Ruth Ginsburg dies

[Ralin]

I don't really buy it. Republican voters have proven hateful and self-destructive even in the face of direct personal consequences.

[Tribble]

I don't really buy it. Republican voters have proven hateful and self-destructive even in the face of direct personal consequences.

100%

Republicans and their supporters are already at war with Democrats. And anything goes in war, with the victor getting the spoils and writing the history books. Trumps base (aka the majority of Republicans) will already support him up into and including jailing his political opponents and setting himself up as president for life. They literally don’t care how he stacks the courts as long as he gets the job done.

[Rogue 9]

A few years ago I saw an opinion piece by someone who thought that overturning Roe v. Wade would be bad for the Republicans. Basically, the writer was saying that there are a decent chunk of voters who are pro abortion, but still vote Republican because they think that Roe v. Wade means abortions can't be touched and are they ignore the issue. But if Roe v. Wade gets overturned, suddenly abortion becomes an issue in those voters minds.

Not sure how true it is, but since Democrats get to question any nominee, making the nominees stance on abortion clear to everyone seems a good tactic.

More to the point, there are a significant number of voters (chiefly the Catholic Republican bloc) that votes Republican in an effort to have abortion outlawed, but agree with essentially none of their other positions, viewing abortion as an overriding issue. Take away that wedge issue, and that part of the Republican coalition simply falls apart.

[Gandalf]

More to the point, there are a significant number of voters (chiefly the Catholic Republican bloc) that votes Republican in an effort to have abortion outlawed, but agree with essentially none of their other positions, viewing abortion as an overriding issue. Take away that wedge issue, and that part of the Republican coalition simply falls apart.

I wonder if someone in Republican HQ has a plan for that sort of eventuality, because surely someone would have worked that out. Republicans may have some questionable office holders, but the people in the backrooms of the party should be pretty sharp.

Would they try to move the goalposts on abortions, come up with another issue, or some whole other thing?

[Rogue 9]

More to the point, there are a significant number of voters (chiefly the Catholic Republican bloc) that votes Republican in an effort to have abortion outlawed, but agree with essentially none of their other positions, viewing abortion as an overriding issue. Take away that wedge issue, and that part of the Republican coalition simply falls apart.

I wonder if someone in Republican HQ has a plan for that sort of eventuality, because surely someone would have worked that out. Republicans may have some questionable office holders, but the people in the backrooms of the party should be pretty sharp.

Would they try to move the goalposts on abortions, come up with another issue, or some whole other thing?

The strategists who initially came up with using Roe v. Wade as a wedge used it to replace the lost wedge issue of segregation. NPR had a pretty good story about it last year. I'm fairly certain that the party bosses never actually intended to make a serious attempt to undo the case, but nobody told the TEA Party that (for obvious reasons) and the 2010 primary revolt put the inmates largely in charge of the asylum. Whether the RNC has a plan or not, the people actually in elected office are forging ahead anyway.

[Ralin]

More to the point, there are a significant number of voters (chiefly the Catholic Republican bloc) that votes Republican in an effort to have abortion outlawed, but agree with essentially none of their other positions, viewing abortion as an overriding issue. Take away that wedge issue, and that part of the Republican coalition simply falls apart.

I wonder if someone in Republican HQ has a plan for that sort of eventuality, because surely someone would have worked that out. Republicans may have some questionable office holders, but the people in the backrooms of the party should be pretty sharp.

Would they try to move the goalposts on abortions, come up with another issue, or some whole other thing?

I don't see that they need to, assuming by 'take away the wedge issue' you mean 'actually overturn Roe vs Wade.' The anti-abortion plank could transition pretty seamlessly to keeping a new Roe vs Wade decision from happening and other anti-abortion measures (overturning Roe vs Wade just makes it possible for state and federal laws to ban abortion, it doesn't get rid of abortion services). Wouldn't even call that moving the goalposts. Or am I missing something?

[Elfdart]

It's funny seeing so many think it's a "gotcha" moment pointing out Republican hypocrisy on nominating in an election year. Do people expect it to work, as though Republicans are going to go "Oh right, we did say that" and then wait a while?

Impeachement isn't a Biden decison if he wins, its an action by Congress.

Evidently I was wildly misinformed on the subject. Thanks for the help.

When a generation of Americans learned about politics from Sorkin's West Wing, this kind of fatuous thinking is to be expected.

[Gandalf]

When a generation of Americans learned about politics from Sorkin's West Wing, this kind of fatuous thinking is to be expected.

Don't forget The Daily Show.

[Coop D'etat]

It's funny seeing so many think it's a "gotcha" moment pointing out Republican hypocrisy on nominating in an election year. Do people expect it to work, as though Republicans are going to go "Oh right, we did say that" and then wait a while?

Impeachement isn't a Biden decison if he wins, its an action by Congress.

Evidently I was wildly misinformed on the subject. Thanks for the help.

When a generation of Americans learned about politics from Sorkin's West Wing, this kind of fatuous thinking is to be expected.

These days there's more people talking shit about the West Wing who very clearly never watched it or weren't paying attention to what was going on if they had, than who got their political education on from it.

[Elfdart]

If the Democrats get the Senate and the presidency both, what they should do is go full nuclear and eliminate the filibuster in Senate, increase the size of SCOTUS to 13 justices and grant statehood to both Washington DC and Puerto Rico. There is absolutely zero incentive to give a shit about what Republicans would say about that, since they are going to lie, slander and make baseless accusations anyway regardless of any attempt to play nice with them. The only thing they understand is a direct application of force.

I found this article interesting -especially this part:

So how might Democrats fight back this time around? To answer that question, it’s important to understand the mechanics of the contingent election—which can be triggered by any scenario in which a majority is not reached, such as unresolved disputes over individual electoral slates. In a contingent election, the House votes on the next president by a majority vote of state delegations. This means Alaska’s one member would get one vote, all of the members from Alabama would combine to get one vote, all of the members from Arizona would combine to get one vote, and so on. A candidate would need to win 26 of 50 state delegations to be declared president. (In the Senate, meanwhile, each senator would vote respectively on the next vice president, with 51 votes necessary for victory.)

Currently, Republicans control 26 state delegations and are favored by Sabato’s site to retain that advantage. Democrats currently control 22, and the remaining two are essentially tied. Democrats need to win four additional House delegations to make Biden president in the case of a 269–269 Electoral College tie, but would need just two delegations to prevent Trump from becoming president if Pennsylvania—with a 9–9 split in the current delegation—remains tied. To get to 26 delegations after this election, Democrats would need to retain competitive seats in Iowa and Minnesota, and sweep a number of potentially competitive seats in four states from a pool of Florida, North Carolina, Pennsylvania, Michigan, Montana, Texas, and maybe Alaska.

That math might suggest an advantage to Trump. But there are many other variables. What if, for example, Joe Biden has won the popular vote by a significant amount, while failing to secure an Electoral College majority? Or what if the disputes over the vote count extend to congressional races that might tip state delegations one way or the other?

It may sound far-fetched, but none of this is outside the realm of possibility. According to Nate Silver, Trump would still have a 1-in-10 shot of winning the Electoral College even if the popular vote went to Biden by a 4- to 5-point margin. This means that Trump could lose by more votes than Mitt Romney lost by in 2012 and still have a shot at the presidency. Who would have the greater claim to popular legitimacy then, particularly in the case of an Electoral College tie?

Popular legitimacy, of course, doesn’t matter if Republicans control the state delegations and decide to vote uniformly to defend Trump, as they did during the impeachment saga in the House last year. But if things reach the point of a contingent election, Nancy Pelosi—should she retain her speakership—would likely have a few cards to play. Specifically, her House majority could vote not to seat declared winners in contested elections that may have been marred by voter suppression, bad vote counts, corrupted court decisions from a freshly packed Supreme Court, or even gerrymandering, thus tipping the balance of the House delegations to the Democrats and the presidency to Biden.

This scenario could require the type of procedural and parliamentary maneuvers that conservatives and some pundits might decry as beyond the pale, but which figures like Republican Senate Majority Leader Mitch McConnell and Attorney General William Barr have used and would use without batting an eye. Given the damage that Trump has already done to democratic institutions, Democrats might feel justified to do everything in their power to prevent Trump from winning a contested election. This is particularly true if the vote itself has been marred by suppression and outright miscounts.


Suppose the delegation count is 24–24, with Republicans leading slightly in disputed tipping point races in two remaining states. Here is where Pelosi could step in and show herself to be the Democrats’ answer to McConnell. Article 1, Section 5 of the Constitution gives the House majority the authority to “judge” any contested elections. Historically, the House has used that power to refuse to seat new members in contested races pending an investigation or a new vote. In 2018, for example, the House refused to seat the Republican candidate in North Carolina’s 9th District after a GOP operative was caught committing fraud to swing the race.

If there’s a challenge in any decisive House district—say, over issues with mail-in ballots not being counted, or disparities in votes being disqualified for signature mismatch, or ballots getting lost in the mail—the House could simply vote not to seat the candidate claiming victory pending an inquiry, even if a given state certifies that victory.

“I think that there is an enormous amount of precedent for not seating members,” Boies said, particularly when their election is still being contested in court. Prior to representing Gore at the Supreme Court, Boies represented California Rep. Jane Harman in 1995 when the Republican House majority refused to seat her pending a House inquiry after she was certified by the state to have won her race by 812 votes. “There are a number of other precedents where if there is any kind of a plausible challenge, the House will refuse to seat,” Boies said. “…It would be particularly significant this time because of the consequences, but it would not be anything I view out of the ordinary for the House to do that.”

Democrats will probably have plenty of grounds to choose from upon which to plausibly contest close congressional races this fall. Because of the increased use of mail-in balloting, hundreds of thousands of ballots are likely to be rejected for arbitrary technical reasons. During this spring and summer’s primaries alone, analysis by the Washington Post and NPR showed that at least half a million ballots were rejected for a variety of reasons, disproportionately affecting people of color and young voters. “More than 534,000 mail ballots were rejected during primaries across 23 states this year—nearly a quarter in key battlegrounds for the fall—illustrating how missed delivery deadlines, inadvertent mistakes and uneven enforcement of the rules could disenfranchise voters and affect the outcome of the presidential election,” the Post reported. The same will be true in the fall for any number of potentially critical House seats. In North Carolina’s early vote count, for instance, Black voters’ ballots are already being rejected at more than four times the rate as white voters’. That state could potentially face multiple contested congressional races that could threaten the Republican delegation majority.

Even if there is not a plausible electoral challenge in a key congressional seat in a key delegation under the contingent election scenario, there are other potential challenges the House might raise. These maneuvers would perhaps be even more controversial.

As one example, former 9/11 Commission vice chairman and Democratic Rep. Lee Hamilton, former Secretary of Defense and Republican Sen. William S. Cohen, and scholar Alton Frye have argued that the House majority should “refuse to seat a state delegation achieved through excessive gerrymandering,” because those gerrymanders have begun to place the “integrity of the House … in doubt.” Indeed, the Wisconsin delegation has been so gerrymandered that it is controlled by Republicans 5–3 even though Democrats won the statewide House vote by 7.5 points in 2018. Say Democrats win the statewide House margin by 10 points in 2020, but Republicans retain control because of extreme partisan gerrymandering and are set to tip the election in a contingent election to Trump despite a landslide against them and him in the state. How legitimate would that result be?

“I think that you are balancing a perception that could divide the country more than it is already against a need to preserve the integrity of the voting process and a desire to elect Biden,” Boies said. “If it was 55 to 45 [in Wisconsin], I would make that a strong case that partisan gerrymandering was depriving people of the right to have their votes counted.”

As Boies, Hamilton, Cohen, and Frye all noted, when the Supreme Court ruled against invalidating North Carolina’s gerrymandered maps in last year’s Rucho v. Common Cause, it said explicitly that gerrymandering presented “political questions beyond the reach of the federal courts.” If it were truly a political question beyond the reach of the federal courts, then the political branch of Congress could choose to remedy it by refusing to seat a heavily gerrymandered delegation until state officials created maps that reflected the will of their voters. “I think it is not unreasonable for the House to say we’re not going to seat these people until this problem is corrected,” Boies said.

If Democrats invalidated a delegation, it would certainly be controversial. “Because it would come in the context of a presidential election,” Boies said, “I think there is a danger that it, just like Bush v. Gore, is perceived as a branch of government using its power to determine the election in a way that … was not and is not common to the Constitution.” But a Bush v. Gore outcome may be coming one way or the other, and Democrats might have to decide if they’re willing to take things as far as Republicans have already shown themselves willing to go.

Khanna—part of the 53-member California House delegation that counts the same as Wyoming’s single member in a contingent election scenario—declined to discuss specific hypotheticals for how his side might fight, but said he would need to “look into the law” and that he would “consult people like Lee Hamilton and David Boies,” who have already endorsed some forms of constitutional hardball. Ultimately, after years of Republicans changing the rules on them, Democrats may have little choice but to throw out the old rulebook.

The beauty of this is that the courts would have no say in the matter.

I'm not going to hold my breath waiting for this or court-packing to happen even if the Dems do win a clean sweep. It's like daydreaming about how one of your co-workers could buy you that new car you always wanted if they win the Powerball Lottery. But they're not really that much of a friend, they didn't buy any lottery tickets before, and there's no reason to think they'll play anytime soon. My guess is that if Biden wins, there will be some kind of corrupt bargain where Cheeto Mussolini is allowed to skate on all his crimes provided he goes relatively quietly. I also get the feeling that if it is curtains for Trump, he'll resign before the Inauguration and get pardoned by President-for-a-day Mike Pence.

[bilateralrope]

My guess is that if Biden wins, there will be some kind of corrupt bargain where Cheeto Mussolini is allowed to skate on all his crimes provided he goes relatively quietly. I also get the feeling that if it is curtains for Trump, he'll resign before the Inauguration and get pardoned by President-for-a-day Mike Pence.

Would such a deal have any influence over state charges ?

Because a pardon from Pence would only save Trump from federal charges, and there is at least one state investigation into Trump.

What I'm expecting is that Trump will try to flee to a non-extradition country.

[Edi]

Elfdart, you are likely right in your assessment.

The Democrats need to grow a spine and play just as dirty as the Republicans and the refusal to seat gerrymandered Republican controlled states is something that they absolutely should do if Republicans show any signs of doing what the recent Atlantic article outlined, but I'm afraid that they'll just roll over like they so often have.

[Zaune]

Would such a deal have any influence over state charges ?

Because a pardon from Pence would only save Trump from federal charges, and there is at least one state investigation into Trump.

What I'm expecting is that Trump will try to flee to a non-extradition country.

It might honestly be better to offer Trump some sort of immunity deal in return for him promising not to stir up trouble if the election result doesn't go his way, because if he tells the militiabros and their sympathisers in law-enforcement to make like Earl Turner they'll do it, and the Biden Administration already has a godawful mess to clean up without adding that to the problem.

The problem, of course, is that it wouldn't even occur to Trump that there would be any consequences for breaking his word. Or for bragging about how the Democrats were so afraid of the valiant patriotic Minutemen that they offered to drop their obviously politically motivated charges blah blah blah.

[Edi]

Do you really expect he would honor anything he said? If you do, I have some prime tropical oceanfront real estate in Afghanistan to sell you.

He won't, and he should therefore be dealt with accordingly. It does not matter if the Reich Wing Nazis whine about it. They are frothing at the mouth for law and order and if Trump loses, then give them what they have asked for, ruthlessly.

[Zaune]

Do you really expect he would honor anything he said? If you do, I have some prime tropical oceanfront real estate in Afghanistan to sell you.

He won't, and he should therefore be dealt with accordingly. It does not matter if the Reich Wing Nazis whine about it. They are frothing at the mouth for law and order and if Trump loses, then give them what they have asked for, ruthlessly.

He might if the consequences for breaking his word included being charged with insurrection, seditious conspiracy and one count of conspiracy to murder for every person his dimwitted but obedient minions gun down before the revolt is put down.

But what worries me is that the bodycount from putting that revolt down is going to be appalling even if it stays at the level of sporadic, poorly-organised attacks by a rabble of hotheaded thugs. Which it might not: We already know the so-called "boogaloo boys" have sympathisers at quite senior positions in law-enforcement, and it's very likely that they have some in the military as well. If they start openly switching sides then the only winner of the 2020 presidential election will be the undertakers.

And yet if the new government don't go all out on purging the fash we're just going to be dealing with the same mess in four or eight years with a candidate who'll make us say, "Well, Trump might have been pretty awful, but compared to what came afterwards he wasn't that bad..." like we are with Bush jr. Assuming the lid doesn't blow off before that point...

I don't know what the least bad choice is at this point.

[Ralin]

He might if the consequences for breaking his word included being charged with insurrection, seditious conspiracy and one count of conspiracy to murder for every person his dimwitted but obedient minions gun down before the revolt is put down.

He wouldn't, because as noted Trump is too stupid and arrogant to believe those consequences would actually materialize. And if by chance he was intimidated into believing they would, it wouldn't last.

[Gandalf]

It might honestly be better to offer Trump some sort of immunity deal in return for him promising not to stir up trouble if the election result doesn't go his way, because if he tells the militiabros and their sympathisers in law-enforcement to make like Earl Turner they'll do it, and the Biden Administration already has a godawful mess to clean up without adding that to the problem.

All that does is further strengthen the precedent that POTUS can just get away with anything, meaning the next guy can go further.

The problem, of course, is that it wouldn't even occur to Trump that there would be any consequences for breaking his word. Or for bragging about how the Democrats were so afraid of the valiant patriotic Minutemen that they offered to drop their obviously politically motivated charges blah blah blah.

He's a rich and well connected white guy. Why would he ever expect consequences?

[Elfdart]

When a generation of Americans learned about politics from Sorkin's West Wing, this kind of fatuous thinking is to be expected.

Don't forget The Daily Show.

I wish I could, but Jon Stewart's many padawan learners (Trevor Noah, Samantha Bee and worst of all, John Oliver) that isn't likely.

My guess is that if Biden wins, there will be some kind of corrupt bargain where Cheeto Mussolini is allowed to skate on all his crimes provided he goes relatively quietly. I also get the feeling that if it is curtains for Trump, he'll resign before the Inauguration and get pardoned by President-for-a-day Mike Pence.

Would such a deal have any influence over state charges ?

Because a pardon from Pence would only save Trump from federal charges, and there is at least one state investigation into Trump.

What I'm expecting is that Trump will try to flee to a non-extradition country.

Are you suggesting Florida is a foreign country and not really part of America? Why you little scamp! Seriously though, Il Douchebag changed his official residence to Florida and it wasn't just to avoid New York taxes. His Number One bootlicker, Ron DeSantis is in charge and the legislature and courts are so chock full of MAGA morons that there's no way they'd extradite to New York -especially not when the federal courts are also loaded with Teabaggers.

Elfdart, you are likely right in your assessment.The Democrats need to grow a spine and play just as dirty as the Republicans and the refusal to seat gerrymandered Republican controlled states is something that they absolutely should do if Republicans show any signs of doing what the recent Atlantic article outlined, but I'm afraid that they'll just roll over like they so often have.

I've been complaining for years that the Democrats (the party and elected officials, not the voters) are little more than jobbers, like in pro wrestling: They pretend to put up a fight against the heels, but they flop right on cue almost every fucking time. Well now it's put up or shut up time. If Trump really is a mortal threat to the Republic, then Democrats can either use every bit of parliamentary bullfuckery they can muster to stop him and his judges -or they can dry up and blow away.

[Knife]

Right wing evangelical voters ara already voting republican. What a lot of Republican Senators need is the so called independents. Those that may think Trump is toxic but 'their' guy from their state is ok. Murkowski in Alaska needs them and has come out as a no. Collins is in a fight of her career (and will probably lose anyway) and is suffering from her Kavanah vote. She came out as a no. Gardner in Colorado has similar problems. The has yet to come out yes/no but could be vote 3. Tom Tillis in NC might be in the same vein. Daines in Montana the same. There are a couple who are in trouble but not sure if they'd take the no for political gain since their politics was the crazy teaparty stuff like Ernst in Iowa, or Perdue in Georga. Both Senate seats in Georgia are in play this year, but Loeffler is crazy Trumpian Teabagger type.

So, yeah, there are viable ways to get 50+1 no's on confirmation. Only two GOPers have indicated they'd do it so far. Really only need 1 more, or 2 to seal the deal. I'm not super hopeful, GOPers are the ones that have enabled Trump, and a majority of them have the politics of stacking the courts with right wing nuts. But also, never underestimate the power of a Senator to flip his/her vote to save their own ass.

[bilateralrope]

So, what questions do you all think the nominee should be asked to help encourage senators to flip ?

I'm thinking something about if the nominee will recuse themselves in cases involving Trump. Especially the cases currently scheduled for arguments there. If the nominee refuses to recuse, that makes the nominee look corrupt. If the nominee says they will recuse, Trump might pull the nomination because he wants a judge that will serve him.

Maybe a question about if the judge thinks an election result should be announced before all the votes are counted.

[Ralin]

Most Republican senators wouldn't be fazed by the nominee saying he wouldn't recuse himself, since that's part of the point of putting him on the court to begin with. For the ones who would be...nothing stopping the nominee from lying about it.

If the nominee says they will recuse, Trump might pull the nomination because he wants a judge that will serve him.

Unless they discuss it beforehand and Trump is confident the guy is lying.

[bilateralrope]

Most Republican senators wouldn't be fazed by the nominee saying he wouldn't recuse himself, since that's part of the point of putting him on the court to begin with. For the ones who would be...nothing stopping the nominee from lying about it.

If the nominee says they will recuse, Trump might pull the nomination because he wants a judge that will serve him.

Unless they discuss it beforehand and Trump is confident the guy is lying.

Wouldn't the nominee be under oath ?

Thus opening themselves up to perjury that might be blatant enough to impeach the justice.

As for how Republican senators would react, the refusal to recuse means that voting to confirm the nominee will strengthen the link the public sees between that senator and Trump. Sure, it won't matter for any senator who is sure they will win their next reelection. Nor for any who are sure they will lose. But it might tip those in close races.

It's not a guarantee. But the question still seems worth asking.

[Ralin]

Wouldn't the nominee be under oath ?

Yeah. That'll stop em.

Thus opening themselves up to perjury that might be blatant enough to impeach the justice.

Hasn't ever successfully happened if I remember right, and the first time damned well won't be for a Republican justice when Trump is president. Which is the point of this whole exercise.

I mean, ask the question, I guess. But don't expect it to do anything. I'm not even sure it would be demonstrably perjury, since he could just say he changed his mind on the subject. That's something judges are allowed to do.

[Rogue 9]

Thus opening themselves up to perjury that might be blatant enough to impeach the justice.

Hasn't ever successfully happened if I remember right, and the first time damned well won't be for a Republican justice when Trump is president. Which is the point of this whole exercise.

I mean, ask the question, I guess. But don't expect it to do anything. I'm not even sure it would be demonstrably perjury, since he could just say he changed his mind on the subject. That's something judges are allowed to do.

Samuel Chase was impeached in 1804, but not convicted by the Senate. Abe Fortas resigned from the Court under threat of impeachment for financial impropriety in 1969. But if the nominee says she will recuse from any case over the election, and then doesn't, that's clear cut perjury; that's not something a mind honestly changes about in just a couple of weeks.

[Ralin]

Samuel Chase was impeached in 1804, but not convicted by the Senate.

Right, successful impeachment doesn't require a conviction. I was using sloppy wording.

But if the nominee says she will recuse from any case over the election, and then doesn't, that's clear cut perjury; that's not something a mind honestly changes about in just a couple of weeks.

That would be true if we lived in a sane world, but the past few years haven't given me much reason to expect things like that to be enforced.