Ruth Bader Ginsburg has died.

[Solmyr]

Just realized with a 6-3 court that we'll likely see the ACA ruled unconstitutional in the middle of a global pandemic and millions of Americans still out of work.

What a time to be alivedead.

FYP.

[Syt]

[derspiess]

I'm willing to bet that Romney won't vote either before the election or during the lame-duck (unless the GOP retains the Senate and Trump is re-elected). Maybe one of Grassley, Collins, and Murkowski, but not enough to stop the nominee from going through. Collins looks likely to lose and has no reason not to vote for the nominee after her loss.

Just saw Romney post on FB that he favors a vote.

[derspiess]

Damn it, Syt.  Beat me by 12 seconds!

[The Minsky Moment]

There hasn't been a liberal court for decades.

[Josquius]

Ah yes. The good old "it's not actually that conservative it's just the world is sooo left wing" nonsense.

[The Minsky Moment]

These are the people who think that O'Connor or Kennedy were liberals because they were a bit to the left of Atilla the Hun.

There is no justice as left as Thomas or Alito is right and there hasn't been one for a very, very long time.  The right of the Court is very far right - Thomas' judicial views in particular are way out of the mainstream. 

[Sheilbh]

I also saw the Ross Douthat piece complaining about what's the democratic fairness of Souter or Stevens having a combned 54 years on the court. Which is kind of beside the point - the democratic legitimacy is that they were nominated by Presidents and approved by the Senate (90-9 and 98-0) - but it's a court. It's not like other institutions where there's a sort of on-going democratic element that lets you discipline your party (e.g. through primaries).

There's nothing inherently unfair about Republican presidents nominating judges who act as judges and develop their interpretation/approach to the law rather than ideologues or politicians who kind of have to satisfy the base. That's the way courts work

[The Minsky Moment]

Interesting that he uses the examples of Souter and Stevens, both nominated by Republican presidents.

[Sheilbh]

Interesting that he uses the examples of Souter and Stevens, both nominated by Republican presidents.

I think that's his point:

How the G.O.P. Might Get to Yes on Replacing Ruth Bader Ginsburg
There's no escape from juristocracy except through political conflict.
Ross Douthat
    Sept. 20, 2020

Imagine a Republican senator uncertain whether to vote for the Supreme Court nominee that President Trump is poised to put forward. He is part of a select group, our senator; perhaps we can even guess how many children and grandchildren he has, how steeply his hair still rises from his brow, how close he once came to being president himself.

Here is how he might consider the problem. On the one hand there is the threat of what keeps being called a "legitimacy crisis" should Ruth Bader Ginsburg, who died on Friday, be quickly replaced by a conservative jurist. It would be Donald Trump's third appointment following a presidential election in which Senate Republicans declined to vote on Barack Obama's final nominee. Trump did not win the popular vote in 2016; his Senate coalition doesn't represent a popular majority. In replacing Ginsburg he would be altering the balance of the court more decisively than with his previous picks, both of whom took seats from Republican appointees.

And he would be doing so in a country that's already polarized, maddened, suffused with hysteria. The madness around Supreme Court battles has been building steadily since Robert Bork's defeated nomination in 1987, and at some point it has to be defused. If someone — which means some Republicans, at the moment, because the power is in their hands — doesn't find a way to de-escalate, to concede some ground, then the court and even the Constitution could be in the gravest sort of peril.

That's the situation as understood on the left and much of the center. But our senator is a Republican senator, mindful of his own coalition's views. He knows there is more than one way for an institution to lose legitimacy, and that for many conservatives the high court eviscerated its own authority decades ago, when it set itself up as the arbiter of America's major moral controversies, removing from the democratic process not just debates about sex and marriage and school prayer but life and death itself.

Those "many conservatives" include this columnist. Since I became opposed to abortion, sometime in my later teens, I have never regarded the Supreme Court with warmth, admiration or patriotic trust. What my liberal friends felt after Bush v. Gore or after Brett Kavanaugh's confirmation or in imagining some future ruling by Amy Coney Barrett, I have felt for my entire adult life.

And our Republican senator knows that this feeling has sustained itself because the conservative effort to change the courts was balked and limited, over and over again, despite many seemingly no-doubt electoral victories and sweeping presidential mandates. For decades, conservatives elected Republican presidents, Republican presidents appointed Supreme Court justices — and yet about half of those justices turned out to be either outright judicial liberals or "swing" votes who always seemed to swing toward social liberalism.

So if it seems unfair and delegitimizing to liberals today that a president without a popular-vote mandate should be able to appoint the successor to Ruth Bader Ginsburg, conservatives might respond by asking what democratic "fairness" delivered David Souter and John Paul Stevens to a combined 54 years on the court as Republican appointees? Or what "fairness" made Anthony Kennedy rather than Antonin Scalia the dominant judicial figure for the decades that followed Ronald Reagan's presidential landslides?

And further, what would it say to the millions of voters who have supported the Republican Party almost exclusively because of judicial politics for decades, for a situation to come along where there is no constitutional bar to appointing Ginsburg's successor, and then Republican senators simply cede the opportunity, extracting at most a vague no-future-court-packing promise in return? At least with Souter, the seat wasn't ceded to liberals on purpose.

That's what our senator encounters when he inclines his ear rightward. But if he has wisdom, he can also sense in the clashing arguments a substrate of agreement — a shared recognition that a system in which the great questions of our country are settled by the deaths of octogenarians is too close to late-Soviet Politburo politics for comfort, a shared acknowledgment that too much deliberation that belongs in other branches is being shunted to the Supreme Court.

The question is what, if anything, would need to happen to make that substrate the foundation for a better system, a decisive change in judicial appointments and a step back from juristocracy.

One answer, the "Mr. Smith Goes to Washington" answer, is that a brave stand in favor of bipartisanship by a few Republican senators might set the stage for a return of wise-man politics, in which various reforms proposed for the Supreme Court — shorter terms, rotating appointments, a larger bench appointed by bipartisan committee — could be pushed through by Republicans and Democrats together, in a Joe Biden presidency or thereafter.

The message of the stand would be, let's not do this, but its goal would be to get both parties to say, let's never get in this situation again.

But that might be an idealist's fancy. Suppose that Ginsburg isn't replaced this fall, Biden is elected, and he fills her seat and then replaces at least one conservative justice as well, flipping the court back to liberal control. The Democratic incentive to reform our juristocracy would diminish or evaporate, and liberalism's self-understanding as the party of hyper-educated mandarins would come back to the fore, making progressives enthusiastic about judicial power once again.

Meanwhile, conservatives would have all of their suspicions about establishment Republicans confirmed yet one more time, and they could add the Supreme Court to the lengthening list of elite institutions in which cultural liberalism's power seems more consolidated every day.

The likely result would be a right-wing coalition that's angrier and Trumpier than the G.O.P. that nominated Trump himself four years ago. So our imagined Republican senator's reward for his high-minded vote could easily be a longer-term defeat for moderate conservatism: The judiciary would be handed over to ambitious liberals, and his own party would become more populist, paranoid and hostile to any form of compromise.

Whereas if he voted to confirm, then the worst-case scenario, the threat that Democrats are waving, would probably be an attempt at court packing in a Biden presidency, or perhaps in a Kamala Harris presidency down the line.

Such a development would no doubt make Twitter unbearable and inspire Republicans to their own round of angst about legitimacy and norms. But once you recognize the current system's brokenness, it's not clear it would be all that terrible a fight to have.

For one thing, to fight a battle over the court on those terms would commit the Democrats decisively to the position that the courts should be under small-d democratic control, rather than allowing them to replace Ginsburg, breathe a sigh of relief and revert to a liberalism of philosopher kings (and queens).

For another, if an era of court packing tit-for-tat weakened the high court, making its members more cautious and its decisions appear more overtly political, then that could have one of two positive consequences: It could push some power back toward the legislative branch, where under our constitutional schema it still formally belongs, and it could eventually push the warring parties toward an exhausted stalemate, from which bipartisan court reform might be more likely to emerge.

Of course I am speculating, but my point is to suggest the inherent unknowability of some "what's best for the republic" outcome as our Republican senator contemplates his vote. It might be that a high-minded renunciation of power saves us from a crisis ... but it might just as easily be that the only way out of the crisis is through, meaning for both sides to contest frankly for the power to change a broken system, and to look for new norms on the other side rather than propping up old ones that clearly don't work anymore.

And the unknowability means that the decision is probably better reduced to its simplest form. All that our senator knows about this vote for certain is that it will give one of the (unfortunately) most powerful offices in America to either the person nominated or some person chosen by the current Democratic nominee.

If the person nominated seems like a better choice to be entrusted with that power, then despite all the atmospherics, there's a clear case for voting yes.

I mean it's a case - but it's basically just another bit of "they did it first" grievance politics on the right so taking any steps necessary to fight back is acceptable.

[Valmy]

The rationale matters not at all. The 'principles' will mutate to whatever is needed to provide political cover capture another court seat. You must control the Senate or you are screwed. That is all there is to it.

[The Minsky Moment]

I literally don't understand his point.

His argument seems to be that the only thing the Supreme Court justices do or matter for is voting in cases about abortion and that the only political question that matters in the country is one position on abortion.

But even then I still don't understand the point.  The "legitimacy" question doesn't stem from the fact that a President  (or Senate) with a sizable popular vote minority is changing the complexion of the Court. 

The legitimacy question stems from the fact that the Senate denied a vote to a prior nominee based on a principle that is applied here would compel even more strongly denying a vote to this proposed nominee.  The legitimacy problem that is raised goes to the heart of rule of law. American law is based on precedent and adherence to reasons applied neutrally and universally.   If different sets of rules are applied by the same group of office holders based solely on partisan advantage, then the rule of law is undermined and what is left is both of the appearance and reality of exercise of unprincipled raw power.

[The Minsky Moment]

The rationale matters not at all. The 'principles' will mutate to whatever is needed to provide political cover capture another court seat. You must control the Senate or you are screwed. That is all there is to it.

Bingo that is the problem.
And that is why Douthat is twisting himself into knots as a "principled conservative" trying to justify the open repudiation of principle. It reduces to a plea for the right to avenge grievance - I had to suffer because GHWB nominated Souter so it only fair now "you" should all suffer as well.

[Sheilbh]

The rationale matters not at all. The 'principles' will mutate to whatever is needed to provide political cover capture another court seat. You must control the Senate or you are screwed. That is all there is to it.

Bingo that is the problem.
And that is why Douthat is twisting himself into knots as a "principled conservative" trying to justify the open repudiation of principle. It reduces to a plea for the right to avenge grievance - I had to suffer because GHWB nominated Souter so it only fair now "you" should all suffer as well.

Yeah. I think it's a solid attempt to set out a principled approach, but ultimately I think it does boil down to grievance and power. This does seem to be the line that's influencing Romney though.

Edit: E.g.:

More Romney: "My liberal friends over many decades have gotten very used to the idea of having a liberal court, but that's not written in the stars."

He says a center-right court is appropriate "for a nation that is if you will center right."

[Barrister]

The rationale matters not at all. The 'principles' will mutate to whatever is needed to provide political cover capture another court seat. You must control the Senate or you are screwed. That is all there is to it.

Bingo that is the problem.
And that is why Douthat is twisting himself into knots as a "principled conservative" trying to justify the open repudiation of principle. It reduces to a plea for the right to avenge grievance - I had to suffer because GHWB nominated Souter so it only fair now "you" should all suffer as well.

It all comes back to the original sin of Roe v Wade though, a case that creates a constitutional right to an abortion out of thin air (abortion certainly isn't mentioned in the Bill of Rights).

So ordinarily if you don't like a certain public policy, you go and lobby congress, you fund raise and elect politicians.  You engage in electoral politics.

But because of RvW, your only outlet is to get the case overturned.  Which right-to-lifers have tried to do for 40+ years.  They've gone out and helped elect Republicans who have in turn appointed USSC Justices.  Over the last 40 years Republicans have appointed 10 Justices, compared to 4 by Democrats.  Yet RvW remains because a number of Justices just haven't been willing to vote down RvW when given a chance.

Look, I oppose trying to ram through an appointment during a lame duck session after what happened with Merrick because I don't think they understand the long-term implications.  But there's a perhaps understandable frustration from the right to life movement.