Where the Confirmation Process is Heading

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Nicholas
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Where the Confirmation Process is Heading

Post by Nicholas » 2018-08-14 09:10am

I saw the following article and its predictions struck me as both likely accurate and disturbing. So I thought I would share it.

https://www.theatlantic.com/politics/ar ... on/567422/
The Confirmation Wars Are Over

Partisanship won out—and the contagion is spreading.
Benjamin Wittes
6:00 AM ET


I have never lost a public debate more completely than I have lost the debate over judicial confirmations. For many years, across administrations of both parties, I clung to the increasingly minority view that each judicial nominee ought not be a skirmish in a larger war for the courts, that the Senate should tend to defer to the president in its exercise of the power to “advise and consent” on nominees, and that the Senate should treat nominees decently and without undue delays. I started arguing this position during the Clinton administration; I maintained it during the Bush administration; I wrote a book on the subject warning of the dangers of the erosion of norms surrounding confirmations.


I stand by everything I argued.

But those of us who argued for de-escalating what I called the “Confirmation Wars” got our clocks cleaned. We lost decisively—on every front and against every foe. We lost at the hands of Democrats and Republicans alike. We lost at the hands of interest groups. We lost at the hands of law professors. Perhaps most importantly, we lost at the hands of voters—party-base voters, to be precise—who demanded of their elected officials precisely the kind of activity of whose dangers we warned. In a democracy, voters tend to get what they want in the long run. In this case, it didn’t even take very long.


And so we come to a place where Brett Kavanaugh is preponderantly likely to be confirmed by the Senate, yet for all the wrong reasons. He will be confirmed not because he is well qualified to sit on the Supreme Court, though he is certainly well qualified. He will be confirmed not because he is a principled and talented jurist, though he is a principled and talented jurist. Indeed, he will be confirmed not because of any of his virtues, though he has many virtues.

He will be confirmed because there are 51 Republican senators in office and a Republican vice president who can break a tie if need be. While he may get a few Democratic votes, he will get confirmed—indeed, he will get a vote at all—because Republicans right now have the raw political power to confirm him on their own. That political constellation of power exists because people expect him to vote in certain ways on certain types of cases, to deliver certain specific outcomes on issues they care about. Democrats will oppose him for the same reasons. And here’s the rub: If the balance of power changes even a little bit before the vote on him takes place and Democrats somehow come into a working majority, then Kavanaugh will not be confirmed and might not even get a vote. Our partisanship over Supreme Court nominations is not yet perfect, but it is getting there fast.

Our debate about judges takes place in the language of principle. We pretend to debate judicial philosophies, when we all know there was no philosophical objection to confirming Merrick Garland. We pretend to debate whether a given dilatory tactic is legitimate or not, when everyone on both sides of the argument knows they will adopt the other’s arguments the moment power changes hands. We strike principled poses about what the Constitution requires of the Senate or what the Senate’s precedents allow, because we don’t like acknowledging that the only real principle at issue in the Senate’s treatment of judicial confirmations boils down to power—who has it and who doesn’t at any given moment in time.

Before exploring the implications of our contemporary environment with respect to the Senate and judicial confirmations, let me pause over two critical antecedent points. The first is that this situation actually is new. While America has seen ideological contest over the courts at various times in its past, we have never before in our history faced a reality in which our normative expectation was that the opposition party would oppose the average Supreme Court appointment of a nominee whose formal qualifications were not seriously questions—and block that nominee if humanly possible. We have never before faced a situation in which our working assumption was that Democrats would oppose all Republican nominees and that Republicans would oppose all Democratic nominees and that we would thus create partisan camps on every appellate court in the country. While the Robert Bork and Clarence Thomas nominations provoked sharp battles, the Anthony Kennedy, Antonin Scalia, and Sandra Day O’Connor nominations did not. And as recently as the Clinton administration, Supreme Court nominees were still being confirmed with near unanimity. Barring a dramatic shift in political climate, that’s all but unthinkable today.


The second point is that moral equivalence between the two sides is the only analytically serious way to understand our new reality. Neither side likes this point. Democrats and Republicans alike pretend that the escalations in the judicial confirmation wars took place entirely at the other side’s hands. They both see their own roles as primarily defensive, responsive to the other side’s aggression. They are both—the word is not too strong—lying, sometimes to themselves, sometimes to the public, sometimes to both.

In fact, both sides have incrementally escalated at every stage since at least the late 1980s. At no point did either step back and sue for peace. The erosion of the norm of a relatively modest Senate confirmation process took place because both sides calculated at every stage—probably rightly—that the other would take the next incremental escalatory step if roles were reversed. They calculated that base voters would sooner forgive escalation than they would forgive weakness. They calculated that they could get away with escalation. And they calculated that they could lie about what they were doing—flamboyantly and without shame—and get away with it. And so they did.

The search for the original sin is a mug’s game. Democrats opposed Robert Bork for ideological reasons and then held up some appellate court nominees during the first Bush administration. Republicans held up a lot of appellate court nominees during the Clinton administration, but stopped short of using the filibuster. Democrats during the second Bush administration used the filibuster to actually finish off nominees but stopped short of using it profligately—because Republicans threatened to go “nuclear” and change the rules to prevent the filibustering of nominees. The result was a temporary truce in which Republicans, for their part, stopped short of carrying out this threat. When Democrats controlled the Senate during the Obama administration, however, both sides switched and escalated; Republicans profligately filibustered and Democrats pulled the trigger on the nuclear option. They did this only for lower court nominees, however, leaving the filibuster rule in place for Supreme Court nominees. Republicans, in control of the Senate during an election year, held a Supreme Court seat open for the better part of a year to give themselves the chance of filling it. When they won the 2016 election, they ended the filibuster for Supreme Court nominees, too.

There are consequences to this protracted war. The most important is that the courts are, in fact, more ideologically divided than they used to be—and, more particularly, that those divisions track party lines more closely than they used to. As Lee Epstein and Eric Posner recently wrote in the New York Times:

The court has recently entered a new era of partisan division. If you look at close cases—5 to 4 or 5 to 3—going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side: The percentage of votes cast in the conservative direction by justices who were appointed by Republican presidents has also shot up.

Whether the war for the courts is more cause or effect of the increasing ideological uniformity of appointments is a complicated question. In all likelihood, cause runs in both directions. That is, we fight more over courts because of an increasingly ideological sense of how courts should operate, and in turn, our fights over the courts tend to entrench our increasingly ideological sense of how courts should operate. Whichever is cause and whichever is effect and in whichever proportion, however, the result is clear: Increasingly well-defined ideological voting blocs in the Senate are generating increasingly well-defined voting blocs on courts. This is clearest on the Supreme Court but is also coming into focus on some federal appellate courts.

In the world that I argued for, liberal senators would support Kavanaugh. They would do so because he is qualified, because the decision to give President Trump the authority to select judges was made when the electorate chose Trump over Hillary Clinton, and because the cost of opposing Kavanaugh—that Republican senators would oppose similarly qualified judges when the presidency is in Democratic hands—exceeds the possible benefits of opposition. This set of assumptions was driven by norms: not by law, not by the Constitution, not even by Senate rules. It was just the way things worked, because everything worked better if everyone behaved that way. And everyone behaved that way because everyone had confidence that those on the other side would behave that way as well.

Polarization put cracks in that confidence. And once people no longer believed the other side would observe the norm, the norm collapsed remarkably quickly.

Today, I have no good answer to a liberal who says he can’t support Kavanaugh because he lacks confidence that Kavanaugh will affirm Roe v. Wade. Why should he support a justice who won’t deliver the political results he wants? Similarly, I had no good answer to Republican senators who wanted to hold Antonin Scalia’s seat open to see what happened in the election. Why shouldn’t they have supported Mitch McConnell in freezing out Merrick Garland? Why shouldn’t their Democratic counterparts have sought to filibuster Neil Gorsuch out of some combination of retaliation and suspicion of Gorsuch’s ideological views? And why shouldn’t a Republican senator have then voted to deprive Democrats of the ability to do this? If Democrats retake the Senate in the fall, I fully expect them to confirm no additional justices over the remaining two years of Trump’s first term and to confirm almost no appellate court nominees either. I cannot make an argument that they should behave otherwise. If there are no rules, then there aren’t a lot of shoulds. There are only cans.

But here’s the problem: The breakdown of the norms that have traditionally induced restraint in the judicial-confirmation process will not end with the creation of polarized judicial nominations and confirmations. It will run deeper. A highly polarized Senate in interaction with a winner-take-all presidency picking judges on the basis of raw power alone and creating party factions on every court in the country is a contagion that will spread.

Already, in response to the retirement of Justice Anthony Kennedy and the nomination of Brett Kavanaugh, some Democrats have begun talking about court packing. And why not? There’s no magic to the number nine as the proper number of justices. Changing that number requires only an act of Congress. And while court packing has a disreputable flavor because of President Franklin Delano Roosevelt’s ill-fated effort at it during the Depression, it’s a perfectly sensible next step for either side in making sure the “balance” of the court is maintained so as to prevent erosion of “our” values. And hey, Republicans just “stole” a seat. Why not create two more by way of compensation? If what is happening in the confirmation process is okay—and we have evidently decided that it is—it is only a matter of time before one side or another tries this, too. Perhaps the Democrats won’t have the raw power to get this done any time soon. But eventually, one side will. And the pattern of escalation will continue—because again, the only thing stopping it from happening before was that it was unthinkable.

The contagion won’t even stop there. There are other powers that Congress has over the courts that it generally refrains from deploying to force jurisprudential outcomes that it likes or to impede outcomes it dislikes. Why not defund courts that rule in ways temporal majorities dislike, for example?

Come to think of it, most courts exist not by constitutional decree but because of acts of Congress. The Constitution created the Supreme Court, but it left the entire rest of the judiciary to Congress to “from time to time ordain and establish.” During the 1990s, conservatives pushed this idea of breaking up the famously liberal Ninth Circuit Court of Appeals. While it never came to fruition, it wasn’t unthinkable then and hasn’t been at other times in the past. And in an environment in which we all accept an overtly political understanding of the courts, why should it be unthinkable? Why not break up courts that routinely do things that political majorities don’t like?

Even the Supreme Court is not immune from a much more activist Congress. We tend to think of the Supreme Court’s jurisdiction as vast, but it’s only vast because Congress makes it so. The Supreme Court’s original jurisdiction, the jurisdiction Congress cannot touch, is actually pretty narrow. The Constitution limits it to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” As to “all the other cases ... the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The exact parameters of Congress’s power to strip the courts of jurisdiction are not well defined, partly because Congress has tended to avoid provoking confrontations over it. But that’s a norm of interbranch respect too. Why be so gentle? If Congress doesn’t want the Supreme Court to hear abortion cases, it could strip it of appellate jurisdiction over them—or at least, it could try.

In a world of polarized partisan control over the gateways to courts and thus partisan factions on the courts themselves, I can see no reason why these things won’t eventually happen. And I won’t even be able to make a principled argument that they shouldn’t happen.

Benjamin Wittes is the editor in chief of Lawfare and a senior fellow at the Brookings Institution.
The only thing I would add is that he doesn't consider the way in which the increasing power of the Supreme Court has driven this change. Today the Supreme Court is functioning as the chief legislative body in the United States and American voters are treating it as an indirectly elected legislative body.

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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-14 12:21pm

The Supreme Court isn't a legislative body and isn't really trying to be one, in my opinion. But it has been forced to resolve many issues that might have been addressed through Congress in other times, because the Congressional leadership is increasingly corrupt and incompetent.

I also do not care for the article's implication that Democrats and Republicans are equally responsible for the partisanship of the court (Republicans, for example, set the precedent of refusing to do their duty and hold confirmation hearings under a Democratic President), and for the suggestion that in a non-partisan environment, Kavanaugh should be appointed because he is qualified and appointed by an elected President. The legitimacy of Trump's Presidency is, in my opinion, very much in doubt, and that alone is ample grounds for refusing any nominee of his, particularly one who has made it clear that he believes that Presidents should effectively be immune to law enforcement while in office.

I do think we need, long-term, to work towards restoring the bipartisan credibility of the courts. But that will be a long process, and it won't be able to begin until the people responsible for the current crisis are unambiguously defeated.
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Re: Where the Confirmation Process is Heading

Post by Zixinus » 2018-08-14 02:30pm

In other words, until Jesus comes back and restores political debate levels to your liking.

If you consider stepping back unthinkable, so will the other side. If you consider the Other Side incapable of doing the same moral action, you are actively contributing to polarizing the political debate and demonizing the other. The other side also raised doubts about Obama's legitimacy that failed to be shown to have legitimate bearing. They could have (and probably did) use the same argument.

Thus political polarization will keep escalating until it moves beyond the legal space created for it, until the cancer of political polarization spreads to every mayor and minor organ of the state. Where institutions that were supposed to be politically neutral just won't be, that will sabotage the Other's efforts to govern (regardless for good or ill) while doing everything to entrench their own party.

It happened in my country and this is how we have the same party in majority power for three times in a row and shall have it for the fourth regardless what the people think.
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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-14 03:19pm

Zixinus wrote:
2018-08-14 02:30pm
In other words, until Jesus comes back and restores political debate levels to your liking.
No, until the current political climate changes, as has happened many times before through out American history.

But yeah, yeah. The current climate of partisan extremism can only get worse, never better, even though this country has literally gone through a violent revolution, a civil war, a great depression and two world wars, and emerged stronger and more united and more progressive on the other side each time.
If you consider stepping back unthinkable, so will the other side. If you consider the Other Side incapable of doing the same moral action, you are actively contributing to polarizing the political debate and demonizing the other. The other side also raised doubts about Obama's legitimacy that failed to be shown to have legitimate bearing. They could have (and probably did) use the same argument.

Thus political polarization will keep escalating until it moves beyond the legal space created for it, until the cancer of political polarization spreads to every mayor and minor organ of the state. Where institutions that were supposed to be politically neutral just won't be, that will sabotage the Other's efforts to govern (regardless for good or ill) while doing everything to entrench their own party.

It happened in my country and this is how we have the same party in majority power for three times in a row and shall have it for the fourth regardless what the people think.
Its going to be bad for a while. We'll get through it. Just like we did all those other times.

But do not tell me that the solution is to just be "bipartisan" and not "demonize" people who condone collusion, ban Muslims, and put little children in cages like animals. There are not "two sides" here. There is a side which largely respects, at least in theory, the existence of the rule of law and the institutions that accompany it. And there is a side that does not. Pretending that we can defuse the situation by being more civil to the other side or making concessions to them at this point is simply another name for surrender.

That doesn't mean we must or should throw all our principles out the window, and try to be even more viciously partisan than the other guy. That's why I argued against packing the Court the last time this came up, and took a lot of flack for doing it from board members who's views were less restrained. But saying "We should auto-block any of Trump's nominees" is, in my opinion, an action warranted by the circumstances we find ourselves in.

Its not even about party, really (except insofar as one party has been largely subsumed by bigotry and a cult of the leader). I'm not saying "Only appoint Justices who follow every line of the Democratic Party platform." Nor am I saying "Only appoint Justices who adhere perfectly to my views". I'm saying "Only appoint Justices who can be trusted to uphold the rule of law." If Robert Mueller (long-time Republican) were nominated to the Court, for example, I'd have no complaint- even though I'm certain I don't agree with him on every issue.

But if Justices who respect the basic principles of a nation founded on equality and the rule of law can be found only on one side of the isle... then who's fault is that?
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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Re: Where the Confirmation Process is Heading

Post by Zaune » 2018-08-15 07:06am

Zixinus wrote:
2018-08-14 02:30pm
If you consider stepping back unthinkable, so will the other side. If you consider the Other Side incapable of doing the same moral action, you are actively contributing to polarizing the political debate and demonizing the other. The other side also raised doubts about Obama's legitimacy that failed to be shown to have legitimate bearing. They could have (and probably did) use the same argument.
As always, the problem is that if one side takes a principled stand against using certain tactics, they are then at a disadvantage if the other side declines to reciprocate. It's bloody difficult to make a principled stand when you're up against people who will exploit your principles for their own gain.
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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-15 01:35pm

Zaune wrote:
2018-08-15 07:06am
Zixinus wrote:
2018-08-14 02:30pm
If you consider stepping back unthinkable, so will the other side. If you consider the Other Side incapable of doing the same moral action, you are actively contributing to polarizing the political debate and demonizing the other. The other side also raised doubts about Obama's legitimacy that failed to be shown to have legitimate bearing. They could have (and probably did) use the same argument.
As always, the problem is that if one side takes a principled stand against using certain tactics, they are then at a disadvantage if the other side declines to reciprocate. It's bloody difficult to make a principled stand when you're up against people who will exploit your principles for their own gain.
The flip side of which is, if we adopt every tactic of the other side in order to win, it ceases in some ways to matter who wins- democracy and the rule of law are dead either way. At that point its just two rabid dogs fighting over the carcass of what was America.

I'm always reminded of Bush's actions after 9/11 when these discussions come up, and of the irony inherent in telling people "You have to give up some of your freedoms in order to protect your freedoms from people who hate our freedoms."

Besides which, there can be a pragmatic advantage to a principled stand. "The moral high ground" is not just empty words- how you are perceived matters in politics, and even in war- that's why they have propaganda.

I think you can be strong without being unprincipled. Indeed, taking a principled position and sticking to it requires great strength and courage, strength and courage which the Democratic leadership has often lacked. The most frequent criticisms of the Democratic Party from within the Left relate to us being a party of compromise, not our being too principled. But I think people often conflate "We should not be weak and compromise on everything" with "We need to be as extremist as the Republicans, and adopt their tactics, in order to win". They're two very different questions. We can be principled without being fanatics, and we can be partisan without being corrupt.

I do think that its reasonable for us to block Trump's judicial appointees for the reasons I stated (that the legitimacy of Trump's Presidency is in question, that justices he appoints may end up ruling on questions related to whether he becomes President, and also because Trump is actively engaging in a campaign to subvert the rule of law in America). It may escalate partisan conflict in the short-term, but I don't think it would set the negative long-term precedent that Court-packing would, for example. But ultimately it is simply trying to keep Trump from stacking the deck further, rather than trying to stack it in our favor. Its not even a partisan move, really, though it has that appearance- I'm not saying "block Kavanaugh because he doesn't follow the Democratic Party platform/isn't a Democrat". I'm saying "block Kavanaugh because he's the tool of a corrupt fascist."
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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Re: Where the Confirmation Process is Heading

Post by Zaune » 2018-08-15 02:20pm

The Romulan Republic wrote:
2018-08-15 01:35pm
The flip side of which is, if we adopt every tactic of the other side in order to win, it ceases in some ways to matter who wins- democracy and the rule of law are dead either way. At that point its just two rabid dogs fighting over the carcass of what was America.

I'm always reminded of Bush's actions after 9/11 when these discussions come up, and of the irony inherent in telling people "You have to give up some of your freedoms in order to protect your freedoms from people who hate our freedoms."

Besides which, there can be a pragmatic advantage to a principled stand. "The moral high ground" is not just empty words- how you are perceived matters in politics, and even in war- that's why they have propaganda.
To a point, yes. But winning a bunch of moral victories while the other side wins the majority of the material victories gets you nowhere fast. Especially if nobody gets to hear your side of it because the other guys are better at propaganda than you.
I do think that its reasonable for us to block Trump's judicial appointees for the reasons I stated (that the legitimacy of Trump's Presidency is in question, that justices he appoints may end up ruling on questions related to whether he becomes President, and also because Trump is actively engaging in a campaign to subvert the rule of law in America). It may escalate partisan conflict in the short-term, but I don't think it would set the negative long-term precedent that Court-packing would, for example. But ultimately it is simply trying to keep Trump from stacking the deck further, rather than trying to stack it in our favor. Its not even a partisan move, really, though it has that appearance- I'm not saying "block Kavanaugh because he doesn't follow the Democratic Party platform/isn't a Democrat". I'm saying "block Kavanaugh because he's the tool of a corrupt fascist."
Agreed, but there'll be retaliation of some sort.
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Re: Where the Confirmation Process is Heading

Post by Zixinus » 2018-08-15 06:32pm

But yeah, yeah. The current climate of partisan extremism can only get worse, never better, even though this country has literally gone through a violent revolution, a civil war, a great depression and two world wars, and emerged stronger and more united and more progressive on the other side each time.
There is no gurantee that it will do so this time. Or that it will do it in a way you consider positive.
But do not tell me that the solution is to just be "bipartisan" and not "demonize" people who condone collusion, ban Muslims, and put little children in cages like animals.
Did I say that? No I did not. I am not saying that both sides are utterly equal. No sir, I am not drinking that South Park golden-mean-fallacy bullshit.

But you are still ignoring the real point the article makes. This is not a contest who has the highest moral horse. That's academic to the real point at hand, which is thus: this is an indication of a falling spiral. It is spiraling higher and higher, and the very conviction of "we are in the right, they are in the wrong, any friendly action is wasted and will be reciprocated, only hostility is permitted until they surrender" attitude of yours is causing it because the other side has the exact same thing, following the exact same strategy.

This is a train wreck in the making and you know it. If there is any solution, it is not going to be found in just shrugging and blindly doing the same thing that's causing the problem. Even if there is no other action possible in the short term, the problem needs to be realized and accepted before a real solution can be formed.
As always, the problem is that if one side takes a principled stand against using certain tactics, they are then at a disadvantage if the other side declines to reciprocate. It's bloody difficult to make a principled stand when you're up against people who will exploit your principles for their own gain.
Which is why this is a terrible catch-22 situation. I do not have easy solutions here. I am openly wondering what the solution could even be. I am just sure that continuing doing the same thing that is causing it is not the solution.
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Re: Where the Confirmation Process is Heading

Post by B5B7 » 2018-08-16 02:34am

The nature of the opposition is important when choosing how principled to be in your stand.
When Gandhi used civil disobedience against the British to gain independence for India it worked because the British were basically decent.
Contrast this with a possible different scenario as envisaged by Harry Turtledove in his short story The Last Article.
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Re: Where the Confirmation Process is Heading

Post by Nicholas » 2018-08-16 07:44pm

The Romulan Republic wrote:
2018-08-14 12:21pm
The Supreme Court isn't a legislative body and isn't really trying to be one, in my opinion. But it has been forced to resolve many issues that might have been addressed through Congress in other times, because the Congressional leadership is increasingly corrupt and incompetent.
I don't know what the judges on the Supreme Court or trying to do and I agree that the Supreme Court is not a legislative body. However, I do think that it is acting like one. In the last year it said that States could force internet sellers with no presence in the state to collect sales tax, it said government unions could not force everyone their contracts covered to pay them agency fees, it said states could legalize sports betting, and it mostly left the process of drawing congressional districts alone. Pick any term in last couple of decades and you can find several cases like these, cases where the court is implicitly claiming that almost anything the legislature can do it can do too (the only exception I am aware of is it has never tired to raise taxes).

You say it is being forced to address things that at other times might be addressed through Congressional action because of Congressional corruption and incompetence but that manifests by Congress not doing anything about an issue and when Congress does nothing about an issue that could be corruption and incompetence or it could be the result of a legislative deliberation which concluded that the status quo should be left in place (of the four decisions I listed above I think the last three reflected Congressional support for the status quo). If the court is decided which of these two possibilities occurred then it is functioning as a legislature.

The Romulan Republic wrote:
2018-08-14 12:21pm
I do think we need, long-term, to work towards restoring the bipartisan credibility of the courts. But that will be a long process, and it won't be able to begin until the people responsible for the current crisis are unambiguously defeated.
Zixinus wrote:
2018-08-15 06:32pm
Which is why this is a terrible catch-22 situation. I do not have easy solutions here. I am openly wondering what the solution could even be. I am just sure that continuing doing the same thing that is causing it is not the solution.
I think the key step toward any solution to the issues you both recognize will be to lower the stakes of court appointments. If you look at history the current power of the Supreme Court is an aberration. The court has usually been far more deferential to the legislature and far less willing to overturn longstanding law then it is today. The current problem results from the fact that since the 1950s the Court has served as the vanguard for the massive cultural shift we have experienced and in so doing has consolidated a lot of power. The last time it was really slapped down was when FDR proposed his court packing plan. People tend to say it failed, but his goal was not to increase the court to 15, his goal was to get the New Deal declared constitutional by the court. Two months after he proposed to increase the size of the court the court started upholding New Deal legislation. This was commonly called "the switch in time that saved nine." https://en.wikipedia.org/wiki/The_switc ... saved_nine

If the court is a technocratic body that applies the Constitution to new cases and accepts the legislatures public policy decisions then you just need competent people on the court and and they can easily be approved by bipartisan majorities (as happened as recently as the confirmation of Antonin Scalia). As long as almost every major act of the legislature is going to require the approval of the Supreme Court before it goes into effect and every law is subject to being overturned at any time then the nomination of Supreme Court justices will remain a vicious partisan process because the Supreme Court is functioning as the supreme legislative body.

I don't know a quick fix to this although my preferred would be to give the legislature the ability to override Supreme Court decisions on the same basis as it can override a Presidential veto. In practice I expect that this problem will eventually take care of itself. As the article says, Congress does have the power to force the Supreme Court to yield, once that power starts being used freely, as I expect it will in the next couple of decades, the Supreme Court will become much more deferential to the Legislature.

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Re: Where the Confirmation Process is Heading

Post by Simon_Jester » 2018-08-17 10:47am

What it comes down to is that there are periods of polarization in a nation's politics, and periods of consensus. Once a period of polarization has begun, it must be resolved before there can be consensus. A supermajority of the population has to say "you know, you're right, we should be on this side of the debate," so that the nation can move on to other issues where bipartisan consensus can exist.

The US is strained almost to the breaking point by the sheer width of the divide between the kind of social-democratic policies that sustain most other developed nations, and the right-wing policies advocated by an alliance of factions that have so far proven very good at leveraging their numbers to maximum political effect. Until this divide is resolved, we will remain polarized. After it is resolved, some old institutions may be repaired, or may have to be reconstructed to be viable in the new political climate.
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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-17 05:43pm

That's pretty much my sense, too- we're past the point where we can simply talk nice, make some fair compromises, and achieve a bipartisan resolution. We're at the point where the current crisis can likely only be resolved by a decisive victory for either progressivism or fascism, such that whichever wins becomes the national consensus for at least a generation- whether that's through decisive legal and electoral victories which keep the Right in check until changing demographics render it irrelevant (the optimistic outcome), or an actual armed confrontation (the worst case scenario).
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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Re: Where the Confirmation Process is Heading

Post by Zaune » 2018-08-17 06:12pm

Respectfully, and as bad as it would undoubtedly be, I think armed confrontation is the second-worst case scenario. The absolute worst outcome is the one described in The Last Article mentioned above, where the progressive side keep on insisting on a policy of unconditional non-violence right up until the purges begin, by which time it's too late.
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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-17 06:58pm

Zaune wrote:
2018-08-17 06:12pm
Respectfully, and as bad as it would undoubtedly be, I think armed confrontation is the second-worst case scenario. The absolute worst outcome is the one described in The Last Article mentioned above, where the progressive side keep on insisting on a policy of unconditional non-violence right up until the purges begin, by which time it's too late.
The merits of violent conflict is not really the topic here, and in hindsight I probably should not have alluded to it, even in passing. But since its come up:

The worst case scenario would certainly be a crushing victory for fascism (that or things somehow going nuclear, I suppose). And if its ever a choice between that and rebellion, I will choose rebellion. My position is not and has never been "unconditional non-violence". But in addition to my moral opposition to unnecessary violence, and my desire not to see people getting shot in the streets, I think that it would be a catastrophic error for the Left to do anything that could be perceived by moderates as being the aggressor, instigating violence, or "firing the first shot." I again cite the US Civil War-a situation where I consider the use of force to suppress the slave-holding traitors to be absolutely justified and necessary-but where Lincoln took great care to make sure that the South were the ones who fired the first shot at Fort Sumter. Not only due to the moral and legal considerations, but because if the North had begun the war, he'd have probably lost all of the border states, and with them DC and the war.

Now, obviously the situation today is not identical- in fact in some ways our situation is considerably less dangerous and volatile now. But I think that there's a very valid point to be learned here. And I am deeply skeptical that those progressives and anti-establishment types who think we should start shooting now have superior political and strategic instincts to Abraham Lincoln. The problem is: how do you prepare people for the possibility of violent conflict without emboldening/inciting people who are looking to start a conflict? In theory, the idea of preparing and arming and organizing so that we're prepared if things ever do reach that point has merit- so that, as you say, its not too late by the time a conflict starts. But militia movements tend to escalate things, and attract trigger-happy fuckers who are looking for an excuse to start shooting. And that risks starting a fight we didn't need to have, and it risks putting progressives in the position of the aggressor, and losing the support of more moderate liberals and progressives who are not in any way Trumpers, but are not yet prepared to condone violence- people such as myself, in other words.

Because I guarantee you that the percentage of people on the Left right now prepared to take up arms is not large enough to actually have a hope of winning, if they cannot win broader support. And one of the few things worse than a war, is a pointless and unwinnable war.
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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Re: Where the Confirmation Process is Heading

Post by Zaune » 2018-08-17 07:55pm

The Romulan Republic wrote:
2018-08-17 06:58pm
The worst case scenario would certainly be a crushing victory for fascism (that or things somehow going nuclear, I suppose). And if its ever a choice between that and rebellion, I will choose rebellion. My position is not and has never been "unconditional non-violence". But in addition to my moral opposition to unnecessary violence, and my desire not to see people getting shot in the streets, I think that it would be a catastrophic error for the Left to do anything that could be perceived by moderates as being the aggressor, instigating violence, or "firing the first shot." I again cite the US Civil War-a situation where I consider the use of force to suppress the slave-holding traitors to be absolutely justified and necessary-but where Lincoln took great care to make sure that the South were the ones who fired the first shot at Fort Sumter. Not only due to the moral and legal considerations, but because if the North had begun the war, he'd have probably lost all of the border states, and with them DC and the war.
You're not wrong, but in this situation the balance of power goes the other way. The regressive/fascist/whatever the fuck Trump's ideology counts as faction are the ones in power: They don't have to become the aggressor or incite revolt, they just have to get their own people into enough important posts that there's nobody senior enough to say no. Fortunately that's easier said than done, at least without fighting far dirtier than they've dared so far.

And not being seen to fire the first shot isn't worth letting innocent people die, and if the uncorrupted parts of the US government can't hold back the tide then it might well come down to that at some point. What are US progressives supposed to do if and when the Shitkicker County Sheriff's Department mounts a machine gun on its SWAT truck, wait for them to hose down a Black LIves Matter protest march and create a literal smoking gun?
Now, obviously the situation today is not identical- in fact in some ways our situation is considerably less dangerous and volatile now. But I think that there's a very valid point to be learned here. And I am deeply skeptical that those progressives and anti-establishment types who think we should start shooting now have superior political and strategic instincts to Abraham Lincoln. The problem is: how do you prepare people for the possibility of violent conflict without emboldening/inciting people who are looking to start a conflict? In theory, the idea of preparing and arming and organizing so that we're prepared if things ever do reach that point has merit- so that, as you say, its not too late by the time a conflict starts. But militia movements tend to escalate things, and attract trigger-happy fuckers who are looking for an excuse to start shooting. And that risks starting a fight we didn't need to have, and it risks putting progressives in the position of the aggressor, and losing the support of more moderate liberals and progressives who are not in any way Trumpers, but are not yet prepared to condone violence- people such as myself, in other words.

Because I guarantee you that the percentage of people on the Left right now prepared to take up arms is not large enough to actually have a hope of winning, if they cannot win broader support. And one of the few things worse than a war, is a pointless and unwinnable war.
Damned if we do, damned if we don't. But I don't think we can afford to let the other side have a monopoly on trigger-happy fuckers who are looking for an excuse to start shooting. Better to have them inside the tent pissing out, as the saying goes.

*sigh* Remember when even talking about this made everyone think I was a paranoid lunatic?
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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-17 08:35pm

I'm quite content to let the other side have a monopoly on trigger-happy lunatics, actually. We don't need nutbags who are just looking for an excuse to BURN IT ALL! Even if it came to fighting, we would have more need for people who are committed, and disciplined, and won't start killing our allies for not being ideologically "pure" enough. Ultimately, if it were to come to widespread violence, we would need the support of people in law enforcement/the intelligence community/the armed forces, and that we will not have if we are perceived as the aggressors.

If it does ever come to that... then to be blunt, yes, we do need to the let the other side fire first. The alternative is to engage in an act of preemptive aggression which will alienate people who's support we need, and pragmatic arguments aside, I will NEVER condone preemptive strikes based on the fear that if we don't hit first, it might be "too late". Because once you start thinking that way, you can justify almost any act of aggression, on the grounds that something bad might happen if you don't hit first. If we'd thought that way during the Cold War, there probably wouldn't be an America or a Russia now, and this whole conversation would be moot. And if the Left isn't okay with a war of aggression against Iraq or Iran because they might someday use a WMD on us if we don't hit them first, we sure as hell shouldn't be okay with a preemptive strike against our own country and fellow citizens.

Your point about the difference in the balance of power compared to the North in the Civil War has some merit, but is perhaps overstated. First their are the political checks- elections, the judiciary, opposition in Congress, etc. But even if those failed, the Trumpers would not, in fact, have a monopoly on military/law enforcement power in this country. There are many state governments which are Democratic, and there are many in the upper levels of the military and intelligence community who are deeply dissatisfied with Trump. Do you imagine that if Trump began having dissidents rounded up and shot, for example, that the government of, say, Vermont or California would order their state National Guards to willingly assist him in that? Not unless political opposition to Trumpism collapses absolutely, in which case you wouldn't be able to win a revolt anyway. Those are the people who's support we would need, in such a scenario.

For that matter, this is straying somewhat off-topic, but as a matter of historical interest, Lincoln's advantage in political and military power at the start of the Civil War was much less than you seem to think. Lincoln by no means had unanimous political support in the North, much less in the border states. The North had a theoretical advantage in population and industrial capability, but it took time to mobilize (large permanent standing military forces weren't really a thing in America until WW2). It was made even worse by the fact that the officers in the US military at the time were disproportionately Southern sympathizers, leading to numerous resignations, defections, and infiltrations of the military at the start of the war. So Lincoln was not acting with restraint because he was in a position of strength and could afford to do so. At the start of the war, he was acting with restraint because his position was exceedingly vulnerable, and the overwhelming superiority the Union ultimately attained in troops and firepower can be somewhat misleading.
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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Re: Where the Confirmation Process is Heading

Post by The Romulan Republic » 2018-08-17 08:51pm

Delayed edit: To be clear, I'm not saying your concerns are entirely baseless, or that there is no point where it might be necessary to use force to defend against a totalitarian government. My view is simply that: a) there is a moral obligation to try all other alternatives first, short of letting mass-murdering tyrants win; b) that if fighting does become necessary on a large scale, it will be necessary to have support from people outside the radical Left; and c) that trigger-happy militia types tend to be unreliable allies.

That said, although I remain opposed to organized violence at this point, or to violence in pursuit of a political objective, I do support the right to self-defence on an individual level. If an Alt. Rightist pulled a gun on a crowd at a rally or something, or drove a car into a crowd like in Charlottsville, and someone exercised their right to self-defence within the law and shot him, I would have no objection beyond regret that it was necessary. And I do think it may be prudent for Leftists and members of vulnerable groups to be armed and trained in the use of arms, provided they use them only as permitted within the law.

Also, this is going rather off-topic. If you wish to continue the discussion, I'd be happy to do so by PM.
"Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy." - Lincoln.

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