OK! It's About Time. The Court Thread!

[batmagadanleadoff]

Is John Roberts trying to save the Supreme Court from Democratic packing?

Opinion by
Henry Olsen
Columnist
June 30, 2020 at 2:01 p.m. EDT

Supreme Court Chief Justice John G. Roberts Jr. voted with the court’s four progressive justices in three key cases over the past few weeks. He provided his own legal rationale in two of them, but his real motive might be to prevent Senate Democrats from packing the court after November’s election.

You need to travel all the way back to 1937 to understand what Roberts might be thinking. Back then, Democratic President Franklin Delano Roosevelt had just had a historic landslide win in the 1936 election, defeating his Republican opponent, Alf Landon, by 24 points and a 523-to-8 margin in the electoral college. Democrats gained seats in the House and the Senate for a fourth straight election and held a 334-88 majority in the House and a 74-17 seat lead in the Senate. Two small pro-Roosevelt parties held another 13 seats in the House and three in the Senate. The people had spoken, and they wanted more of FDR’s New Deal.

Roosevelt was being stymied, however, by a Supreme Court dominated by five aging conservative justices. Those justices had struck down his National Recovery Administration and parts of his Agricultural Adjustment Act — two key cogs in his New Deal — as unconstitutional. Buoyed by his overwhelming popular mandate, Roosevelt proposed a bill allowing a president to appoint a new Supreme Court justice for every sitting justice who was both older than 70 years and 6 months old and had served for 10 years. That would have allowed him to appoint as many as six new justices in 1937, providing a clear supermajority to back New Deal measures.

One justice, Owen Roberts, saw the writing on the wall. He had opposed the NRA and AAA but switched to back a minimum wage law in a decision released only three weeks after Roosevelt announced his court-packing plan to the public. This unexpected reversal became known in legal lore as “the switch in time that saved nine,” a prudential move that arguably sapped public enthusiasm for Roosevelt’s gambit. Justice Willis Van Devanter, another aged New Deal opponent, retired a few months later, giving Roosevelt his first court appointment. Both decisions helped prevent the court-packing scheme from becoming law, and this continued the tradition of keeping the number of justices at nine.

Democratic furor over Justice Brett M. Kavanaugh’s confirmation has helped reignite the interest in packing the court. Liberals started to call for adding justices to the court almost as soon as Kavanuagh took his seat. By March 2019, leading Democrats were endorsing the scheme. While the presumptive Democratic nominee, Joe Biden, has said he opposes the idea, Biden has been known to change his stances before. With polls increasingly showing Democrats likely to regain the White House and take back control of the Senate, Roberts would have to be living in a cave not to see that court packing could happen soon.

Hence, perhaps, his recent votes. He joined the majority in the case extending anti-discrimination protections to the LGBT community through the Civil Rights Act of 1964. He also cast the deciding votes in the case that prevented President Trump from repealing the Obama-era Deferred Action for Childhood Arrivals program and in Monday’s case overturning a Louisiana law requiring abortion providers to have admitting privileges at a hospital. His vote in the latter case came even though he had voted against overturning a similar law just a few years earlier. His concurring decision in this case argued that the previous case provided binding precedent even though he still thought it was wrongly decided. This cannot bode well for conservative hopes that Roberts would overturn the nearly 50-year-old precedent in Roe v. Wade.

In making these decisions, the chief justice, like the previous Justice Roberts more than 70 years ago, switched on key cases important to the progressive social activists who sparked the modern court-packing movement. By switching before the election, Roberts could be thinking that he has done so “in time to save nine” — removing the pretext for packing the court.

We’ll see. The court is much more of a political issue today than it was in the 1930s. Progressives could be wary of giving Roberts a chance to switch back once the political coast is clear. There’s also the lingering anger among liberals over Republican refusal to even hold a hearing on President Barack Obama’s nomination of Judge Merrick Garland in 2016 to replace the late conservative justice Antonin Scalia. Should Democrats retake the Senate in the fall, they could decide to use their new majority to add progressives to the court rather than risk that happening again should the GOP retake the Senate after the 2022 midterms.

Roberts might think his middle-of-the-road position will preserve the court’s independence. But the old saying of Texas progressive politician Jim Hightower may yet prove true: “There’s nothing in the middle of the road except yellow stripes and dead armadillos.”

https://www.washingtonpost.com/opinions ... c-packing/

[nymr83]

Well, I dont think that is what Roberts is doing, but it is not an unreasonable question.

[Benjamin Grimm]

And what exactly has been stopping the Republicans from packing the court at any time during these last few years?

[batmagadanleadoff]

And what exactly has been stopping the Republicans from packing the court at any time during these last few years?

Because when the GOP controlled everything during Trump's first two years, they thought they already had a reliable and extremely conservative majority after Kavanaugh's confirmation. They still do, notwithstanding some recent decisions. So they probably felt it unnecessary to court-pack.

Meanwhile, the Dems, even today, probably aren't as unified in packing the Supreme Court as many progressives would like for them to be. This is gonna be a difficult lift that's gonna require enormous consensus building. I suspect that the GOP, to some extent, is counting on the Dems "having neither the balls nor the momentum" to court-pack. But if the GOP were to have packed the SC before the 2018 midterms, whatever inhibitions or other obstacles that may have existed to hold back the Dems disappear instantly, and the Dems would then be hell-bent on re-packing the SC first chance it gets. The chains come off. It would've looked awful for the GOP to have packed the SC during Trump's first half after already blocking Garland and 100 lower court judicial openings under Obama, and then killing the judicial filibuster to ram through extreme hard-right conservatives Gorsuch and Kavanaugh Also, if the Dems ever get serious about packing the SC, the GOP will go out on a media blitz attack against the Dems and their court-packing designs that will make Benghazi and Hillary's emails look like a picnic at the beach. The GOP loses all of that so-called and hypocritical "norm-respecting high-ground" if they pack the SC first.

The Dems are gonna have to grant DC statehood before it packs the court. Puerto Rico, too. To make it harder for the GOP to then retaliate and re-pack the SC.

[batmagadanleadoff]

Like I said, Roberts is a scumbag. Today's religious case and it's absurd reasoning analyzed -- to wit -- a state that funds secular schools has to fund religious schools. Once again, the extreme right wing of the SC invents batshit crazy legal theories out of thin air to advance their unconstitutional agenda.

John Roberts Just Bulldozed the Wall Separating Church and State
His stunning 5–4 decision forces states to fund religious schools—and augurs even more radical rulings down the road.

On Tuesday, in a sweeping 5–4 decision, the Supreme Court forced a majority of states to fund private religious schools in a ruling that compels millions of U.S. taxpayers to subsidize Christian education—even if financing another religion violates their own beliefs. Incredibly, this maximalist decision did not go far enough for two conservative justices who would apparently let states establish an official religion. In dissent, Justice Sonia Sotomayor described the majority’s decision as “perverse.” That may be an understatement: Its decision is the culmination of a yearslong assault on secular governance and augurs even more radical rulings down the road.

The basis for Tuesday’s decision in Espinoza v. Montana originated in a creative scheme devised by the Montana Legislature to fund sectarian schools. The Montana Constitution contains a “no-aid” provision that bars the state from providing public funds to religious institutions, as do 37 other state constitutions. To work around this rule, the Legislature granted tax credits to residents who donate money to Big Sky Scholarships, which pays for students to attend private schools, both secular and sectarian. (Montana’s demographics ensure that the only sectarian schools that participate are Christian.) In other words, residents get money from the state when they help children obtain a private education, including religious indoctrination. In 2018, the Montana Supreme Court found that this program violated the state constitution’s no-aid clause. But instead of excluding sectarian schools, the court struck down the whole scheme for all private education.

Chief Justice John Roberts revived Montana’s tax credit scheme on Monday in a convoluted opinion that announces a startling new constitutional principle: Once a state funds private education, “it cannot disqualify some private schools solely because they are religious.” Twenty-nine states, the District of Columbia, and Puerto Rico all provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, they must now extend these programs to private religious schools.

The upshot: Taxpayers in most of the country will soon start funding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience. For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs? In short, too bad: Your rights just don’t matter as much. This decision flips the First Amendment on its head. The amendment’s free exercise clause protects religious liberty, while its establishment clause commands that the government make no law “respecting an establishment of religion.” Just 18 years ago in Zelman v. Simmons-Harris, a bare majority of the Supreme Court ruled that, under the establishment clause, states were allowed to fund private schools through vouchers or tax credits, over vigorous dissents from the four liberal justices. Now the court has declared that, under the free exercise clause, most states are compelled to fund private religious schools. The conservative majority has revolutionized church-state law in record time.

How did the court chart this catastrophic course? The barrier between church and state took a hit when five justices permitted state financing of sectarian schools in Zelman. It nearly collapsed when the court expanded religious institutions’ access to taxpayer money in 2017’s Trinity Lutheran v. Comer, which held that states cannot deny public benefits to religious institutions because they are religious. The court claimed to find this dangerous rule in the First Amendment’s free exercise clause—even though, as Sotomayor pointed out in her searing dissent, separating church and state does not limit anyone’s ability to exercise their religion. She closed with a warning: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.”

Tomorrow has arrived, and it is as absurd as Sotomayor predicted. Roberts’ majority opinion follows Trinity Lutheran to its logical, outrageous conclusion: A state violates free exercise, the chief justice wrote, when it “discriminate[s] against schools” based on “the religious character of the school.” The government, Roberts explained, has no compelling interest in preserving the separation of church and state beyond what the First Amendment requires. Nor does the government have any interest in protecting taxpayers’ right not to fund religious exercise that infringes upon their own beliefs. “We do not see how the no-aid provision promotes religious freedom,” the chief justice wrote tersely.

Perhaps Roberts can’t see it, but James Madison certainly could. As Justice Stephen Breyer wrote in dissent, Madison famously opposed a Virginia bill that would have taxed residents to support teachers of “the Christian Religion,” condemning it as “a signal of persecution” that violates religious liberty. Montana’s Christians-schools-only program illustrates how states that fund religion wind up funding the faith shared by a majority of residents. Breyer, quoting Madison, noted that state funding of a particular religion may “destroy that moderation and harmony” among different faiths that is a hallmark of America’s religious tolerance.

This extreme outcome was not enough for Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. Thomas, joined by Gorsuch, asserted that the very concept of separating church and state “communicates a message that religion is dangerous and in need of policing, which in turn has the effect of tilting society in favor of devaluing religion.” According to Thomas, enforcing church-state separation amounts to “religious hostility” and must end immediately. The justice reached this conclusion by reiterating his conviction that the First Amendment’s establishment clause was “likely” designed to preserve states’ ability to establish official religions.

In his own separate opinion, Alito attacked the “no-aid” clauses in 38 state constitutions, including Montana’s. He claimed that these provisions were motivated by anti-Catholic animus, and it is true that nativists supported them in the 19th century. But Alito omitted the fact that advocates for universal education also encouraged these provisions for perfectly legitimate reasons before nativists rallied around them. And he waved away the fact that Montana readopted its no-aid clause in 1972 for the express purpose of shielding religion from state entanglement. Alito will not let inconvenient facts stand in the way of his campaign to invalidate 38 states’ constitutional guarantees against state subsidization of religion.

If there is any silver lining to Roberts’ opinion, it is that he did not adopt Thomas’, Gorsuch’s, or Alito’s radical positions. At least, not yet. The only limiting principle Roberts lays out is that states “need not subsidize private education” in the first place—so, in theory, states can abolish public funding of private schools entirely to avoid funding religious ones. But that’s what the Montana Supreme Court did here, yet Roberts condemned its decision as “discrimination against religious schools.” If a legislature tries to end a voucher program in light of Espinoza, the Supreme Court’s conservatives could easily find more proof of anti-religious “discrimination” and force it to revive the program. Having gutted protections against the establishment of religion, the majority is limited only by its own sense of what it can get away with.

https://slate.com/news-and-politics/202 ... hools.html

[Ceetar]

The Democrats are just going to roll over and do nothing. They'll "fix" some of the things trump broke (in that they'll repair the extra damage, not actually fix the problem) and that's about it. Everyone so worn out from this presidency will just checkout when things are "normal" and in 2022 congress will flip back, nothing will get done, and in 2024 they'll run Biden again and many will be sore that he got nothing done and stay home.

[batmagadanleadoff]

You never hear the Dems make an election issue out of the judiciary. That's one reason why the GOP was able to install so many extreme right conservative wingnuts to the bench. Also, the White House prepares for a possible Clarence Thomas retirement. Because the rule that the voters, and not the Senate, should fill an empty SCOTUS seat when a presidential election is near is valid only when the sitting president is a Democrat.

Trump supporters hope to use conservative anger at Justice Roberts as energizing moment for troubled campaign

The White House is trying to capitalize on conservative anger at Chief Justice John G. Roberts Jr. over his latest decisions by telling evangelical leaders and other activists that they need to turn out voters for President Trump so he can use a second term to continue nominating conservative judges to the nation’s highest court.

Some recent polls have shown a weakening in support for Trump among evangelicals, who have long been among the president’s strongest supporters. But Roberts’s role in cases advancing both gay and abortion rights is now seen in the White House as an opening to shore up that part of Trump’s political base.

Ralph Reed, the founder of the Faith and Freedom Coalition, said there is frustration and disappointment in evangelical ranks about Roberts’s rulings, but he said he and others are not going to walk away from Trump.

“Voters of faith know that that project to shift the court in a more conservative direction is on the 5-yard line and it’s a strategic imperative to get President Trump reelected,” Reed said. “The Louisiana decision has brought the life issue into fuller relief and reminded us why we have to give the president the chance to nominate more justices.”

In a remarkable stretch of decisions over the past two weeks, Roberts has infuriated conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought into the country as children.

In Monday’s decision striking down a restrictive Louisiana abortion law, Roberts said the court’s allegiance to honoring its past decisions meant striking down a law almost identical to one in Texas that the court said in 2016 was unconstitutional.

Still, even as the White House works to reassure conservatives, it faces challenges in containing the rage over the George W. Bush appointee’s alignment with liberal colleagues and ensuring that his rulings do not depress the president’s core voters.

“John G. Roberts Jr. has stabbed the American people in the back more than Norman Bates and ‘swings’ more than Hugh Hefner in his heyday,” former Arkansas governor Mike Huckabee, an evangelical leader, tweeted on Tuesday, adding that Roberts should “Resign Now.”

Roberts is not alone in facing conservatives’ wrath. Justice Neil M. Gorsuch, a Trump appointee, and Roberts joined the court’s liberals in the 6-to-3 ruling that a landmark federal civil rights law from the 1960s protects gay and transgender workers.

The decision by Gorsuch to chart his own course is particularly painful for some conservatives, given that he was vetted for Trump by a small network of conservative legal scholars, including leaders of the Federalist Society, who offered public assurances of his credentials.

Inside the White House, officials are working to hold conservatives together and to remind them of Trump’s track record on the federal judiciary, arguing that the scope of the president’s efforts should outweigh any anger with Roberts and others on the court.

Vice President Pence, a conservative who has spent his career building bonds with evangelicals, is at the center of that outreach, according to two conservative activists in frequent contact with the White House.

On Monday, Pence did not swipe Roberts directly, but he did tweet that “after today’s disappointing decision by SCOTUS, one thing is clear: We need more Conservative justices on the U.S. Supreme Court.” Pence also spoke Monday with the Susan B. Anthony List, an antiabortion group whose leader has criticized Roberts as caving to “social pressures” that cause “intellectual and moral collapse.”

One of Pence’s aides, veteran conservative organizer Paul Teller, is communicating daily with right-wing groups and “bucking them up, staying positive, and sending us talking points,” one of the conservative activists said.

There are also ongoing discussions between Trump advisers and conservative leaders about the possibility of a Supreme Court vacancy in the coming months — a tantalizing prospect for Republicans who value the court above all other issues and are eager to have Trump have one more opportunity to nominate a justice before the election.

Justice Clarence Thomas, a conservative appointed by George H.W. Bush, is privately seen by Trump’s aides as the most likely to retire this year. While Thomas has not given any indication of doing so, the White House and Senate Republicans are quietly preparing for a possible opening, according to a White House official and two outside Trump political advisers who spoke on the condition of anonymity to discuss the private conversations.

“If Thomas goes, you’ve got a lot of people around this process ready to support Thapar — and McConnell ready to move his favorite through,” said one of the outside Trump political advisers, referring to Judge Amul R. Thapar of the U.S. Court of Appeals for the 6th Circuit.

Thapar, 51, is the son of Indian immigrants and has been touted by Senate Majority Leader Mitch McConnell (R-Ky.) as a prime candidate. He previously served as a U.S. attorney and federal district court judge in Kentucky — and was on Trump’s shortlist in 2018 when Justice Anthony M. Kennedy retired from the bench.

Other conservatives remain hopeful that Judge Amy Coney Barrett, 48, of the U.S. Court of Appeals for the 7th Circuit, will be nominated by Trump if there is a vacancy. But Barrett’s past membership in groups that have promoted antiabortion views could make her harder to confirm in campaign season, the outside advisers said.

Several Trump advisers and the White House official said Coney Barrett is more likely to be nominated in the event that Justice Ruth Bader Ginsburg, a Bill Clinton appointee, steps down. One of the Trump advisers said, encouragingly, that Coney Barrett would cause a “culture war.”

McConnell has publicly stated that he would push to confirm another Trump nominee.

“Oh, we’d fill it,” McConnell said in May when asked at a Kentucky event about whether he would fill a vacancy this year. That remark sparked outrage and cries of hypocrisy among Democrats since McConnell blocked Judge Merrick Garland, President Obama’s nominee to the Supreme Court in 2016, insisting that the nomination should wait until after that year’s presidential election.

The White House official said Trump is likely to update and extend his public shortlist for the Supreme Court before the election as a way of reminding conservatives of his commitment to their cause.

For Trump, keeping conservatives who focus on the court engaged and upbeat about him is of paramount importance as he faces off against former vice president Joe Biden, the presumptive Democratic nominee. Biden has pledged to nominate a black woman for the Supreme Court, should he win the White House.

Top Democrats are urging their own activists to remain vigilant and keep pace with conservatives.

“The ruling on the Louisiana law is no cause for complacency,” Sen. Richard Blumenthal (D-Conn.) said. “There will be more efforts by state legislatures to chip away at reproductive rights, and this week’s majority could be lost if Trump is reelected.”

Whether Roberts’s rulings end up driving up GOP turnout or not, it is clear that anger over the chief justice is unlikely to abate soon.

“If it were up to me, I’d start impeachment proceedings against John G. Roberts Jr.,” American Conservative Union chairman Matt Schlapp, a Trump ally, told Fox News on Tuesday. “What he’s done on Obamacare twice and what he has done here on abortion is act like a left-wing politician. If he’s not going to be impeached, he ought to resign and run for Congress.”

On the campaign trail in Tulsa on June 20, Trump told his rally crowd, “Justice Gorsuch, Justice Kavanaugh, they’re great. They’re great. We have two and we could get a few more. Yeah. We could get a few.”

When asked last week, in an interview with the Christian Broadcasting Network, whether Roberts is “worse” than past GOP-nominated justices that have distressed conservatives, such as Kennedy, Trump said, ‘So far, we’re not doing so well. It says, look, you’ve had a lot of losses with a court that was supposed to be in our favor.”

But, Trump added, the rulings show that it is necessary for Republicans to win this year to avoid having a “radical left group of judges” on the court.

Trump’s campaign advisers said the campaign will continue to make that point to Trump’s supporters this summer.

“President Trump has an unsurpassed record of appointing 200 solid, conservative judges and he will continue to do so,” Tim Murtaugh, a spokesman for the Trump campaign, said in a statement. “Joe Biden cannot stand up to the radical left and would appoint liberal judges who would legislate from the bench. It would be a disaster for conservatives.”

The Senate last week confirmed Trump’s 200th judicial nominee, a milestone that Trump and McConnell have made a keystone of their political legacies.

Working to contain conservative anger over the court is hardly unusual for a Republican president. Harriet Miers, who was put forward by George W. Bush, withdrew from consideration in 2005 when Republicans objected to her nomination, saying she was insufficiently conservative. Retired justice David H. Souter was appointed by George H.W. Bush but became a target of conservative ire after he reliably voted with the liberal bloc on the court in the 1990s and early 2000s.

“Conservative activists and Trump supporters don’t blame Trump for it. It just seems to be a pattern of bad luck for conservatives. We had it with Souter, and I guess we’re getting it with Roberts, if these last few decisions are an indication,” said former senator Bob Smith (R-N.H.).

https://www.washingtonpost.com/politics ... story.html

[batmagadanleadoff]

The GOP traded its principles for conservative judges. It was a bad deal.
If Republicans lose the White House in 2020, they’ll have to ask whether they paid too high a price

[I disaagee with the premise that if the GOP loses the WH, it will not have been worth the hundreds of extreme right judges Trump picked. What? Was it this writer' expectation that the GOP would otherwise hold the presidency forever? These Trump judges, most of them stolen from Obama, including Scalia's ideology deciding Supreme Court seat, will be there for decades, solidifying a hard-right majority that might be there forever without extreme countermeasures by the Dems.]

President Trump has retained support from many Republicans and conservatives thanks to a Faustian bargain: So long as he stacks the judiciary with friendly judges, they’ll look the other way when he pushes trade protectionism, ditches entitlement reform or woos Russian President Vladimir Putin — positions out of step with recent conservative orthodoxy.

Former George W. Bush administration lawyer John Yoo said that he had deeply conservative friends “who would normally be utterly turned off by a guy like Trump,” yet supported him “only because of [the] appointment to Justice [Antonin] Scalia’s vacancy” on the Supreme Court. Conservative fixation with judges goes beyond the Supreme Court, including the lower courts as well. Noting that the Supreme Court hears a tiny fraction of the cases decided by appellate judges, Washington Post contributing columnist Hugh Hewitt challenged Trump’s conservative critics to “reconcile their vehement opposition to him with their love of the Constitution.” As David Harsanyi argued for the Federalist, “The question was,” for conservatives, “ ‘What’s scarier, a Trump presidency or a progressive Supreme Court?’ ”

Conservatives may have felt that the bargain paid off late last month, when Trump clinched his 200th judicial confirmation faster than any president since Jimmy Carter. Sen. John Barrasso (R-Wyo.) tried to spike the ball when he said that the milestone marked “a sea change, a generational change on the federal bench” — and that “Republicans are stemming this liberal judicial tide that we’ve lived with in the past.”

But a closer look at the numbers shows that Trump’s judicial record is less a sea change and more the routine ebb and flow from president to president. If Democrats take both the White House and the Senate in November, as current poll numbers suggest they might, then much of Trump’s judicial legacy probably will be soaked by a wave of Democratically appointed judges. That may leave conservatives wondering for what, exactly, did they sell their ideological souls.

Of Trump’s 200 judges, 198 are on lower courts: 143 district-level judges, two international trade judges and 53 appellate-level judges. An additional 44 lower-court nominees are in the pipeline, though there’s no guarantee all will get confirmed. But for the sake of comparisons, let’s assume Trump’s tally ends up at 242 lower-court judges.

That would not give Trump’s judges dominance in the federal judiciary, as there are 851 Article III lower-court seats in all. Topping out at 242 seats would give Trump about 28 percent of the lower-court judiciary (currently he’s at 23 percent). That may be impressive for a single term, but if a single term is all Trump gets, he will nevertheless be outdone on judicial confirmations by his immediate predecessors: Barack Obama got 327 lower-court judges, George W. Bush 326 and Bill Clinton 376.

Trump got to 200 judges faster than any president since Carter, but that fact should make you pause. The last one-term Democratic president and his 259 lower-court judges did not transform the judiciary for a generation. They were quickly met with 379 lower-court judges picked by Republican Ronald Reagan. As of today, if Trump has only one term, he is more likely to replicate Carter’s result, not Reagan’s.

Trump has had particular success in confirming appellate, or circuit, court judges, who are especially prized because many cases don’t go beyond the appellate level to the Supreme Court. His right-hand man in the quest for the judiciary, Senate Majority Leader Mitch McConnell (R-Ky.), boasted that the 200th confirmation meant “there will not be a single circuit court vacancy anywhere in the nation for the first time in at least 40 years.” It was McConnell’s relentless obstruction that prevented Obama from filling some of those vacancies, but Democrats shouldn’t indulge their tears: Obama still secured two more appellate-level judges than Trump.

Trump was able to move faster in his first term than most of his predecessors because the rules changed. Democrats in Obama’s second term, fed up with GOP obstruction, eliminated the filibuster for lower-court judges. Senate Republicans under Trump followed suit for Supreme Court justices and have repeatedly guffawed at how Democrats made Trump’s job so much easier.

But the loss of the judicial filibuster greases the procedural wheels for whichever party simultaneously holds the presidency and the Senate. The Democrats may well get their turn starting in January. Among the appellate court judges, 77 will be 65 years old by the end of this year. Most of these older judges will be eligible to move to “senior” status, in which a judge takes on a reduced workload while creating a full-time vacancy. The routine churn of judicial vacancies will not end with the Trump presidency.

What about the Supreme Court? Trump pitched his plans here openly in 2016, releasing a list of conservative judges from which he promised to draw for high-court vacancies and declaring at a campaign rally: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges.”

Trump’s first pick, Neil Gorsuch, eventually succeeded Scalia, whose seat McConnell kept open by blocking Obama’s nominee. Then, when Justice Anthony M. Kennedy stepped down, the president took what had been a swing seat and made it more conservative by filling it with Brett M. Kavanaugh. Weren’t those Supreme Court picks worth the ideological price that conservatives paid by supporting Trump?

Well, this supposedly die-hard conservative Supreme Court has blocked Trump from canceling Obama’s Deferred Action for Childhood Arrivals (DACA) policy, thwarted Trump’s effort to put a citizenship question in the census, sided against the administration’s attempt to gut the Clean Water Act, made it easier for consumers to pursue antitrust claims against major corporations and expanded the workplace rights of transgender employees. On Monday, the court refused to let states weaken Roe v. Wade with debilitating restrictions on abortion clinics. In some of these cases, a Trump appointee joined the court’s liberals in the majority. Gorsuch himself wrote the transgender rights decision.

This has rattled social conservatives. “You cannot trust in these institutions at all anymore nor can you vote in enough people to stop a cultural shift in directions you might not want to go,” lamented pundit Erick Erickson.

Erickson is correct. Conservatives shouldn’t bank on the federal judiciary to do what they want all the time. The Supreme Court was designed by America’s founders to elude partisan and ideological capture, as Alexander Hamilton outlined in Federalist No. 78. Conservatives have struggled with accepting this constitutional reality after Kennedy, a Reagan appointee, wrote the majority opinion in Obergefell v. Hodges, guaranteeing the right to same-sex marriage; after Justice David Souter, a George H.W. Bush appointee, became a reliably liberal justice in a wide range of cases; and after Chief Justice John G. Roberts Jr., a George W. Bush appointee, upheld the legality of Obamacare and eventually became a swing vote. Perhaps the Gorsuch opinion will help the lesson finally sink in.

Of course, conservative judges will still rule conservatively most of the time. Liberals will forever scorn the Roberts court for invalidating campaign finance reforms, narrowing the scope of the Voting Rights Act and making it harder for unions to organize.

Nevertheless, recent rulings, along with the record of almost a half-century of lower-court judicial appointments, clearly weaken the logic of sacrificing seemingly bedrock conservative principles in pursuit of a rigidly ideological judiciary. The paradoxical combination of lifetime judicial appointments and perennially shifting political winds makes it difficult for one faction to place a permanent hammerlock on our courts. There are structural limits to those “sea changes.”

In the battle for the judiciary, the war is never ultimately won. Consider that in 1987, Democrats blocked Judge Robert Bork’s Supreme Court nomination, which helped put the less-doctrinaire Kennedy on the court — only to see conservative stalwart Clarence Thomas replace liberal icon Justice Thurgood Marshall a few years later. The anger over Thomas’s confirmation contributed to Democratic victories in 1992, paving the way for Justice Ruth Bader Ginsburg to replace a dissenter to Roe, Justice Byron White.

If Democrats win big in 2020, they will again get their turn at shaping the judiciary, and Republicans will have to ask if they paid too steep a price.

https://www.washingtonpost.com/outlook/ ... -nominees/

[batmagadanleadoff]

Sigh! The 11th Circuit Court of Appeals, whose jurisdiction includes Florida, is one of several circuit courts that Trump was able to flip to Republican majority. The 11th circuit, bypassing the three judge panel, ruled en banc, (by the full court panel) that Florida may prevent felons from voting unless they pay their outstanding court debts. Today, the Supreme Court affirmed the 11th circuit.

The Supreme Court Just Stopped 1 Million Floridians From Voting in November

Excerpt:

The Supreme Court all but guaranteed that nearly 1 million Floridians will be unable to vote in the 2020 election because of unpaid court debts in a shattering order handed down on Thursday. Its decision will throw Florida’s voter registration into chaos, placing a huge number of would-be voters in legal limbo and even opening them up to prosecution for casting a ballot. The justices have effectively permitted Florida Republicans to impose a poll tax in November.

[***]

In 2018, a supermajority of residents approved a constitutional amendment that abolished a Jim Crow–era law permanently disenfranchising convicted felons. GOP lawmakers promptly sabotaged this amendment by passing a law that compelled formerly incarcerated people to pay all fines and fees associated with their sentence. Florida imposes a mind-boggling array of fees on defendants to fund its criminal justice system, and the new law would disenfranchise almost a million of the roughly 1.4 million voters who were poised to regain their voting rights.

https://slate.com/news-and-politics/202 ... l-tax.html

___________________

Florida's Voting Law Is a Poll Tax in Sheep's Clothing

One that the Supreme Court has allowed to stand.

Excerpt:

OK, maybe it’s time to stop painting that Roberts Court mural you started when the Supreme Court graciously allowed LGBTQ citizens to continue to have the same employment rights as everyone else. With the “big” cases finally cleared from the calendar, the Court has been busy allowing the federal government to kill people again, and joining its chief justice’s career-long campaign to block the franchise from those perceived as unworthy and inconvenient.

As to the latter, on Thursday, the Court refused to overturn a lower court’s decision that essentially blocked some 1.4 million citizens in Florida from voting because they had been convicted of a felony. This was the latest turn in a legal brawl that started when the people of Florida voted overwhelmingly in favor of a 2018 referendum proposing to restore the franchise to this particular slice of the population. Florida Republicans, led by Governor Ron (Superspreader) DeSantis, proceeded to game the new system in such a way that it would still restrict voting by the people whom the referendum was designed to help.

[***]

Anyway you slice it, this is a poll tax in sheep’s clothing, completely contrary to the spirit of the 24th Amendment to the Constitution. As the Post reports, if you’re one of the voters affected by this regulation in Florida, there’s no statewide system in place to help you find out how much you owe. And thus does the poll tax meet Catch-22.

https://www.esquire.com/news-politics/p ... -poll-tax/

________________

I guess the thing to do is for Floridians to go back to the drawing board and put forth another referendum, this time eliminating the GOP imposed requirement that felons pay outstanding court costs in order to have their voting rights restored.

[Edgy MD]

Man, a poll-tax that nobody knows how to pay. Even if some billionaire swoops in to cover the fees, successfully bailing people out would be Herculean.

[Ceetar]

I made this comparison when we mentioned it elsewhere, but it's a literal (double) scene from the beginning of Hitchhiker's guide to the galaxy to pay those fees.

[batmagadanleadoff]

I'm calculating that it'll be eight years at the earliest, 2028, before Florida's felons could vote in a presidential election. That's if a new measure passes in 2022. Then Republican obstruction will keep the new measure in limbo for at least two years as its tied up in new litigation. That'll take it past the 2024 election.

Unless a Dem admin gets to replace Clarence Thomas or the Dems pack the courts.

Florida libs who voted for Jill Stein in 2016 should get strangled.

[ashie62]

Different kind of court, but I got hit by a car. Fractured hip, cuts. On CVS property. Oxycontin not making a dent. Balls

[Johnny Lunchbucket]

doh

[batmagadanleadoff]

Ruth Bader Ginsburg says she is being treated for recurrence of cancer

Excerpt:

Justice Ruth Bader Ginsburg announced Friday that she is being treated for a recurrence of cancer, this time on her liver, but says she remains able to do her work on the Supreme Court.

“I have often said I would remain a member of the court as long as I can do the job full steam,” Ginsburg said in a written statement. “I remain fully able to do that.”

Ginsburg, 87, and the court’s oldest member, has battled cancer four times and has had other health concerns. She was in Johns Hopkins Hospital in Maryland earlier this week for an unrelated infection related her gall bladder.

https://www.washingtonpost.com/politics ... story.html

So assuming the Dems win this November, who here wants to make the ghoulish but necessary calculation on how long RBG has to hang in there before there's no longer enough time for this admin to replace her with another extremist GOP Federalist Society justice?

[LWFS]

Faaaaaaaaaaaark

[batmagadanleadoff]

Faaaaaaaaaaaark

Awful. Terrible. Bad, bad bad. Her situation can turn for the worse on two minutes notice.

In her statement, Ginsburg said she began chemotherapy in mid-May after doctors discovered lesions on her liver. A subsequent scan, on July 7, indicated “significant reduction” of the lesions and no new disease, she said.

“I am tolerating chemotherapy well and am encouraged by the success of my current treatment,” Ginsburg said.

[Benjamin Grimm]

If she died on December 30, with a Democratic Senate a few days from being seated, I'm sure they would rush through a nomination and a confirmation. They'll have a candidate vetted and ready to be nominated.

I think the new Senate will be seated on January 2? That's 169 days away.

[batmagadanleadoff]

If she died on December 30, with a Democratic Senate a few days from being seated, I'm sure they would rush through a nomination and a confirmation. They'll have a candidate vetted and ready to be nominated.

I think the new Senate will be seated on January 2? That's 169 days away.

I wonder if this turn of events will motivate more Dems or Republicans in turnout for this upcoming election? Let's see how distasteful Trump gets in playing this news to his base.

[Benjamin Grimm]

I was just in a conversation about this... I think the right is more motivated by court appointments than the left is. I wish that wasn't the case.

But this year is anything but typical, so who knows?

[MFS62]

Different kind of court, but I got hit by a car. Fractured hip, cuts. On CVS property. Oxycontin not making a dent. Balls

Holy cow!
Feel better, Ashie!
Later

[nymr83]

If she died on December 30, with a Democratic Senate a few days from being seated, I'm sure they would rush through a nomination and a confirmation. They'll have a candidate vetted and ready to be nominated.

I think the new Senate will be seated on January 2? That's 169 days away.

I wonder if this turn of events will motivate more Dems or Republicans in turnout for this upcoming election? Let's see how distasteful Trump gets in playing this news to his base.

I don't know why this would matter for anyone.

I would strongly suspect that anyone who bases their vote on the president's appointment of judges already knows who they are voting for and they knew it even before the candidates were known. These people are voting for a (R) or a (D) on the ballot. and batmags will be happy to know they probably aren't voting for Jill Stein.

[batmagadanleadoff]

If she died on December 30, with a Democratic Senate a few days from being seated, I'm sure they would rush through a nomination and a confirmation. They'll have a candidate vetted and ready to be nominated.

I think the new Senate will be seated on January 2? That's 169 days away.

I wonder if this turn of events will motivate more Dems or Republicans in turnout for this upcoming election? Let's see how distasteful Trump gets in playing this news to his base.

I don't know why this would matter for anyone.

I would strongly suspect that anyone who bases their vote on the president's appointment of judges already knows who they are voting for and they knew it even before the candidates were known. These people are voting for a (R) or a (D) on the ballot. and batmags will be happy to know they probably aren't voting for Jill Stein.

Speak for yourself. Or for your own favorite party. Things might've changed some during this election cycle but as of 2016, most Dems were pretty fucking clueless as to the issue of the judiciary, even though it's probably the most important issue.

If Dems had even half a clue in 2016, there would've been a hell of a lot more hand-wringing and nose-covering while Dems reluctantly pulled the lever for Hillary -- and given Trump's microscopic margin of victory and that the open seat on the Supreme Court was probably the decisive issue that sealed Trump's win, we'd have the first female president in the White House right now.

[nymr83]

I don't buy it. it's a talking point for the media who obsessively cover these things, not a genuine concern that most Americans think about. And again, those who DO care who is on the court are already voting for their chosen party.

[Ceetar]

I don't buy it. it's a talking point for the media who obsessively cover these things, not a genuine concern that most Americans think about. And again, those who DO care who is on the court are already voting for their chosen party.

Generally. Everyone knows that if you consider women to have rights, you can't vote for a republican, it's sort of baked in to the judicial question.