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Friday, September 18, 2020

THIS IS A TERRIBLE DAY

The death of Ruth Bader Ginsburg is an incalculable tragedy. I will leave it to others more knowledgeable than myself to talk about her legacy. Trump and McConnell will do everything in their power to replace her now with the most right wing justice they can find. We need four votes from the Republicans to block that. Murkowski perhaps, Collins almost certainly since to do otherwise would condemn her to certain defeat, Romney conceivably, leaving us one vote short under the best of circumstances.


What can a President Biden do?  The obvious answer is expand the court.  Two additional justices would create a six – five balance with the Chief Justice, as now, sometimes coming over to the liberal side. I think Biden would have no choice but to move for such an expansion because he would face a revolt from his own party if he failed to do so. That along with the death of the filibuster would create the possibility for some sort of liberal legislation.  


This is so bad that I find it difficult to think clearly about the path forward. All we can do is make sure that Biden is elected and then try to repair the terrible damage that will be done before he takes office.

32 comments:

David Palmeter said...

Enlargement may be the only solution, but it will put the cap on total politicization of the judiciary, something that has always been present, but never to the degree of the last 40 or so years. There were always “liberal” and “conservative” justices on the Supreme Court, but they were not always as predictable as they are now.

Roe v. Wade, the most controversial decision of the last half century, was written by a Nixon appointee (Blackmun), concurred in by two other Nixon appointees (Burger and Powell), two Eisenhower appointees (Stewart and Brennan), one FDR appointee (Douglas) and one Johnson appointee (Marshall). The two dissenters were a Nixon appointee (Rhenquist) and a Kennedy appointee (White).

I don’t know if students of the Court could have predicted the result, but the one thing that they couldn’t do to predict how a particular Justice would vote was to look at the party of the President who appointed him. Now it’s the first thing I want to know about any Federal Court decision in the news—and it’s one of the first things reporters write, whether the decision is from a single District Court judge, a three judge panel of a Circuit Court of Appeals, an en banc hearing of the entire Court of Appeals, or the Supreme Court.

People no longer have faith in the objectivity of the judiciary. And people are correct—they shouldn’t have confidence in the objectivity of the judiciary. The Federalist Society is riding high, and the country has lost a great deal.

David Palmeter said...

You can add Grassely to those who would oppose a Trump appointment. He has said that he agreed when Garland was nominated that the seat should be filled by the next President, and the same would be true now.

RFGA, Ph.D. said...

'(Hoping RBG also departs this earth soon.)' RFGA, Ph.D., Philosopher's Stone, 9/16/'20. Boy that was quick. I've always known that God loves me; but I never figured I had that kind of spiritual clout.

Dean said...

The tragedy is in no way incalculable. This is melodramatic rhetoric.

What disturbs me is that virtually every story about her death so far proceeds immediately to entertain the political tactical posture that emerges from her passing. As if she were not a person, a scholar, a "public intellectual," a figure whom some folks claimed to have adored, even loved. But when she kicks the bucket, we shift into utility mode. 'How can we possibly play this game under the present political circumstances?!"

Jesus Christ, Americans are so fucking stupid and heartless.

Unknown said...

I have been gone from commenting on this site for some time. When I did comment, I often railed against the foolish Sanders supporters who sulked about his loss of the nomination to Hillary Clinton and,. out of vindictiveness, refused to vote in the 2016 election. Many of them, I assume were women, whose cause Justice Ginsburg championed. Many were supporters of freedom of choice, whose cause Justice Ginsburg championed. As I said then, and will repeat, your chickens have come home to roost, and you will continue to rue the day you stayed home, rather than being able bring yourselves to vote for Hillary Clinton. You are now in for a terrible 30-40 years of backlash from the soon to be conservative majority on the Supreme Court. Although your past mistake cannot be undone, and nothing can now salvage the Supreme Court from the clutches of the current President, who you in your self-centeredness helped to elect, do not repeat your mistake by refusing to vote for Biden, because he is too old; or because he is too moderate; or because he is not Bernie Sanders. You will only make things worse, and, God forbid, you will help to re-elect this maniacal demagogue who will only destroy the remnants of the Republic we have left.

MS

RFGA, Ph.D. said...

So you want American citizens to elect senility to the highest office in the land. No wonder you wish to remain unknown. 'Maniacal demagogue' seems a bit redundant, too. Not to mention false: those of us rejoicing over Witch Ginsberg's death and planning to vote for DJT, do so OUT OF A LOVE FOR BABIES, whom, as real men and women, we are compelled to protect. God damn Roe vs. Wade to the fire of Hell!

Unknown said...

It was the ludicrous and asinine comments from the far left and far right (Prof. Wolff’s insights excluded), like that of RFGA, “Ph.D. (“Full of dumdness”?), which discouraged me from reading or contributing to this blog for several years. I see that not much has changed. RFGA, why don’t you crawl back into the rathole of ignorance you emerged from. (Yes, I know, I have violated the rules of civility which Prof. Wolff favors, but some people need to be kicked in the balls.)

Michael said...

It's gotten to the point where the comments of RFGA, Ph.D. are the opposite of interesting, except perhaps to the extent that they invite us to speculate on the nature of his illness.

Basically, his comments follow a formula like this: Let "X" stand for that which commands the strongest and widest assent from minimally kind, cognizant, and socially and emotionally healthy human beings. Now assert the opposite of X.

Sure, it's mildly clever at first. But I'm sure a programmer of modest abilities could make my computer mimic it reasonably well. (Provided the programmer didn't object to the utter waste of time.)

Anyway, RIP RGB. God help us all.

Tarik said...

I’m pretty new to this blog, but I’ve been following it closely the last couple of months.

I wanted to ask a question to Prof. Wolff:

Sir, what do you think about the concerns that Trump and GOP might do some tricks right after the election and declare him as the winner, especially while the country is waiting on mail-in ballots to be counted. This option seems even more plausible if the cast-in ballots prematurely show favoring or ambiguous results towards Trump on election night. All of these possibilities could be further exacerbated if the GOP are able to appoint RGB’s replacement before the election.

Boris Dagaev said...

THe Holocaust was an incalculable tragedy. This is just a death of a government official. Please kindly get a grip.

Jerry Fresia said...

Unknown: If I understand you, you are saying that HRC, following the neoliberal regimes of Obama and Bill Clinton (to wit: NAFTA, TPP, private health care, expanding military aggression, supporting Wall St against Main St, allowing the torturers to go free, failure to raise the minimum wage to $15 per hour, doing nothing about student debt, and in fact, pressing to cut social security out of concern for the debt) and who offered nothing by way of policy that would excite the progressive base of the Democratic party otherwise known to you as Sanders' supporters who then stayed home out of vindictiveness. Further, for these vindictive people to have tipped the balance, there would have had to be not only more in numbers than the 4.5 million who voted for Gary Johnson (whom we assume, like Stein, "stole" votes from HRC but 4 times as many), there would have to be more than the 7 million who fell victim to voter suppression. How you know how many actually stayed home and of those how many out of vindictiveness and not simple disillusionment, is really amazing.

But I see your point: the election of Trump had nothing to do with the failure of HRC as a candidate nor neoliberalism or voter suppression, - nor even Comey and the "Russian attack on our democracy." You nailed it. It had to do with the vindictiveness of those who supported progressive change. Brilliant.

Unknown said...

Jerry,

Two years ago I submitted a detailed demographic analysis to this blog that demonstrated that the failure of Sanders supporters to vote at all is what tipped the balance in Wisconsin, Michigan, and Pennsylvania in favor of Il Duce. I am not going to reiterate that analysis here. And whether they stayed home out of vindictiveness or just disillusionment is irrelevant. Are they less disillusioned with the repugnant policies that Il Duce has managed to execute than they were with the status quo?

You continue to insist, as you repeatedly did two years ago when I was more actively engaged in contributing to this blog, that in the absence of the dramatic progressive changes that you and the Sanders supporters advocated for, that merely voting to sustain the status quo is not sufficient reason to vote at all – that if the progressive measure you yearn for cannot be achieved, then whatever the adverse consequences of a conservative victory, they are no worse than merely continuing the status quo. I believe this is an utterly foolish and selfish perspective, and has yielded the most retrograde, fascistic leader this country has ever seen, and it could get far worse. Il Duce, via the machinations of McConnell, is likely to get the conservative appointment to the Supreme Court he wants – I would not depend on Collins or Graham to do what is best for the country – they haven’t up to now. So, even if Il Duce is defeated, we will have lost a liberal Supreme Court for a generation, and it will retrench from the progressive decisions of the past 60 years with a vengeance. And if Biden does not win by large margins in the industrial states of the Midwest, Il Duce will do everything in his power to stay in office. He will cast doubt on the results in any of the red states that Biden wins, and he will call on his base to take to the streets to keep him in power. He will send in federal enforcement personnel to quell protests and dissent. And William Barr, the sycophant of all sycophants, will gladly do his bidding. There is likely to be blood in the streets. So, no, I adamantly insist that often preserving the status quo is far better than the alternative.

MS

Ecrasez said...

Puzzled Brit here. What’s the rush for Trump? Why does he have to appoint before the election? Surely he’s still President until January, even if he loses? Over here we change prime ministers from the instant the loser concedes. If the incumbent loses, they’ll have had the removal vans ready and they have to be out of downing street by the morning. Both systems have their advantages and dis-, with the US system maybe being more appropriate for a superpower where continuous government is important (no one cares that the UK effectively has no pm for the first month while the winner finds their feet - to be honest, they could take a year off and most people wouldn’t notice). On the other hand, the US system should in theory encourage friendliness between the parties, since the President and the President-elect share a building for two months. That maybe hasn’t panned out that way in practice. But have I misunderstood? Am I right to say Trump is still President until January even if he loses?

Robert

Ecrasez said...

@RFGA. I know, it’s so hard to get the medication during lockdown. You have my sympathies.

David Palmeter said...

Jerry,

I don't get the point of arguing about HRC' shortcomings when the the binary choice was between her with her shortcomings and Trump with his. For all of her husband's shortcomings, he put Ginsburg and Breyer on he Court. In 2000,Al Gore's perceived flaws led enough people to vote for a third party candidate, giving us Roberts and Alito on the Court and a war in Iraq. There hasn't been a presidential election in my lifetime when the major party candidate on the left wasn't preferable to the one on the right, and when vote for a third party candidate on the left was nothing more than a vote for the major party on the right. If I voted in Maine today, with its ranked choice voting, that wouldn't be the case. But everywhere else in the country, it was and is.

Unknown said...

Ecrasez,

Yes, he remains President until his successor is sworn in on January 20, 2021. In the meantime, even if Il Duce concedes the election – which is rather unlikely – he can wreak a lot of havoc during the inter regunum. And Il Duce will surely wreak as much havoc as possible. For example, let’s say the Democrats don’t win the Senate, then a Republican controlled Senate can still nominate a conservative to replace Justice Ginsburg. The Republicans would not be likely to do that if Biden wins, since they will recognize that such a maneuver is totally unprecedented and in bad taste? I wouldn’t bet on it. The Republicans are so intent on overturning Roe v. Wade that they would engage in the most unscrupulous tactics to achieve a conservative majority on the Supreme Court. Moreover, claims that Collins and Graham, out of their own self-interest, would not approve a new appointment before the election – even assuming this were true – would not inhibit them from doing so between November 3, 2020, and January 19, 2021, if they are re-elected.

MS

Eric said...

@DavidPalmeter, yeah, I'll believe Chuck Death Panels Grassley when he says he's going to do something that sounds principled only after I've seen him actually do it. Same with the Romneys and the rest.

Wrt expansion of the Court, it will never happen so long as the current cast of characters, in both parties, are running Congress. Biden's also said he opposes it. (I wouldn't put it past the Republicans to try to do it to their own advantage when they get both Houses & the White House again, though, now that some on the left have raised the subject.)

@Unknown/MS, that's some outstanding voter outreach you're doing there. Makes Stein voters like me want to just run out and vote for all the candidates you support. Keep up the good work!

@Ecrasez, yes, the next president's term does not begin until he is sworn in on 20 Jan 2021. So Trump will be in charge of the nuclear codes, and able to sign bills, issue vetoes, define Executive Branch policy through executive orders, and make recess appointments to federal offices, including federal courts, until then, even if he loses the election. If Trump loses, the president-elect will have no formal powers as president until after inauguration.

One reason the Republicans might be in a rush to make an appointment is to help with their campaign fundraising and to excite conservatives who might have been feeling lukewarm about whether to participate in this election at all to turn out. The prospect of securing safe majorities on the courts has tended to motivate Republican-leaning voters more than Democratic-leaning ones. Democratic-leaning voters may say they care about gun control and abortion rights, for example, but they don't tend to turn out and vote on those single issues with the same kind of fervor as many Republican-leaners do.

Unknown said...

Boris Dagaev,

I have to take issue with your minimization of the significance of the death of Justice Ginsburg for the future prospects of justice in the United States. Yes, of course, the Holocaust was an incalculable tragedy. But the Holocaust did not occur overnight. It started with a discontented German populace, suffering under the sanctions imposed on them by the WWI victors and their yearning for making Germany great again. Then Bismarck appointed Hitler – whom he hated - as Chancellor, in order to appease a disgruntled populace. In this he was supported by the German elites, who thought that Hitler was just a stupid rube whom they could control. But they were wrong. Then one thing led to another, and Hitler, feeding his countrymen’s yearnings to restore Germany to it pre-WWI glory – to make Germany great again – embarked on his megalomaniacal European conquests. And then came the Holocaust. So, while Justice Ginsburg is not as tragic as the Holocaust, regardless who wins the election it could turn out to be the first event that results in a conservative domination of the Supreme Court, which in turn results in the overturning of Roe v. Wade, which for many women in this country could have devastating consequences for their future economic welfare. And then there will be more conservative decisions to come – perhaps overturning the Miranda ruling; overturning gay marriage. Who knows? And if, God forbid, Il Duce gets re-elected, Justice Ginsburg’s death will be the first ill omen of a chapter in American history the likes of which this country has never seen.

MS

Unknown said...

Historical blunder. Hindenburg appointed Hitler Chancellor, not Bismarck, who was long dead,

MS

jeffrey g kessen said...

I have a certain weakness for, "Anonymous" and "Unknown". They have there own web-site, you know. Very discrete.

David Zimmerman said...

I do not think that "Anonymous" and "Unknown" posts [or "Pseudonymous"posts, for that matter] should be allowed on this site.
Identify yourself accurately or hold your peace.

Jerry Fresia said...

David and Unknown,

You are confusing me with someone else. I have never argued in favor of sitting it our or voting Green. My position always has always been strategic, especially with Trump running; i.e., vote against Trump period.

My point simply is that neoliberal policies - not disgruntled leftists or Sanders supporters - explain the rise of Trump. Perhaps the more interesting point is that neoliberals are behind each party. Party coalitions are coalitions organized by capital to gain control of government and at this point finance capital is in the driver's seat across the board. The divisions within the ruling class aren't sharp enough yet to yield truly distinctive policy differences. For example, The distinction long ago between the policy interests of northeast, international capital vs the interests of south and southwest national capital was responsible for creating sharper policy agendas between the two parties in the 50s, 60s. But those days are gone. Notice the lack of policy articulation by both parties today. The old trope is true: we are now experiencing one party (with two wings) rule and that is apt to fuel a legitimation crisis, greater disillusionment,and more hostile and extreme polarization between each party's so called base.

Unknown said...

It is not surprising, RFGA, the self-proclaimed “Ph.D.” that given your analytical inadequacies you are an admirer of Anselm, whose circular ontological argument proved no more than that something necessarily exits, but hardly proved the existence of an anthropomorphic deity akin to that described in the scriptures. And regarding your addled belief in the efficacy of your curses, you apparently never learned that correlation does not equate to causation. Was your purported “Ph.d.” awarded by Il Duce University? Farewell, and good riddance.

MS

Sparks said...

It does look as though they'll push a nominee through quickly. Win or lose the coming election, Trump is almost certain to solidify his legacy for decades on judicial appointments alone. Sans a miracle, I don't see much stopping him.

@Unknown

Progressive, Sanders supporter here! And, like Prof. Wolff, inveterate Marxist, if it helps add to my ignominy. Needless to say, I take issue with your characterization of Sanders' supporters. But on this much we agree: it's only pragmatic to support the liberal candidate when the alternative is "Il Duce", as you've affectionately nicknamed Trump.

Rest assured, me and mine have been and will be knocking on doors for Biden this fall as we did for Sanders last spring and Clinton four years ago!

Sparks said...

Ah, a casualty of writing in haste: By "knocking on doors", I mean canvassing in general, though all virtual/phone banking this cycle!

Anonymous said...

"The death of Ruth Bader Ginsburg is an incalculable tragedy."

Seriously?

Unknown said...

Sparks,

You mistook my point. I am not, and was not, disparaging Sanders supporters. I in fact voted for Sanders in my state’s primary in 2016. I take issue with the Sanders supporters, who, unlike you, decided not to vote at all in the 2016 election (or who, inexplicably voted for Il Duce) because they despised Hillary, or thought her too closely aligned with Wall St., or not progressive enough, etc. etc. As I said in a prior post above, I have studied the primary election returns in Wisconsin, Michigan and Pennsylvania, and had all of the people who voted for Sanders in the 2016 primaries in those states, voted for Hillary in the election, she would have carried those states. I also preferred Bernie, but realized that, as between Hillary and Il Duce, there was no comparison. So, I applaud you for canvassing for Hillary in 2016, and for your willingness to do so again for Biden. I only pray to God that most of the Sanders supporters this year do not repeat their mistake of 2016.

MS

Michael said...

Minor, off-topic observation: It actually is possible to be a non-bigoted non-buffoon while also finding something of value in Anselm. Charles Hartshorne, author of Anselm's Discovery, has some relevant comments - not that they're clearly air-tight and unproblematic (I think they need some clarifying and qualification), but still, they're incomparably more decent and humane than what the other side normally offers:

"Debates about abortion, or about evolution versus creation science, so-called, show what happens when a population lacks the philosophical culture to deal rationally with such absurd claims as that a fetus lacks nothing of what makes mature human persons important, compared even to whales or gorillas. Or that religion should worship a book written, translated, interpreted by people as the very voice of God."

"If abortions are sad affairs, unwanted and badly treated offspring are likely to help fill prisons with criminals. Pearl Buck objected to abortions that the aborted might be a potential genius; she neglected to mention that it might be a potential Hitler. The definition of person as 'human being' involves, even though perhaps unconsciously, a lack of intellectual honesty. Similarly fraudulent is the vague term 'pro-life' - mosquitoes are alive, as are bacteria. Persons in the full sense who make our species important are not just biologically human and alive animals but are individuals who can speak, think, make pictures, sing and dance, or..., as only members of our species beyond infancy and early childhood can do."

(Source: The Zero Fallacy, ed. M. Valady, pp. 38, 220-221.)

P.S. Sorry for the typo ("RGB") in my earlier comment.

David Palmeter said...

Jerry,

Sorry for misconstruing you. I tend to lose all sense of reason whenever I smell what I think is a demand for purity in an arena--politics--that requires compromise, half a loaf and all of that.

aall said...

While it's time to start the discussion over changing the number of Justices, we can't play small ball. Too small a number would lead to a tit for tat situation. The increase has to be such that any attempt to overcome it would be untenable. It also has to include the Appeals and District courts. We need a body slam not a knuckle rap.

Increase the Appeals districts to 15 or 17 and increase the number of Justices to equal that number. Any attempt to overcome that advantage would push the number of Justices into the twenties.

Also increase the number of judges on the Appeals Courts so that the Trump appointments are trumped.

Doing this would also provide some leverage to amend the Constitution to provide term limits (say 18 yrs.) for judges and Justices.

R McD said...

I hadn't thought of it until I came across this:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3665032

but stripping powers from the SC seems like a promising way to go. That reference is embedded within another interesting (to me) brief discussion

https://leiterreports.typepad.com/blog/2020/09/on-the-death-of-justice-ginsburg-of-the-supreme-court-of-the-united-states-scotus.html#more

PS. How do we know "David Zimmerman" at 9:24 AM isn't a pseudonym? Clicking on his name seems to bring up a blank page.

Tycho Manson said...

As a Canadian, I've been saying for a while that the US absolutely must get rid of lifetime tenure for federally appointed judges. Particularly on SCOTUS, lifetime tenure leads to the composition of the court becoming an actuarial crapshoot. This is an absurd result that leads to all kinds of mischief, as we've seen repeatedly over many years. (Even FDR's failed court-packing plan resulted from the advanced ages of some of the justices at the time).

In Canada, federally appointed judges (including those on the Supreme Court of Canada) must retire at 75 (and of course may retire earlier if they feel like it, as many have done). This adds some certainty to the prediction of turnover on the court. The youngest judge on the Supreme Court right now, Russell Brown, is 55. I have no idea who the prime minister will be in 2040, but I do know that he or she will be the person who appoints Justice Brown's replacement (assuming Justice Brown doesn't retire earlier).

My American friends tell me that lifetime tenure for judges in the US is baked into the Constitution. If so, that provision should be amended. It's logical, it is a matter of common-sense, and it's party neutral. (To ensure the latter, there could be a grandfather clause for all sitting federal judges over a certain age, like 65 or 70, or even for all sitting judges period.) If there's a persuasive reason to retain lifetime tenure, I haven't heard it.