Justice Anthony Kennedy to retire (from SCOTUS)

[Zaune]

I'm trying to think beyond reacting to what the Republicans are doing now, as important as that is, and to spare some thought to what sort of a society we're going to have in twenty years if we win the fight now. I don't want to pursue courses of action which will give us short-term gains, but only give us more problems in the long-run.

And what kind of society are you going to have in twenty years if you don't win the fight now? For all we know Kennedy's successor is going to be someone who'll vote to overturn Brown vs Board of Education or something equally head-up-arse ridiculous, at which point setting a precedent that can be used against the Democrats when they're in office is the least of anyone's problems.

Sometimes you just have to solve the problem in front of you and worry about the long-term consequences later, because that's the only way to ensure there'll be a long term.

[The Romulan Republic]

I'm trying to think beyond reacting to what the Republicans are doing now, as important as that is, and to spare some thought to what sort of a society we're going to have in twenty years if we win the fight now. I don't want to pursue courses of action which will give us short-term gains, but only give us more problems in the long-run.

And what kind of society are you going to have in twenty years if you don't win the fight now? For all we know Kennedy's successor is going to be someone who'll vote to overturn Brown vs Board of Education or something equally head-up-arse ridiculous, at which point setting a precedent that can be used against the Democrats when they're in office is the least of anyone's problems.

I'm less worried about it being used against the Democrats an election cycle or two down the road, than I am about it discrediting the idea of an independent judiciary, and increasing the number of citizens who feel that their only hope of recourse is to act outside the law.

Sometimes you just have to solve the problem in front of you and worry about the long-term consequences later, because that's the only way to ensure there'll be a long term.

You have to do both, all the time- because if you just demand action, any action, now, without carefully considering those actions or their consequences, you set yourself up for problems you could have avoided.

If you want to convince me of the wisdom of packing the Supreme Court, show me that this solution and this solution alone can counter the Republican manipulation of the Court, or show me that you have considered the negatives of your proposal and how they might be mitigated, rather than just repeating "Its already broken" with the implied "So it doesn't matter if we break it more".

I'm trying to think beyond reacting to what the Republicans are doing now, as important as that is, and to spare some thought to what sort of a society we're going to have in twenty years if we win the fight now. I don't want to pursue courses of action which will give us short-term gains, but only give us more problems in the long-run.

The World is going to be a vastly different place in 20 years that trying to make plans that far in advance is utterly meaningless. You need to look at the situation as one that needs to be incrementally improved and prioritise the most pressing issues as they arise. Fixing Citizens United would probably go a long way though.

Your argument is "Its impossible to predict the future, therefore there is no reason to ever consider the long-term consequences of our actions?" Seriously?

I repeat: knee-jerk CHANGE, ANY CHANGE, NOW demands, without thought for the alternatives or the consequences, was a big part of how we got into this fucking mess in the first place. And all I'm hearing is "Well, its broke, so might as well take a sledge hammer to it and hope everything works out afterwards." You're not really addressing my concerns except to repeat that the Supreme Court is already dysfunctional or to dismiss the entire concept of considering the long-term ramifications of your actions, which leads me to think that you don't really have a satisfactory answer.

[The Romulan Republic]

I'll also note that packing the Court would not actually remove Trump's Justices, and that they would still be offering judicial opinions and to some extent setting precedent. As to what I would propose:

1. Try to block Trump's new Justice. Lobby any of the relatively sane Republicans and make it clear that the Democratic Party will cut support to Senators who defect on this point (provided they're not up for reelection this year).

2. Failing that, demand his Justices recuse themselves if Mueller/Russia-related stuff comes before the Court.

3. In the event that Trump's election is determined to be fraudulent, or Trump a traitor, remove his Justices as illegitimate, or impeach them on other grounds if possible.

4. If all that fails, then we can still pack the Court. Keep in mind that we can move on step 1 now, step 2 and 3 possibly within the year, and we cannot move on packing the Court until 2021 at the soonest.

[The Jester]

Your argument is "Its impossible to predict the future, therefore there is no reason to ever consider the long-term consequences of our actions?" Seriously?

No. What I said was that it's fruitless trying to solve for 20 years in the future in one-shot and that goals should be incremental instead. Granted, the first step is pretty big increment, but you're also waaaay up shit creek.

I repeat: knee-jerk CHANGE, ANY CHANGE, NOW demands, without thought for the alternatives or the consequences, was a big part of how we got into this fucking mess in the first place.

Errr... You're going to have to elaborate on how you've drawn that conclusion. My recollection of past events was that Garland was a pretty right-wing as far as justices go. Republicans blocked him all the same.

And all I'm hearing is "Well, its broke, so might as well take a sledge hammer to it and hope everything works out afterwards." You're not really addressing my concerns except to repeat that the Supreme Court is already dysfunctional or to dismiss the entire concept of considering the long-term ramifications of your actions, which leads me to think that you don't really have a satisfactory answer.

You're assuming that once a sledge hammer is brought to bear that everyone says, "Jobs done!" and calls in a day. That's not going to happen in any government. As I said, something really needs to be done about Citizens United. You fix that and you curtail a lot of future problems. Fixing gerrymandering would also go a long way.

I can give you some positive goals that would help remedy the situation if you like. What I can't give you a detailed plan of how to perfectly fix the US government for the next 20 years. No one can.

[The Romulan Republic]

Your argument is "Its impossible to predict the future, therefore there is no reason to ever consider the long-term consequences of our actions?" Seriously?

No. What I said was that it's fruitless trying to solve for 20 years in the future in one-shot and that goals should be incremental instead. Granted, the first step is pretty big increment, but you're also waaaay up shit creek.

True, but I would point to other possible solutions that we can try first, before it is even possible for us to try court-packing.

Errr... You're going to have to elaborate on how you've drawn that conclusion. My recollection of past events was that Garland was a pretty right-wing as far as justices go. Republicans blocked him all the same.

I was referring mainly to the "anti-establishment" types who made protest votes for Stein or Trump, and the people who defended Trump because he was "anti-establishment" and would break the status quo.

You're assuming that once a sledge hammer is brought to bear that everyone says, "Jobs done!" and calls in a day. That's not going to happen in any government.

No, but I do think that people have a tendency sometimes to demand action without considering the larger implications.

As I said, something really needs to be done about Citizens United. You fix that and you curtail a lot of future problems. Fixing gerrymandering would also go a long way.

I can give you some positive goals that would help remedy the situation if you like. What I can't give you a detailed plan of how to perfectly fix the US government for the next 20 years. No one can.

I completely agree with this.

[Zaune]

I'll also note that packing the Court would not actually remove Trump's Justices, and that they would still be offering judicial opinions and to some extent setting precedent. As to what I would propose:

1. Try to block Trump's new Justice. Lobby any of the relatively sane Republicans and make it clear that the Democratic Party will cut support to Senators who defect on this point (provided they're not up for reelection this year).

2. Failing that, demand his Justices recuse themselves if Mueller/Russia-related stuff comes before the Court.

3. In the event that Trump's election is determined to be fraudulent, or Trump a traitor, remove his Justices as illegitimate, or impeach them on other grounds if possible.

4. If all that fails, then we can still pack the Court. Keep in mind that we can move on step 1 now, step 2 and 3 possibly within the year, and we cannot move on packing the Court until 2021 at the soonest.

Well, it's worth a try. #2 is probably pissing into the wind given the sort of people Trump would appoint and I have no idea if #3 is even legally possible, but it's worth a try.

Just don't get your hopes up too much.

[The Jester]

True, but I would point to other possible solutions that we can try first, before it is even possible for us to try court-packing.

Sure. I think blocking a nomination is unlikely given the make-up of the senate. But you still try. Maybe you get lucky.

Impeaching appointees is an extreme long-shot. Success would obviously be taken as a positive. But given the difficulty, speed and how far it moves the political needle, I fear it's insufficient.

I was referring mainly to the "anti-establishment" types who made protest votes for Stein or Trump, and the people who defended Trump because he was "anti-establishment" and would break the status quo.

While I understand and share some of the misgivings about the previous US election, I don't think they're relevant to this conversation.

No, but I do think that people have a tendency sometimes to demand action without considering the larger implications.

Sure. But nothing about these demands put you in an unworkable place. You actually have excellent odds of introducing inertia against the pendulum swinging against you.

[bilateralrope]

On the subject of upgrading various US territories to full statehood, I'm thinking that should have been done ages ago purely so the people living there have representation in democracy. I'd say "no taxation without representation", but I don't know if those territories pay Federal taxes.

Okay, fair enough, but how does your approach actually restore balance in the long-run, as opposed to simply entrenching as a norm that the Supreme Court is simply a partisan tool, and that consequently no trust can be placed by the people in the Justice System or the law unless their party is in power? I'm open to being convinced.

The best method I can think of is to expand it to 10 judges. Aim for a 5-5 split between R and D judges. That way the court can't get anything done unless at least one of the judges breaks from their party position.

[houser2112]

On the subject of upgrading various US territories to full statehood, I'm thinking that should have been done ages ago purely so the people living there have representation in democracy. I'd say "no taxation without representation", but I don't know if those territories pay Federal taxes.

It's complicated. They don't pay income tax on internally earned money unless they're US gov't employees. They do pay into Social Security and Medicare, and pay import/export taxes. The Puerto Rican gov't also imposes its own taxes.

As to whether it should have been done ages ago or right now, I don't think there's been an answer to my question upthread, which needs to be answered before we consider yours:

Eight new Democratic senators would be VERY relevant.

Yes, they would, and I would love to see it happen. However, can Congress force a territory to become a state? The only one of those that I've heard inklings of a possibility for statehood is Puerto Rico, and the plebiscites they've conducted on the matter are inconclusive, if not leaning away.

[U.P. Cinnabar]

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The process is actually more involved than that, including, I believe, a referendum, and the formation of a State constitutional convention, but the ultimate authority to create new States rests with Congress.

[Imperial528]

As I recall, territories have to petition Congress for the status of statehood; Congress cannot just declare a territory to be a state, at least the way things have played out historically.

[U.P. Cinnabar]

That's correct. It also has to have at least a half million permanent residents. And convene a convention to draft a State constitution. And, of course, a plebiscite. But, Congress still has the final say.

[houser2112]

That's correct. It also has to have at least a half million permanent residents. And convene a convention to draft a State constitution. And, of course, a plebiscite. But, Congress still has the final say.

Are you sure about that population requirement? The last few states admitted, and their census populations bracketing their time of admission:

Hawaii (1959): 499,794 (1950), 632,772 (1960)
Alaska (1959): 128,643 (1950), 226,167 (1960)
Arizona (1912): 204,354 (1910), 334,162 (1920)
New Mexico (1912): 327,301 (1910), 360,350 (1920)
Oklahoma (1907): 790,391 (1900), 1,657,155 (1910)
Utah (1896): 210,779 (1890), 276,749 (1900)

Only 2 out of the last 6 had that many people.

[U.P. Cinnabar]

I was an order of magnitude too high, houser. My bad.

[The Romulan Republic]

As I recall, territories have to petition Congress for the status of statehood; Congress cannot just declare a territory to be a state, at least the way things have played out historically.

That is correct- IIRC, a new state can be formed, a state can leave the Union, or state boundaries can be redrawn (legally) only with the consent of both the state in question and the Congress.

On the subject of upgrading various US territories to full statehood, I'm thinking that should have been done ages ago purely so the people living there have representation in democracy. I'd say "no taxation without representation", but I don't know if those territories pay Federal taxes.

Okay, fair enough, but how does your approach actually restore balance in the long-run, as opposed to simply entrenching as a norm that the Supreme Court is simply a partisan tool, and that consequently no trust can be placed by the people in the Justice System or the law unless their party is in power? I'm open to being convinced.

The best method I can think of is to expand it to 10 judges. Aim for a 5-5 split between R and D judges. That way the court can't get anything done unless at least one of the judges breaks from their party position.

I actually kind of like that idea. Theoretically, I see the merits in avoiding tie votes, but this would make it harder for one party's hacks to control the court.

[Wild Zontargs]

I actually kind of like that idea. Theoretically, I see the merits in avoiding tie votes, but this would make it harder for one party's hacks to control the court.

If the SC does not overturn due to a tie, this would allow the next-highest court's ruling to stand, correct? That would mean that, if Party A controlled the lower court, all the Party A SC members need to do is hold the line, and (at least in that jurisdiction) they get their way. Rinse and repeat as far down the chain as you want to go. It's a partial solution to the problem, but not a complete one. Whether it's better than the status quo or not, I don't know.

[Zaune]

The only 100% effective solution I can think of is to take partisan politics out of the equation entirely and have some neutral third party like the American Bar Association appoint Supreme Court justices instead of the President or Congress.

[Ralin]

The only 100% effective solution I can think of is to take partisan politics out of the equation entirely and have some neutral third party like the American Bar Association appoint Supreme Court justices instead of the President or Congress.

Which will promptly cease to be a neutral third party organization, assuming it ever was.

Do that and right-wing/religious groups will start sponsoring their members to get juris doctorates en masse just to start stacking the organization with their people for decades down the line.

[MKSheppard]

https://www.washingtonpost.com/politics ... 5135496de7

Hardiman is apparently on Trump's shortlist -- he was #2 for the first vacancy.

[Zaune]

Which will promptly cease to be a neutral third party organization, assuming it ever was.

Do that and right-wing/religious groups will start sponsoring their members to get juris doctorates en masse just to start stacking the organization with their people for decades down the line.

It's too late to edit my previous post, but it seems I was mistaken about how bar associations work in the US (at least at the federal level) as opposed to here in Britain. I was under the impression that the ABA had a role in granting licenses to practice law, and would therefore have at least some ability to self-regulate against that sort of thing.

Not that it's that easy to infiltrate even a voluntary bar association: Law school isn't cheap or easy, and involves at least some mandatory ethics classes, on top of the fact that the fundies and the far-right can't send their kids to an accredited university and keep them in the right kind of ideological echo chamber for the plan to work.

[Ralin]

I was under the impression that the ABA had a role in granting licenses to practice law, and would therefore have at least some ability to self-regulate against that sort of thing.

Some, yeah, but when enough people pass the bar and spend years or decades working as lawyers and eventually getting into positions of authority that'll add up. What're they going to do, start banning members of certain churches?

Not that it's that easy to infiltrate even a voluntary bar association: Law school isn't cheap or easy, and involves at least some mandatory ethics classes, on top of the fact that the fundies and the far-right can't send their kids to an accredited university and keep them in the right kind of ideological echo chamber for the plan to work.

Fundies and the far-right are good at indoctrinating people and they often have a lot of money to throw around. Just look at Fred Phelps. He may have lost his license to practice law, but from what I remember he pushed all or nearly all of his kids to get JDs and that's part of what let them stay in business for so long. Imagine that with a mega-church's funding behind it.

[U.P. Cinnabar]

Phelps' grandkids as well, Ralin.

That crime family's adroit and cynical manipulation of the law allows them to stay a step ahead of their opponents.

[Zaune]

Except the ones who've realised how insane it all is, and/or that Fred Phelps is kind of a shitty father as well as a fundamentalist crackpot, and nope'd the fuck out of there as soon as they can get away with it.

[U.P. Cinnabar]

His eldest son, for example.

[AniThyng]

I'm not sure I'm seeing how the Bar would be any less ideologically partisan than Congress if it had such a role foisted on it given so many politicians are lawyers and I presume so are any supreme court nominees.