine, for instance, where if the leadership say a bill was properly passed, the courts flatly refuse to look at any evidence they're lying. Or 'voice votes' that aren't really votes at all, and often a way to conduct business without a quorum.

If I were given the chance to reform Congress, my first moves would be abolishing voice votes, making every vote a rollcall vote. And secret ballots for leadership elections.

# posted by

Brett : 9:35 AM

Brett, back in your childhood experience pulling red radishes and realizing that you could not compete with Mexican farm laborers you then concluded that a desk job would be best for you? That at least there wouldn't be competition from Mexican farm laborers? It was a mere coincidence that you related this childhood experience during the 2016 campaign at a time when Trump was exhorting his racism regarding Mexicans? One can go back into the archives of this Blog to learn that you also claimed a disability with your hands that limited your ability to pull red radishes at a time when there had been a challenge from a Trump GOP opponent about Mr. Trump's small hands (and what that suggested). I don't know if Brett has a memory problem or is exercising his usual selectivity. My memory can be confirmed in the archives - as can Brett's selectivity.

# posted by

Shag from Brookline : 9:54 AM

"Brett, back in your childhood experience pulling red radishes and realizing that you could not compete with Mexican farm laborers you then concluded that a desk job would be best for you?"

It's got nothing at all to do with Mexican farm laborers, Shag. It's got to do with how unpleasant and poorly paid the work was.

"One can go back into the archives of this Blog to learn that you also claimed a disability with your hands that limited your ability to pull red radishes "

Yeah, you're losing it. Go get evaluated, I hear they have some treatments that can at least slow the progression now.

# posted by

Brett : 10:01 AM

And there's a cure for baldness besides photoshopping? Mere coincidence for the timing of Brett's comment as an adult with Trump's Mexican racism?

# posted by

Shag from Brookline : 10:16 AM

Shag took Brett seriously before 2016? Fake news!

The "enrolled bill doctrine" was accepted by the Supreme Court late in the 19th Century. It realized that it was a question judges could not adequately judge. So, it was in effect a political question. Others trust a few unelected federal officials with more power though.

Making sure we have a recorded vote (which would take time) for every matter especially for someone who likes bottlenecks (that is, multiple ways to delay things) would be practicably unworkable. This might be why even the original Constitution didn't require it.

This might not be the best "first move" but ymmv.

# posted by

Joe : 11:47 AM

I don't mind "enrolled bill" as a default presumption, but the courts taking it as an absolute presumption which is not permitted to be rebutted with evidence?

Takes the power of the legislature, and hands it just to the leadership.

As for every vote being a rollcall vote, it would have been unwieldy at the time the Constitution was adopted, it would be trivially easy today, with electronic voting.

The real obstacle to adopting it is the point of adopting it: Making it impossible to conceal that Congress is holding votes without a quorum present.

# posted by

Brett : 12:08 PM

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# posted by

Joe : 1:16 PM

As for every vote being a rollcall vote, it would have been unwieldy at the time the Constitution was adopted, it would be trivially easy today, with electronic voting.

The number of people voting and issues voting upon greatly expanded as the population and so forth expanded. Right now, using electronic voting, it takes time to vote. People still have to physically vote and 435 people doing so takes time. Even 100 people. There are hundreds [thousands really] of things that would be voted upon. So, no, it is not trivially easy. Thus, there is no such obligation.

I don't mind "enrolled bill" as a default presumption, but the courts taking it as an absolute presumption which is not permitted to be rebutted with evidence?

Yes, following longer practice already in place, the Supreme Court determined that it would not be workable to have lots and lots of votes in dispute in this fashion. In the 1890s.

Political pressures (e.g., just a few dissenters in the legislature in question can flag the problem), the media, advocacy groups and others would provide checks.

# posted by

Joe : 1:18 PM

Brett's closing at 9:35 AM:

"If I were given the chance to reform Congress, my first moves would be abolishing voice votes, making every vote a rollcall vote. And secret ballots for leadership elections."

might require Brett to get elected to Congress where each house makes its rules that Brett wishes to abolish. Perhaps Brett with his engineering skills just might address "Re-engineering Congress." (Does anyone else recall the spate of business books about "Re-engineering [fill in the blank]?) Query: Does Congress need another troll?

# posted by

Shag from Brookline : 1:19 PM

"Right now, using electronic voting, it takes time to vote. People still have to physically vote and 435 people doing so takes time."

Good lord, do you think they have to take turns pressing their little buttons??? A "roll call" vote just means how each individual member voted is recorded, it doesn't require that you call out names and wait for votes.

"Yes, following longer practice already in place, the Supreme Court determined that it would not be workable to have lots and lots of votes in dispute in this fashion. In the 1890s."

Yes, they did, and the result is that you, even as a member of Congress, can go into the court with proof positive that a bill wasn't lawfully enacted, (Demonstrate that the two chambers voted on different versions of the bill, or prove that an absolute majority of the members of one or both chambers were elsewhere at the time the vote was held.) and the judiciary WON'T CARE.

Literally, the leadership of Congress can certify a bill lawfully passed even if you can prove that they're lying, and the courts don't care. That may not bother you, but it bothers a lot of people when they find out.

# posted by

Brett : 1:41 PM

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# posted by

Joe : 2:06 PM

Good lord

"Joe" is okay. No need to call me "lord."

do you think they have to take turns pressing their little buttons??? A "roll call" vote just means how each individual member voted is recorded, it doesn't require that you call out names and wait for votes.

This is confused. First you talk about pressing buttons then you talk about individually calling out names (like they do in the Senate ... "Mr. Akaka" etc.).

Two separate things. They don't call out 435 names each time in the House. They still have to vote. This takes time. It is impractical and unnecessary to do it each and every time.

Anyway, yes, things left to the political processes are not perfect. It is a balance of things. Another thing is the sanctity of the jury booth. Even invading it to flag racism greatly divided the Supreme Court recently since it would be very complicated in practice and can interfere with how juries operate.

Along with some compelling case -- which yet again can be flagged any number of ways as compared to a lawsuit that will can be decided years later -- there will be loads of other closer cases that will not be suitable for judicial review. And, "compelling" will often be in the eye of the beholder. So, for around 130 years, following a principle that goes back even further, the rule is in place.

# posted by

Joe : 2:08 PM

It takes time for roll call votes because they're operating without a quorum,, and when they do a roll call vote they can't keep it off the record, so they're dragging things out long enough to bring in enough people to make quorum.

I've watched enough CSPAN to be familiar with this, and I'm sure you have, too. It's why they don't permit the camera to pan the chamber during voice votes: You'd see that there's practically nobody present, sometimes as few as three people, so the votes are legally void even if they were real votes. Which they aren't, of course.

The whole point of this proposal is to stop them from doing this, force them to actually obey the Constitutional command that Congress not conduct business without a quorum present.

If a quorum is really present, a vote can be held electronically in a matter of seconds.

# posted by

Brett : 2:30 PM

South Carolina should consider electing Brett to Congress to reform it. As a member of the House, Brett could pair with Sen. Lindsey Graham (Cracker, SCar) not only for reform but also to bow to Trump.

# posted by

Shag from Brookline : 2:53 PM

Please, the last time I ran for state rep, I had nightmares where I won. Terrible nightmares where I'd wake up screaming. I'm not really suited for that sort of thing.

# posted by

Brett : 2:58 PM

Perhaps South Carolina voters would have had nightmares had Brett won, possibly determining how they voted. Query: How many times did Brett run for state rep?

# posted by

Shag from Brookline : 3:24 PM

The Witch Hunter General has reportedly sent his report to Justice. If the report had any evidence Trump committed an actual crime, the many Democrats on the team would have leaked it to the Democrat party and media LONG before now. The only real question is whether the report will play it straight based on the lack of evidence or play the innuendo.

For a good example of the latter, a pissed off Sen. Blumenthal (D-CN) was just on public radio talking about searching for evidence implied by the lack of evidence.

Swamp scum.

# posted by

Bart DePalma : 7:42 PM

If one were to accept Bart's laughable framing of the Medicaid expansion, he's still hoisted firmly upon his own petard, as two 'progressive' justices voted the other way.

I increasingly see that BartBuster was much more correct in how to deal with this disingenuous propagandist.

# posted by

Mista Whiskas : 7:55 PM

I actually agree with Brett, as I have before at times, about the leadership issue.

# posted by

Mista Whiskas : 8:00 PM

"The Witch Hunter General has reportedly sent his report to Justice"

Let's review the results *before release* of the *Witch Hunter General* (notice that today's conservatives *cannot help but talk in the hyperbolic language of Limbaugh-esque conservative demagogues?).

Trump's *campaign manager* was a widely known agent of a hostile foreign power. He's been convicted of actions related to these actions.

Trump's NSA chief was a foreign agent, and has been convicted of lying about it.

Trump's personal attorney has been convicted of crimes related to his campaign.

Several other significant Trump advisors have been convicted and/or shown to be palpably lying about their foreign contacts.

Now, imagine, just imagine, if there was a scintilla of that about a Democrat of note. Bart and Brett would be rending their garments and gnashing their teeth to no end.

But they're not here. BECAUSE THEY HAVE NO ACTUAL PRINCIPLES apart from what I guess are their paranoid, racist concerns.

# posted by

Mista Whiskas : 8:06 PM

Mr. W. has gone a long way.

It takes time for hundreds of people to do something. This includes wandering to their desk and so forth. That doesn't change the bottom line.

There are various ways to enforce constitutional commands and for those who care about such things relying on the courts often was rarely how it was done. If there was actually a strong demand for more limits here, I cited multiple ways to pressure them to do so.

The breadth of the problem as well is with respect debatable.

# posted by

Joe : 8:07 PM

Let's also pause to consider this:

Mueller is a long time *REGISTERED REPUBLICAN.* Initially appointed under then-Bart hero George W to head the FBI.

I want you to just consider, consider, if a prominent Democrat under a plausible scandal was investigated under a team led by a long time Democratic official. Just imagine the caterwauling by people like Bart and Brett.

But here, where the investigation of a GOP President is in the hands of a LONG TIME GOP OPERATIVE, they are ACTUALLY CRYING UNFAIRNESS.

We haven't jumped the shark here, we've repeatedly leapfrogged them. Movement conservatives like Bart and Brett are nuts/evil, they don't deserve to be debated, but ridiculed.

# posted by

Mista Whiskas : 8:13 PM

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# posted by

Joe : 8:14 PM

As noted by a sometime contributor to this blog -- Marty Lederman -- over at Just Security, there is also a counterintelligence report to the intel committees forthcoming.

This is a mixed criminal/counterintelligence investigation.

As with the case with let's say "enhanced interrogations" during the Bush Administration, where indictments weren't the only way that led to important safeguards and airing out of what happened. This led to changes in policy and also to some degree political consequences.

Not that we know what's in the report transmitted today at any rate. Mr. W. also has done some good work summarizing what came down so far, including things with express involvement of "Individual No. 1."

# posted by

Joe : 8:16 PM

Joe,

In the past I'd be considered a relatively conservative guy. I supported immigration limits way before it was 'cool,' but I thought so under the idea that while there's nothing wrong with any potential immigrants, that the process should be better controlled. I love tax cuts, my family does well and I'm never happy paying more taxes. I find many arguments these days against affirmative action to be silly or worse, but I oppose it and long have.

But Bart and Brett are exemplary that the conservative has lost it's mind. They elect a troglodyte like Trump. They endorse Jacobin legal and political policy. Most importantly, they stick to no real principle: they are state's rights unless the state wants gun control, affirmative action, campaign finance reform...They are for 'the Constitution as written' unless it's about the 'equal dignity of the states,' the 'anti-commandeering rule' or other atextual nonsense. They are for the 9th's 'unemuerated' rights if they apply to nonsense like 'presumption of liberty' but not if they are 'rooted in the nation's history and traditions' (that last phrase can be considered a once coherent definition of 'conservatism' in itself).

I see a lot of faults in today's liberals. But today's conservatives? They are the Jacobins of this age, who have traded Hayek and Burke for Hannity and Limbaugh. This is the enemy of all that is decent and principled.

# posted by

Mista Whiskas : 8:27 PM

Mr. W:

(1) You can think Trump is Satan on Earth and launching a criminal investigation against him without evidence of a crime for the purpose of destroying a political enemy is still and will always be wrong.

(2) Partisan affiliation means less in this corruption than does then interests of the establishment swamp.

Comey was allegedly a "registered Republican" when he conspired with the Obama Justice Department to whitewash evidence of Democrat and establishment swamp creature Clinton's crimes.

McCain was a senior GOP leader when he actively cooperated with the Clinton campaign to disseminate the pack of oppo research slanders known as the Russia Dossier against the outsider Trump.

Mueller has a long and ugly history of abusing his power to destroy suspects he has targeted. See the innocent man he falsely accused of making an anthrax attack. Now see the multiple victims of his perjury traps he targeted for no other reason than they were Friends of Donald.

(3) The new attorney general needs to appoint a special prosecutor to conduct a criminal investigation of this abuse of power or otherwise it will become Democrat SOP soon followed by the GOP. Any "relatively conservative guy" would demand no less.

# posted by

Bart DePalma : 10:52 PM

Lol. If we were in a Clinton administration where her: 1. Campaign manager was guilty of numerous crimes while acting as a Russian stooge 2. Her NSA chief was guilty of lying of his activity as a foreign agent 3. Her attorney general had perjured himself about his foreign entanglements 4. Several campaign advisors had lied about their foreign entanglements, etc., etc., Bart's and Brett's would be rending their garments and gnashing their teeth to no end.

# posted by

Mista Whiskas : 5:44 AM

And I didn't even mention Cohen! How many right wing books would be spun off a Democratic equivalent of that!

# posted by

Mista Whiskas : 5:46 AM

SPAM's rant at 10:52 PM includes this:

"(3) The new attorney general needs to appoint a special prosecutor to conduct a criminal investigation of this abuse of power or otherwise it will become Democrat SOP soon followed by the GOP. Any 'relatively conservative guy' would demand no less."

First of all, neither SPAM nor Brett is a relatively conservative guy. They are anarcho libertarians.

Second, and most importantly, SPAM ignores the circumstances under which Mueller was appointed as Special Counsel. It came about early in Trump's presidency with GOP control of both the Senate and the House. The role of Russia in the 2016 election was noted during the 2016 campaign by America's intelligence agencies. Once Trump was inaugurated and made appointments to these agencies, there remained concern with Russia's role and recognizing that Russia attempted to interfere in 2018 elections. We all know about Trump's love affair with Putin. We know that Trump while campaigning in 2016 continued his pursuit for a Trump tower in Moscow needing Kremlin approval and offering the penthouse to Putin, etc. The counter-intelligence aspect of Mueller's investigations is most important for our national security looking not only back to 2016 and 2018 but ahead to 2020. But SPAM and Brett might not care, so long as Russia can help Trump.

# posted by

Shag from Brookline : 8:34 AM

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# posted by

Bart DePalma : 8:52 AM

Mr. W:

Under your guilt by association theory, are you arguing we should have asigned a special prosecutor to invstigate or had Congress impeach Obama for Clinton’s crimes as Sec State?

Rather conservtive of you.

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Bart DePalma : 8:54 AM

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Bart DePalma : 9:11 AM

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Bart DePalma : 9:13 AM

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# posted by

Bart DePalma : 9:15 AM

Shag:

None of your revisionist history justifies the Democrats weaponization of law enforcement against Trump.

Russia has interefered with our political system for decades. Nothing new here.

The Obama FBI and Justice Department initiated the witch hunt without evidence soon after it was apparent Trump would win the GOP nomination in June 2016.

The pretext was a seried of oppo research slanders provided by Team Clinton with the help of McCain.

The low level perps running this witch hunt have provided Congress and third party FOIA requestors like Judicial Watch with stacks of evidence suggesting the witch hunt committed the crimes of denial of honest services, perjury to the FISA court, illegal surveillance and prejury to Congress and obstruction of justice. Because one of the victims is currently POTUS, we need a special prosecutor to bring the perps to justice and stop the political weaponization of our justice system.

# posted by

Bart DePalma : 9:16 AM

"The Obama FBI and Justice Department initiated the witch hunt without evidence soon after it was apparent Trump would win the GOP nomination in June 2016."

This is ridiculous and demonstrably false. When it was determined that Russia was linked to the theft of DNC emails of course the FBI had a duty to investigate this. It's borderline treasonous to suggest otherwise.

Of course the mere fact that Trump's campaign manager was a widely known Kremlin stooge, coupled with his unusually kid gloves handling of Russia, would warrant an investigation.

"The pretext was a seried of oppo research slanders provided by Team Clinton with the help of McCain."

The research was done by an intelligence expert. Alarmed at what he found he gave it to McCain, who, being a patriot rather than a partisan, correctly forwarded it to the authorities. And while some of it may or may not be confirmed, guess what? Some of it was (e.g., Papadopoulos).

Bart just chooses to be a partisan over a patriot. Shameful.

# posted by

Mista Whiskas : 10:47 AM

SPAM gets the record for consecutive comments deleted. It's time to put SPAM out to Rep. Nunes' (R-CA) pasture.

And SPAM doesn't seem to know the meaning of "revisionist" or its application.

Notice that SPAM employs, three times, "witch hunt," as he emulates Trump in lockstep after SPAM's Cruz Canadacy claims that candidate Trump was a fascist, over and over and over again. SPAM has the principles of Sen. Lindsey Graham (Cracker, SCar) when it comes to Trump.

Let's compare the heroics of SPAM in the military compared to John McCain.

# posted by

Shag from Brookline : 10:52 AM

Mr. W:

The allegation without physical evidence of the Dem computers that Russia hacked Team Clinton and published its dirty laundry NEVER had anything to do with Trump. It is fully false to suggest otherwise.

# posted by

Bart DePalma : 11:05 AM

Shag;

Given Obama’s socialist history, we can use analogies to Maduro’s persecutions of the political opposition or the Chinese Cultural Revolution if you prefer.

# posted by

Bart DePalma : 11:08 AM

Shag, of course he uses all the buzzwords (witch hunt, weaponization, etc). He's a partisan ideologue propagandist. It's what they do.

# posted by

Mista Whiskas : 11:28 AM

And there's plenty of evidence regarding the DNC theft and Russia. And we now know that Trump's operatives have been lying about their contacts with the leakers of the theft.

# posted by

Mista Whiskas : 11:29 AM

Mr. W:

You are free to note all the physical evidence in the possession of the FBI/Justice demonstrating the Russians hacked and extracted the Democrat dirty laundry which Wikileaks published during the 2016 campaign.

Not allegations of physical evidence by Team Cinton’s Ukrainian IT contractor. Actual physical evidence in the possession of the government which can be offered in a court of law to prove the Mueller indictment against the Russians.

# posted by

Bart DePalma : 11:39 AM

https://arstechnica.com/information-technology/2016/06/guccifer-leak-of-dnc-trump-research-has-a-russians-fingerprints-on-it/

Lets remember that several intelligence agencies, including from other nations, have determined this happened with much higher confidence than, say, they had about the intelligence that Bart et al., enthusiastically believed re the Iraq War.

# posted by

Mista Whiskas : 12:07 PM

Since, as is usual with pieces from this writer, we are moving past the original comment generally speaking, I feel okay to provide an extended aside. It has a bit of a point.

Justice Thomas asked a question in an oral argument earlier this week, the first time he did so in three years. I mentioned elsewhere that my opinion that he asked good questions over the years, "often" on race issues. I clarified that I meant that of the limited times he asked questions (such as a sparsely used pinch hitter), he often in that subset did so. I think he should ask more questions partially for that reason, partially since it gives a chance for advocates to address his atypical views. Also, him not asking questions EVER comes off as rude to some people. It's an unnecessary affront even if he doesn't intend it.

(A discussion of the case and a link to an article that includes his questions, minus the latest, making the case can be found here: https://highschoolscotus.wordpress.com/2019/03/21/wednesday-march-20-2018/ The blog is an impressive coverage of the Supreme Court by some high school students.*)

I'm not a fan of Thomas' jurisprudence generally and opposed his confirmation on grounds of inexperience alone (the sexual harassment issue added insult; public integrity is something basic to members of the Supreme Court) and didn't think the question posed this time that good. But, that doesn't change my basic sentiment.

This is all said because when I did so someone strongly refuted my comment on Twitter. I noted that I didn't support Thomas generally, but did in this specific way.

Okay. Well, what are examples of his horrible questioning? The person pointed to the questions he posed that very day. That doesn't really refute my comment. I get the idea the person had no actual knowledge of his questioning (I alluded to questions Thomas posed in cases involving the KKK and public usage of crosses as an example.) The person then attacked my use of "often," noting in effect it would be curious if anyone else in the universe would use the word that way.

I understand the reason people are loathe to admit someone like Thomas is right even when he says that Bryce Harper is a dweeb, but at some point this sort of thing is tiresome. After repeatedly going back and forth with the person, harping on my use of "often" led to a "mute" from me.

====

* Some people, including some lawyers, ridicule oral arguments as pointless. Besides serving as the one time the general public gets a chance to listen (or see, in courts that deign to videotape) to the judges, there are other values to such arguments. Repeatedly, judges themselves have said so. I just read an old essay [found in a version of "Judges on Judging") by Justice John Harlan II saying so as well.

At some point, I take them at their word -- they find oral arguments helpful. To toss it out there, one Supreme Court journalist suggested Justice Breyer might ask some questions with Justice Thomas in mind, the two sitting next to each other on the bench and at times chatting during oral arguments (see the High School SCOTUS interview with Chris Geidner).

# posted by

Joe : 12:13 PM

Mr. W:

From your blog post.: All three pieces of evidence were teased out of the documents and noted on Twitter by an independent security researcher who goes by the handle PwnAllTheThings.

Interesting circumstantial evidence offered by a private third party, but completely non-responsive to my request for "all the physical evidence in the possession of the FBI/Justice demonstrating the Russians hacked and extracted the Democrat dirty laundry which Wikileaks published during the 2016 campaign."

If you were honest, you would admit you cannot do so, most likely because the Democrats never provided it and almost certainly have destroyed it.

# posted by

Bart DePalma : 12:28 PM