Anthony Kennedy just announced his retirement, giving Trump a second SCOTUS appointment.

Things just got serious. That, after SCOTUS just gutted public sector unions and upheld Trump’s anti-Muslim bigotry.

Trump has said he’ll pick someone from his existing list, which includes lots of horrible people, as well as Mike Lee, who at least is good on civil liberties albeit horrible on cultural issues. Both bmaz and I think it’ll be Brett Kavanaugh, who’s very smart and has been groomed for this for a long time.

While this likely will end up absolutely horribly, here are several reasons it might end up less than horribly:

  • At the very least, this will focus this fall’s election, and SCOTUS just did a lot of things that will be horrible for Democratic voters, which should clarify issues
  • Any two GOP Senators (one, depending on what happens with McCain) can make demands. That means that a Corker-Flake-McCain (if he’s voting) axis could heavily influence the pick, if they chose to use that as their legacy in the Senate.

bmaz, on the other hand, is a realist. He figures this will put a third Alito-type on SCOTUS, which will doom us for as long as those young men remain around (even assuming RBG lives forever).

Finally, one more point. While Kennedy has been the swing vote for a decade, in fact this year John Roberts was often in that role. So as awful as he is, he may be more willing to work with Democrats to retain credibility at SCOTUS.

I can think of more possibilities, but for now, I’ll just post this as a thread.


114 replies
  1. Marty says:

    Yeah, our democracy just entered into the next stage of a crisis of legitimacy. This is very bad. Two Republican popular vote losers end up packing a Supreme Court that votes 5-4 in favor of a lot of things that the majority of Americans dislike.
    Very, very, very bad.

    • James says:

      Not to mention one of those Republican popular vote losers became president because of a 5-4 majority on the Supreme Court…

  2. SoCalTony says:

    A few thoughts, doubt it will be Kavanaugh, that’s way too much of a predictable pick, and we cannot expect that from an unpredictable president. It will be a no-holds-bard right-wing sociopath fighter just like Gorsuch.

    The court no longer has any credibility, it could survive the political nature of its 2000 election ruling, but it does not pass the sniff test with a man appointed after the legitimate nominee was unconstitutionally blocked by the Senate Majority Leader. This is no longer a “credible objective” court, it is just another highly political branch of government and will be viewed as such from this point forward.

    • emptywheel says:


      I just unapproved Cersei. I was uncomfortable with the message in this context. If you can convince me there’s a good reason to include it, I’ll put it back up though.

    • earlofhuntingdon says:

      ACB is also a Catholic, but younger and more conservative than Kavanaugh.  A woman, she opposes the ACA’s provision of birth control services and is a lifelong critic of Roe v. Wade.  She co-authored an article that took the position that judges should not be bound by the Constitution when it conflicts with their religious beliefs, but has denied she holds that view.

      She is critical of upholding precedent, a bedrock principle, but the current conservative majority agrees with her.  She clerked for Scalia. She is not a graduate of the Ivies or public Ivies – BA and JD from Notre Dame – which would allow Trump to argue he is making the Court more diverse, while in fact making it more conservative.

      All that puts her to the right of Kavanaugh.  Her position on women’s health and choice issues makes her an analogue to Clarence Thomas’s views opposing the use of the law to combat racial discrimination.  As a woman, her nomination creates more lines of attack of the sort that Hillary used, a delicious sauce for the goose opportunity.  Needless to say, she is white, like Kavanaugh.

      All in, I would say a more natural choice for Trump, if not the GOP.

      • Willis Warren says:

        Her denial during her confirmation was interesting, as she blamed her co-author.  Trump will absolutely pick someone to overturn Roe, as he wants his legacy secure with the religious base.  That really doesn’t eliminate too many from the short list, so the deciding factor will be age and looks.  I’m 100% convinced he chose Gorsuch because he’s good looking.

        • Bob Conyers says:

          If the GOP was functional any more, Murkowski and Collins would make a stand for preserving Roe v. Wade. Heck, they’d make a stand for the sake of health care and other issues they supposedly care about.

          They won’t. The only way issues they care about will be a factor is if the nominee is doomed for some other reason – ethics, conservative revolt, whatever.

          Maybe I’m too pessimistic, but I expect Trump will nominate a guaranteed vote to throw out precedent and overturn Roe v. Wade, and Collins and Murkowski will do nothing but wring their hands.

        • earlofhuntingdon says:

          You could say that with a Cajun drawl.  Trump needs it to feed his Base.  Feeding it uppity wummin, especially wummin of color – who should stay barefoot, pregnant and in the kitchen, minding their men – is both natural to Trump and a stereotype that would appeal to his Base.

          Crowley’s loss will be scaring Trump – he was a party boss in a part of NYC he knows better than any other – and his party.  If progressives Dems build momentum, Trump will face a more energized opposition party with a lot more votes during the second half of his term.

        • holdingsteady says:

          Old but still relevant news about Murkowski:  I never forget the only reason she was re elected in 2010 as a write in candidate when tea partier Joe Miller upset/defeated her in the republican primary back then was because quite a few Alaska democrats voted for her over the democratic candidate Scott McAdams who, while inexperienced, is a decent person and held his own and then some in the debates… I was and still am so disappointed in my democratic friends back then – it was a crazy year and I understand being appalled at the possibility of Joe Miller winning, but still, with the vote split it was a lost opportunity for a 2nd democratic Alaskan Senator for at least one term (along with Begich at the time).

          I am heartened by Maine voting for ranked voting, that has been a potential game changer for ages now, any chance  it will catch fire? Lisa Murkowski has definitely not lived up to her rhetoric and I agree she’ll go along with repubs in this nightmare Supreme Court process.  She shows up at our farmers market whenever she’s in town, if I can get through the crowd I’ll speak my mind, support Roe v Wade like you promised!

        • earlofhuntingdon says:

          As you say, Trump judges a book only by its cover.  Looks are everything to him, as are avoiding pain and personal liability.

        • Willis Warren says:

          I like what you say about Crowley’s loss.  It should be a concern to everyone, really, if it’s something to worry about.  What happened with the Tea Party was that a bunch of billionaires got a bunch of dumbshits to vote for dumbasses without any clue of basic civics, all so they could get a tax cut.  The backlash to that could be a democratic party that sweeps and passes laws that the (Trump) judicial branch will shoot down.

          I don’t see a way out of this that doesn’t involve something burning (hence my poor taste GOT joke).

        • orionATL says:

          trump has already picked someone to overturn roe v. wade, neil gorsuch, that is his job 1. that is trump’s payback to evangelical protestants and conservative catholics for their block voting in november, 2016.

          until the reverend james falwell pushed it forward as a political tactic at the encouragement of the republican party, abortion was a matter rarely discussed in america in terms of public policy.

          when that happens it will be yet another imposition of minority rule on the majority of american citizens.

          this ideologically stacked supreme court, which has been aborning since mitch mcconnell and snake grassley stonewalled meredith garland’s appointment, may prove fertile grounds for a political revolution by the ignored majority of our citizenry.

          chief justice roberts may have in mind the vonsequences for an intensrly conservative supreme court which reoestedly blocked new deal legislation.

        • orionATL says:

          mandatory! no harvard law, no catholic.

          there are surely dozens of conservative possibilities that meet these two exclusionary criteria, for example a graduate of liberty u. christian law school :)

          does trump want to be adored
          ever more?
          forgiven all future sins as well as past?
          apoint a christian law school graduate.

        • orionATL says:


          “until the reverend james falwell pushed it forward as a political tactic at the encouragement of the republican party, abortion was a matter rarely discussed in america in terms of public policy.”

          what i left out of this precise of history is this:

          the evangelical right’s focus before falwell was persuaded to take up anti-abortion was stringent, widespread opposition, in falwell’s virginia esoecially, o the federal government’s efforts to limit segregation. throughout the south at least, the christian right had come together and invested much effort in developing christian (private) schools to counter public school desegregation mandates. an anti-abortion focus was a much “cleaner” political motive in line with socially acceptable norms.

  3. JohnForde says:

    I can’t possibly be the first person to ask this but, who will Putin select as our next Supreme Court justice?

  4. Avattoir says:

    If Lee, a shoe-in: there are even Senate Ds who’d vote Aye just to get him out of the chamber. But Trump has no basis for trusting him, given no other human does.

    I agree it’ll be Kavanagh. Any one who, uhm, ‘moderate’ Senate Rs see as primarily loyal to Trump would be at least held up. & Trump will look forward to selling Kavanagh’s confirmation as a “win”.

  5. Anne says:

    Ugh, I had this same feeling when Citizen’s United arrived.  Is there any possible way to stop a trump appointment?

    • mister bunny says:

      I don’t know if there’s a way. But I wonder if the Democrats can delay everything every day until the election, then take control of one or both houses, if they couldn’t demand Garland or simply deny a vote (a la McConnell) until the conclusion of the Mueller investigation and trials or 2020, whichever comes first.

  6. pseudonymous in nc says:

    The tacit deal has been to give the party raised-by-wolveswingnuts ideologues on the bench, in exchange for turning a blind eye or actively enabling executive corruption. This will continue with obvious consequences. It’s Ragnarok.

  7. Abelard says:

    This article is dedicated to everyone who in 2016 voted their consciences and remained “pure” by not voting for the lesser of two evils.

  8. earlofhuntingdon says:

    Brett Kavanaugh would be a rational choice for another president. He’s been on the DC Circuit for fifteen years. Before that, he shepherded Bush’s judicial appointments through the Senate confirmation process, was cook and bottle washer for Independent Counsel Ken Starr, and before that was with Starr at conservative DC powerhouse law firm Kirkland & Ellis.

    Kavanaugh graduated from Yale College and Yale Law. He interned with the Solicitor General, he clerked for two circuit courts before clerking for retiring Justice Kennedy. He is polished, relatively young and another conservative Catholic. He has been groomed for this slot for decades. He would be hard for the Dems to oppose, harder for any Republicans to oppose, and could be confirmed within weeks.

    That makes him too easy and conventional a pick for Trump. He will be drawn to a conservative firebrand a decade or more younger than the 53 year-old Kavanaugh. Such a choice could delay confirmation past the November election, which would make it also a referendum on Trump’s Court pick. But Trump is nothing if not self-destructive. He always goes for broke, especially when spending someone else’s money.

      • boogs says:

        DT will meet him. (whomever.maybe her)

        He will ask him a bunch of weird ass questions to suss out his loyalty.

        And then, in five minutes, DT will know whether he is a good man.

        I’d bet trainwreck over simple process.

    • SpaceLifeForm says:

      If Trump really wants to do some major swamp draining, a good pick would be Merrick Garland.

      • Watson says:

        Spilt milk, but I thought that Obama should have deemed that the Senate had waived its right to advise and consent on Garland’s nomination, and sworn him in.

        • Pete says:


          But that would not have been civil on the part of Obama.


          But I agree with you.

        • Rugger9 says:

          It would have been the GOP thing to do and they would have earned it.  It would also have been a short trip to SCOTUS which I would suspect have struck it down since Congress was in session and the Senate did not vote on this idea.  However, I would expect with a D Senate to come that this idea will be dusted off by KQ (квислинг in his preferred language) to ram something through.


        • orionATL says:

          i have wondered the same. the more distance i get from president obama the more i realize he was not the firebrand liberal that his p. r. master, david axelrod, had painted him to be, pre-2008. in virtually every presidential action he took (or failed to take) obama was what would have been called a moderate republican of the john heinz variety, a child of financial comfort, exclusive schools, and comfortable in the upper regions of hawaiian society.

        • Trip says:

          That became apparent during his time in office. That’s why it was ridiculous that the right called him a socialist, when he played so nice with them.

        • orionATL says:

          president obama was a gentleman, and thus inclined toward playing by the rules and toward conflict avoidance. he played in a high-level politial game where his opponents were political thugs, loyal to their party above their nation, whose focus was on acquiring political power, and, having acquired it, on never relinquishing it.

        • Trip says:

          No, it wasn’t just the gentleman quotient. There was way too much influence of lobbyists, who happen to be benefactors of both parties. One you see how your opponent is fighting, you fight back (in kind). The civility, decorum and high road doesn’t work in a dirty fight.

        • orionATL says:

          obama was a gentleman and a conflict avoider. that was his achilles heel. by nature, he was not a fighter.

          soccer coaches know the saying –
          “no team gets to bitch
          about the muddy pitch.
          it rains on both sides.”

          lobbyist are like that rain.

        • lefty665 says:

          Good comment orion.  Virginia’s Warner and Kaine fall into that Repub category too, Dems by geographic coincidence. It was clear that Obama was a DLC/Neo Lib from the first time we saw him at a JJ dinner in ’07.  I’d suggest more Neo Lib than gentleman. He was not so opposed to what was going on. As was suggested in minority communities during the primaries, Obama was not black enough to be the first black president. It takes an extraordinary person, of any race, to stand tall. Obama kept his head down and gave nice speeches.  The Dems and country are still paying for his failure to exercise the veto proof majorities he was given in ’09-’10. He had a mandate, but knowingly pissed it away.

          As we get some distance on Obama’s presidency it becomes increasingly clear that Change was just a campaign slogan. He was perfectly content with Same, and that is how he governed. The country however was not and rejected his endorsed 3rd term, and now we have Trump making SC nominations. Thanks for nothing Obama and Dems.

  9. harpie says:

    Retain credibility?

    I agree with Chris Murphy, CT [and this was before Kennedy retirement news]

    Let’s call it like it is: the Supreme Court is turning itself into a political arm of the Republican Party. Weakening organized labor, upholding GOP gerrymandering, gutting voting rights laws.

    • earlofhuntingdon says:

      A longstanding role for the Court.  As the post-WWII – 1980 era was good for redistributing the pie toward the middle class and people of color, the same period was an oasis for a progressive court.

      We are back in the desert, the oasis no longer a shimmer on the horizon, as we were when the Court rejected FDR’s progressive legislation, as we were a generation earlier when another Court rejected efforts to rein in Robber Baron era economic and social injustices, as we were….

    • orionATL says:

      senator murpby is just discovering that the supreme court is an agent of republican policy and of that minority party’s persistent access to presidential power power and presidential excess?

      chief justice william rhenquist was a republican political operative from his young adult days. his loyalty to the party never waivered when he was chief justice. john roberts is no diffefent. like rhenquist, he is a sophisticated soft power advocate, not a spear chucker like alito, and scalia. i am not sure thomas is one of these ideologues either, more a nihilist toadstool, angry at the emotional circumstances of his upbringing and willing to rain chaos on a political and social system he despises.

  10. joejoejoe says:

    To-do list for future U.S. government:
    1) cap the time judges can serve at < life, 2) water embers on burning rubble, 3) feed the cat and/or grandma

  11. Bob Conyers says:

    I doubt it would make sense for candidates to talk openly about this, but it should be worth thinking about packing the court in 2021.

    Normally this would be beyond the pale, and the civility police would faint, but I would not be surprised if by 2020 we are considering it as an absolutely essential way to preserve our political system. I doubt just the threat will be sufficient to get the activists to back down, like we saw in the 1930s.

  12. harpie says:

    John Lewis 6/25/18 

    I was beaten, left bloody & unconscious while friends of mine gave their lives to ensure that every person has the right to register & vote. But five years ago the SCOTUS Shelby County v Holder decision stuck a dagger in the heart of the Voting Rights Act. We must #RestoreTheVRA

    John Lewis 6/26/18

    I never thought I would live to see a day when the Supreme Court of the United States would again make a decision as inhumane as Dred Scott v. Sandford or Korematsu v. United States. #StandWithMuslims #NoMuslimBanEver

    John Lewis, 6/27/18

    Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble. #goodtrouble


    • orionATL says:

      per harpie,

      “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble. #goodtrouble”

      congressman john lewis is a fine, fine leader as his last words quoted here demonstrate. if anyone knows about refusing to enter the slogh of despond in seemingly hopeless times, it is john lewis.

      i cannot emphasize enough for all of us here who care so much, how important it is in these times that we heed congressman lewis’ hard-lived advice. as a nation we WILL come out on the other side.

      it could be said that “never be afraid to make some noise and get in good trouble” is the credo of the emptywheel political fueilleton.

  13. pseudonymous in nc says:

    As Matt Tait noted, in normal advanced democracies the makeup of the constitutional/supreme court simply isn’t an electoral issue. (It was unprecedented and very “American” when the Daily Mail launched personal attacks on the judges considering the Article 50 case.) But here we are.

  14. earlofhuntingdon says:

    The Dems will have to think of obstructive tactics across a much broad range of issues, not just the issue of confirming a new Trump pick to the Supreme Court.  They should show the GOP the civility that McConnell and Gingrich showed them for two decades.  If Nancy and Chuck aren’t up to it, they know where the door is.

    • Bob Conyers says:

      I’d be more sympathetic to the establishment leadership on the issue of civility if they were fighting FOR something in the meantime. Trump is handing them gift after gift with health care, trade, and education, and they’re stuck trying to whittle away random voters here and there talking about gas prices.

      I realize part of the issue is the media follows Trump’s lead, but it’s time to follow the example of a bunch of high school students in Parkland and take matters into their own hands, instead of obsessing over twitter rejoinders to Trump’s typos.

      • posaune says:

        The Dem leadership is too busy congratulating themselves as they count and recount all their banker friends lounging in the Hamptons this summer.    Nice that Ocasio showed them something else.

  15. Bobby Gladd says:

    While we’re thinking about SCOTUS today, read up on these wingnut perversions of “Freedom of Speech.” The GOP has reintroduced the FADA bill (“First Amendment Defense Act”).


    I’ve added some of homophobe Mike Pence’s Indiana SB-101 anti-LGBTQ bill, which is even broader, and which he would certainly like included in an expanded FADA. FADA as currently written is transparently an attempt to overturn the SCOTUS ruling on marriage equality (“show your heterosexual marriage license at Marriott check-in”). SB-101 says any discrimination is presumptively permissible if it’s claimed to be based on “religion” (as the claimant defines it — unless you’re Muslim, I would think).


  16. earlofhuntingdon says:

    Jennifer Rubin, speaking on MSNBC about Kennedy, is incorrect in saying that the Supreme Court is not a political institution.  It is fundamentally a political body.  It is one of three, the other two being the executive and the legislature.  And every appointment to it is a political act, with more consequences than most such acts.

    The Supreme Court’s principal work is rendering legal judgment on matters of national importance.  But it must first choose its cases.  That involves making choices among conflicting social and political priorities.  It is frequently called upon to correct legislative and executive overreach – fundamentally political as well as legal acts – and to resolve conflicts between the other two branches.

    Achieving balance on the Court, however, is the outcome of chance and dynamic processes: the rarity of appointments, the shifting sands of Senate majorities, which party controls the White House, the talent available, the tenor of the times.  Socially, for example, the post-McCarthy 1950s were not the 1980s.  The Democrats have a chance here, just as the Republicans do.

  17. Rugger9 says:

    In addition to the social engineering to come towards establishing the “shining city on the hill” so beloved of the RWNJ hypocrite evangelicals (or more precisely “The Handmaid’s Tale”) there is also the aspect of Mueller’s investigation to consider here. This will be a partisan hack court that will support Kaiser Quisling (квислинг in his preferred language, and he’s getting a consultation mid-July with his master Vlad so it’s time to brush up) and the rest of the palace minions on the search claims, the notice claims (such as for the Russian company lately implicated) and perhaps most importantly the pardon scope. I do not put it past the new SCOTUS to assert that Presidential pardons apply to state charges as well (i.e. the extension of the Supremacy Clause, I would speculate as for the justification to widen the pardon power scope). That would free the palace and KQ to do what they want with impunity.

    What specific case law and/or US Constitutional provisions prevent such a pardon extension to state cases? I’m not sure this idea has been tested, since we have never had such a lawless palace like KQ’s before.

  18. Rugger9 says:

    Remember that GHWB shut down Lawrence Walsh’s investigation that was about to nail Cap Weinberger (and himself) by pardoning everyone tied to Iran Contra: sentenced, indicted and at jeopardy.  Let’s not forget this was a REPUBLICAN plan to sell embargoed F-14s to Iran (run by our enemy the Ayatollah Khomeini and who remains in possession of our embassy, a casus belli) to finance Nicaraguan Contras in direct violation of the law.

    Republican abuse of pardons to save their own skins is nothing new, really.

  19. Trip says:

    Jules Suzdaltsev‏Verified account @jules_su
    Pretty ironic that my parents escaped the USSR’s oppressive dictatorial regime, only to end up in a country controlled by the USSR’s oppressive dictatorial regime.

    Jules Suzdaltsev‏Verified account @jules_su
    It appears that Nancy Pelosi and Chuck Schumer’s foolproof plan to challenge Trump’s SCOTUS nomination, and an unconstitutional free-fall into outright fascism, is to politely ask Mitch McConnell to please not do it, thank you.

    • SpaceLifeForm says:

      Those two are either totally clueless or know of the reality behind investigations.

      Special Counsel may not be part of their view, most likely.

      • Trip says:

        1. “They” are they same person, two tweets. 2. It is sardonic humor, which contains strong elements of truth.

        • SpaceLifeForm says:

          I was referring to Nancy and Chuck. They know what is going on. Marcy confirmed today via the Half-gang of 8 letter.

  20. bmaz says:

    I don’t think McCain is going back for any votes, including this one. But I also think the nominee will be clean enough that there will not be any defections. If you are betting on Collins, Murkowski or Flake to help the cause, you are nuts, it ain’t happening.

    • Trip says:

      I won’t even count on Manchin not signing on, fuck if I’d think anyone in the GOP would take a stand.

  21. Mary McCurnin says:

    The U.S. Constitution established the Supreme Court but left it to Congress to decide how many justices should make up the court. 

    Is this true and how would it work? I have heard about it before today.


    • orionATL says:

      important question!

      i think it is the case that congress has substantial power to limit supreme court jurisdiction in several ways, but none of that power is completely unconstrained.

      the history of president roosevelt’s frustration with an extremely consevative, supreme always includes obesience to the “court packing” effort (congress does have the power to determine how many supreme court justices there are). it does not always include the detail that roosevelt won that political war after several skirmashes when the chief justice saw the handwriting on the wall.

  22. Rusharuse says:

    If you don’t like the decisions coming out- you can always just threaten to add more siblings . . has worked before, they say.

  23. jharp says:

    My hope is Kennedy knows that the hammer is about to drop on Trump and this is the only way to save his seat.

    And there is a greater than zero chance that I’m right.



    • harpie says:

      One back channel is the fact that Kennedy’s son, Justin, knows Donald Trump Jr. through New York real estate circles. Another is through Kennedy’s other son, Gregory, and Trump’s Silicon Valley adviser Peter Thiel. They went to Stanford Law School together and served as president of the Federalist Society in back-to-back years, according to school records. More recently, Kennedy’s firm, Disruptive Technology Advisers, has worked with Thiel’s company Palantir Technologies.

      • earlofhuntingdon says:

        Back channels.  It’s the only kind the Don knows how to work.

        Civility is the GOP telling the Democratic stallion to geld itself.  All the Dems can do is ask, “Where do I cut?”.

        • Trip says:

          Yep. I didn’t watch much news last night, but caught a small segment with Bernie Sanders on the civility train.

          It will run us all down.

    • harpie says:

      Trump, just now, at a campaign rally in Fargo:

      [..] Trump on Kennedy: “I’m very honoured he chose to do it during my term in office because he felt confident in me to make the right choice and carry on his legacy.” / “We really have to take our hats off to Justice Kennedy. Thank you very much,” Trump says. He adds “we have to pick one” who’s on the court “for 40 years, 45 years.” / Trump says Kennedy’s retirement makes the issue of Senate control one of the most essential issues of our time.

      [Daniel Dale does great live tweeting of Trump rallies.]

  24. harpie says:

    o/t, but omfg:
    [quote] JUST IN from DOD // “DOD has received a request for assistance from the Department of Homeland Security to house and care for an alien family population of up to 12,000 people.  DHS requests that DoD identify any available facilities that could be used for that purpose.” [end quote]

  25. Willis Warren says:

    So, remember, Republicans will dominate the courts for years to come (we’ll call it the McDomination). Even if Democrats came in with a blue wave and passed legislation like, say, Medicare for all, a state could sue and this court would almost certainly deem legislation unconstitutional. In effect, the Republicans (cough, Kochs) have eliminated the threat of democracy for the Oligarchs.

    Now, there are a few ways around this. One of them, which our Russian friends will push with the help of Republican frothers, is violence. There’s a reason why the frothers love guns, guys. They’re ready for this and they’re secretly pushing it towards us. They have been for well over ten years, as long as I’ve been following the libertarian shift to insanity.

    The other is mass demonstration. Force judges to retire. This is probably the best method. Probably won’t be able to get a coherent message from the dems. Probably won’t work, either, as these judges seem like dicks.

    The third is to dominate the voting booths so much (60 Senate seat super majority) that we expand the SCOTUS to, say, 13 seats and stack the court. This would alleviate a lot of the McDomination, but would almost certainly lead to a McTaliation (sorry).

    It’s not going to be good for the country, no matter what happens. But there are responsible people here that need to get out in front of it, before it gets ugly.

    • Trip says:

      Thanks for that comment.

      It’s important that people don’t get lulled into complacency.

      The MSM (CBS, MSNBC, etc) is promoting “nothing to worry about” (on Roe v Wade), etc.  The strange bedfellows of the left (repub Trump critics), like Schmidt and that idiotic Morning Joe guy, are back to being full-on Republicans. MSNBC is not doing the country any favors by continuing to have the right on, opinionating in favor of this development and criticizing those left of the establishment Dems (ie Ocasio-Cortez).

      This stage is not normal. There is no normal.

  26. earlofhuntingdon says:

    MSNBC does not get it. Mika wonders why the Dems would go down the GOP road and try to prevent action on Trump’s new S.Ct. nominee until after the mid-term elections. Superficial similarity is all the MSM seems to ponder.

    First, the Dems haven’t the votes to prevent GOP confirmation of Trump’s pick. Moreover, McConnell will use his whip to obtain confirmation almost without regard to the credentials or character of the nominee. Roy Moore would stand a chance with McConnell. Kavanaugh or Barrett would be approved in a heartbeat.

    Second, the GOP threatened executive power – when wielded by a Democrat – when it refused to perform its obligation to consider and vote on Obama’s nomination of Garland. It usurped that power in order extra-constitutionally to bestow it on Obama’s GOP successor. That threatened the democratic order. The decisions of Gorsuch will damage it further. That he constitutes a solid conservative, corporatist, one dollar-one vote majority will do more harm.

    Third, were the Dems to adopt the GOP’s approach, they would be acting to restore democratic rule. They would not be denying Trump’s right to nominate a new justice. They would be subjecting it to confirmation by a new Senate, a third of whose members will have had to survive re-election in the current Trumpian climate. Not obstruction, not a referendum, a consultation.

    None of that will deflect Trump. It will not reduce his abject reliance on the arch-conservative, corporatist Federalist Society, which wants an entire federal judiciary that would make the current court look balanced and restrained. Both see a chance to move the Court irretrievably to the right, cementing in place their dollar democracy.

    The bottom line, though, is that this is not about democracy. It is about raw power, the kind that democracy is meant to restrain. And we all know how well Donald deals with restraint.

    • SteveB says:

      An insightful analysis concisely distilling the important issues of principle, alongside a realistic appraisal of the realpolitik.

      Thanks for sharing your perspective which has certainly clarified a number of things for me, and others too I imagine.

  27. earlofhuntingdon says:

    Another parting shot from Justice Kennedy. The Supremes accept a double jeopardy case, which suggests it has an interest in upsetting established precedent. Just in time to help Mickey Medallions and Paulie, perhaps.

    Justice Kennedy is unlikely to be retiring to spend more time with his family. That’s always a background issue, not often a motivator. He will have timed his departure precisely to allow Donald Trump and Mitch McConnell to choose his successor, with all the legal, social, and political consequences that follow from it.

    As noted in another comment, that one of Justice Kennedy’s son’s has NYC ties to Don Jr. and another close ties with Peter Thiel and the FedSoc, is just a coinkydink. I’m sure they thought dad just wanted to cement his legacy and enjoy his leisure, so much so that waiting until after the mid-terms was too much of a burden.

    • Trip says:

      He deserves a long course of widespread festering pustulant boils. That’s all I got. He chose personal benefit over country by your account, and never should have been a ‘justice’ in the first place, based on that alone.

    • earlofhuntingdon says:

      That assumes that Kennedy has no major undisclosed health issues that would justify a departure whose timing so aids and abets Trump and the FedSoc’s hard right, anti-democracy path.

    • orionATL says:

      fellow judges have remarked that justice thomas does not believe in the precedents tradition (stare decisis) of common law.

      • orionATL says:

        there’s always lots to learn in consequential changes like justice kennedy’s retirement.

        jonathan turley looks thru kennedy’s work and writes that kennedy, like justice thomas, can be impatient with stare decisis:

        personally, i can’t see being an effective supreme court justice and not being skeptical of precedent simply on the grounds that society changes in 250 years – take for example, the matter of police following cell phone users now being required to get a warrant (thus negating the “third party” doctrine) on which justice roberts just wrote the majority ruling.

        • orionATL says:

          this adam liptak article from the june 30 nytimes is one of the most important i have read in a long time:

          it lays out a calculated plane by the rightwing to exploit specific sections of the constitution for their particular ideological/client needs. liptak’s article confirmed my intuition that the rightwing justices were operating from a specific agenda as republican political party operatives. i have no sense that there is a concern for the common good when these justices go to work.

          in particular, this article solves the mystery of the supreme court decision to grant person status to corporations, a decision that never made sense to me since a corporation is not capable of speech. the idea apparently is to let corporations in on the benefits of the first amendment speech clause and thus free them from regulation supported by consumer and equal rights advocates. this type of calculation, hidden from public view, marks the stealth campaign to undo consumer protection laws enacted beginning in the 1960’s and 70’s with supreme court justice lewis powell’s famous warning letter and the creation of the business roundtable. the corporate counterrevolution began in earnest with the election of ronald reagin and has reached its apotheosis with the administration of donald trump.

          former federal trade commisdion chairman michael pertschuk has written about the beginning of the corporate counter-revolution, for which the republican party has since loyally served as standard beerer and footsoldier, in “revolt against regulation”.

    • bafo says:

      There’s this:

      Deutsche Bank loaned President Donald Trump over $1 billion for his real-estate projects while Supreme Court Justice Anthony Kennedy’s son led a real-estate division there, The New York Times reported Thursday. Justin Kennedy was the global head of the real-estate capital markets division of Deutsche Bank, which loaned to Trump when other banks wouldn’t.

      And remember this:

      “Five banks, including a big lender to President Donald Trump, have received temporary reprieves from the administration to run businesses that they otherwise would have had to shut down after criminal convictions. The Labor Department granted Deutsche Bank a waiver from punishment allowing it to continue to manage pension funds and individual retirement accounts for another three years, according to an announcement in the Federal Registry soon after the decision last month.”


  28. earlofhuntingdon says:

    The Guardian needs to do more homework.  In an otherwise useful article on a handful of top candidates to replace Kennedy, it says this about Brett Kavanaugh:

    Having served as a top aide under President George W Bush, he was finally confirmed as an appeals court judge for DC in 2006 after three years of delays over charges of partisanship.

    The GOP controlled the Senate in 2003, and Iraq war fever was at its height, which meant that any nomination to the left of Roy Moore was quickly approved.  But Kavanaugh’s nomination was contentious for several reasons.  The principal reason was that he wholly lacked the experience typical for such an appointment.

    He was then 38, more than a decade younger than the typical appointment.  His academic achievements were typical for such appointments: Ivy League law school and clerking for the federal bench.  But his professional experience was distinctly limited.

    He had been a junior lawyer at a DC law firm and spent several years in an unusual job, working for Ken Starr as Independent Counsel.  At the time of his nomination, he was a White House aide (not a “top aide”) whose job was to shepherd judicial appointments through the confirmation process.

    Typical appointees to the federal appeals court bench have been managing partners at large firms or general counsels of major corporations (or occasionally large foundations), had years of experience as a federal trial court or state supreme court judge, held senior posts at the DoJ or been top lawyer at a large federal agency, or been a tenured professor at a top-tier law school.  Kavanaugh had none of that experience.

    GOP Senators and their top staff also knew Kavanaugh better than the nominees he was shepherding through their approval process, and it still took days to approve his nomination.

    Today, of course, he does have the experience typical of a nominee to the federal circuit or to the Supremes, which is why Bush/Cheney pushed to get him onto the DC Circuit so early in his career.  As Dick Cheney used to say and do, “personnel is policy”.  Trump, following McConnell and the FedSoc’s lead, are doing the same with a hundred other judges even more to the right than Kavanaugh.

    Of the other candidates mentioned in the Guardian article, Don Willett, 50, on the Texas state supreme court, William Pryor, 56, on the 11th Circuit, and Amul Thapar, 49, on the 6th Circuit would be the most controversial.

    • earlofhuntingdon says:

      Correction.  Kavanaugh was nominated in 2003, but not confirmed until 2006, so the delay was three years, not three days.  Iraq war fever was wearing thin.  Libby had been indicted in October 2005, and other scandals, such as Abu Ghraib and Gitmo, were tarnishing Bush’s war effort.

      My central criticism regarding Kavanaugh’s lack of experience stands.  Moreover, he was only one of a host of judicial and prosecutorial appointments that were remarkable for the youth and inexperience of the nominees.  Partisanship was a major issues in the US Attorney scandal later in 2006.  Incompetence was also an issue, especially regarding Bush’s appointments of the US Attorneys for Minnesota and the Northern District of California.

    • earlofhuntingdon says:

      Kavanaugh was 38 when nominated to the DC Circuit, which would have made him 41 when approved, so he has roughly twelve years experience on the federal bench.

      The three year delay was due, in part, to the Democrats retaking control of the Senate, for the two years, 2004-2005, sandwiched between his nomination in 2003 and his approval in 2006.  As with several other extreme appointments made by Bush/Cheney in this period, partisanship was only a partial explanation for the delay.

      That’s something the current Dems should consider as they seek re-election this November.

  29. earlofhuntingdon says:

    John Kerry gave a nice talk with Andrea Mitchell.  Generally interesting, careful in criticism, as one would expect from a former Secretary of State.  He made a point I take strong exception to, when he claimed that “we’re not holding ourselves accountable” when it comes to exercising “our” right to vote.  (“What do you mean, ‘we,’ Kemosabe?”)

    His comment ignores the vast number of ways that both parties, but most especially the GOP, actively restrict voting.  Here are a handful.

    Last year’s overt attempt by the absurd Kris Kobach is an outlier in being so obvious.  GOP state legislatures have been robust in gerrymandering votes, down to the block, street, and household, in order to create GOP majorities for state and federal elections.

    GOP legislatures have invented voter fraud plagues and used them to justify voter ID laws that disproportionately affect the poor, elderly and people of color, often those most likely to vote Democratic.

    GOP state secretaries of state routinely shut dozens, even hundreds, of polling stations, again, disproportionately affecting the same Democratic leaning voters.  Ditto regarding restrictions on early voting and voting by mail.

    In developed countries outside the US, election day is a holiday, to encourage more people to vote.  In the US, it’s a business as usual day, which makes it a lot harder to vote if you are poor or middle class, someone of color, working multiple jobs, single parenting, or just working a job with precarious security that doesn’t allow you to take half a day to get to a polling station, wait in line, cast a vote and get back to work.

    Needless to say, Kerry omitted how little either party’s leadership and policies respond to the needs of Main Street Americans rather than the denizens of Wall Street.

    • orionATL says:

      earl of h –

      “… His comment ignores the vast number of ways that both parties, but most especially the GOP, actively restrict voting.  Here are a handful…”

      certainly both parties have gerrymandered since that term was invented.

      lately though, republicans have taken to using extremely sophisticated computer programs to gerrymander. that was the case with the recent case before the supreme court. one criticism of the courts in considering these cases was that many justices, being trained in law, lacked any background (or the motivation) to allow them to understand the ways these programs have been evaluated as fair or unfair, and so treat the evaluation arrogantly as folderol.

      i do not have the impression that otherwise democrats engage in the same “vast number” of vote suppression activities as republicans, or on the same scale of vote suppression. for one, vote suppression usually targets those who are least able or likely to protest. these are people of color who usually tend to vote dem. the other side of that coin is republican voters, being largely white, would be likely to howl at suppression efforts.

      what dem suppressions have i missed?

      • earlofhuntingdon says:

        The last twenty years the voter suppression has overwhelmingly been from the GOP.

  30. mitchell says:

    Roberts was the swing in order to prevent the GOP apparatchiks on the SCOTUS panel from doing anything to seriously weaken the rule of law. He won’t be able to do that starting next term when there’s a solid majority of right wing extremists on the panel, more interested in promoting anti-democratic GOP policy than rule of law.

    What Roberts did is pretty much what every Chief Justice does. And starting next term, it won’t matter. And it won’t matter for decades to come.

    • orionATL says:

      the supreme court, indeed the entire judiciary, is highly vulnerable to congressional and executive power. it has no money-raising authority and no authority to assert the results of its opinions on governments or individuals. the congress can set the number of persons on the court (the original number was 6) and the congress can limit what apellate courts and the supreme court can review.

      if the dem party will stop being fearful of the rightwing noise machine and find some articulate spokesmen; if the national party will take the wraps off of strong criticism of republican legislation and actions in the house and senate and public lies disguising what that legislation and activity is really intended to do, e. g., medicaid, food stamps, social security; if the dem party will realistically and harshly critize the appellate courts and the supreme court; then it will not be decades at all.

      if women appalled at trump as president, vote in november like i think they may vote, then it will be months not decades before there is some relief.

      if the economy fails due to trump’s disastrous disruption of u. s. trade with the rest of the world, then the trump presidency will not last past nov 2020. if dems annoint an inarticulate, mush-mouthed candidate afraid to criticize the president, the congress, and the republican-packed supreme court, then it will be longer.

      if you are scared of losing because of saying publicly what you believe is wrong in this country now, then you have no business running as a democrat. but guess what, lots of dems run anyway and run scared – and leave a trail of unenthusiastic voters behind them.

  31. tjallen says:

    1. Help me with this: Does a new Justice have to recuse himself/herself from any cases involving the president who appointed him/her? Will this new Justice get to rule on things that bubble up from the Mueller investigation (or even decide upon the existence of the investigation)?

    2. Consider that Trump will try to insure his own safety in any upcoming trials, in selecting the new Justice. This means he would choose someone with a (very) expansive view of executive power, someone who believes the President can do no wrong, someone who holds that “unitary executive” view. I don’t see the mainstream suggestions as being radical enough.

    • earlofhuntingdon says:

      Unlike lower federal courts, each Supreme Court Justice can determine for himself or herself whether to recuse themselves from any case.

  32. earlofhuntingdon says:

    The right trolling Brett Kavanaugh might be due to a sincere belief that he is not enough of a firebrand conservative, not sufficiently or outrageously atavistic, to be the newest Justice on the Supreme Court.

    It would be more typical, however, for the trolling to be a propaganda technique designed to make the hard conservative Kavanaugh, with his pleasant conservative Catholic smile, more digestible to a wider audience.

  33. M says:

    Trust a Republican to have and act on a proposal requiring decency. Expecting a significant number of Dems to put up a real fight (dunno that there is even one when it comes to getting another turd on the SCOTUS bench but whatever). Great plans that never worked before so why not now?

    And as for allowing a vile, completely unqualified person on the bench, ask Joe Biden about his masterful blocking of Clarence Thomas’ appointment.

  34. orionATL says:

    i am not a ready supporter of presidential impeachment. that argument is usually made by powerless political oponents. the two presidential impeachments that have taken place have been dishonest shames contr8ved by political opponents with the congressional voting power to expect to prevail.

    had secretary clinton been elected president, i am confident that by now she would have already been impeached by the house, following the same type of sham arguments now being used against the fbi, doj, and their officials.

    impeachment of supreme court judges, however, is a matter i consider both worth doing and probably necessary if the democratic party ever acquires sufficient power in congress again. the basis for impeachment would be judicial candidates dissembling and evading in confirmation testimony before congress. i note that a number of rightwing would-be justices have been evasive, at best, when questioned on abortion. i suspect other parts of their testimony could be matched against their voting record to determine whether they were fourthcoming before the senate.

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