Honestly, I don't feel that we should have to fight this hard for things like voting rights, library books, abortion or environmental protection. It's corruption. Even when ballot measures pass in states, Republicans simply don't implement them.
I'm not hopeless though. I think that Dems will do fine this year - if for no other reason than trump has emptied the coffers of the RNC which means they have no ground game and Republican candidates have to self-fund. Also, it's shocking how many men underestimate how angry most women are about overturning Roe v. Wade. The same people who freaked out about wearing masks-during a pandemic-act like women are overreacting and not "embracing their nature". It's just - a lot.
What difference would it make to replace one liberal justice with another now? If trump wins the SC will just be an arm of a fascist state. He'll fire all the liberal justices in the country if not worse.
I for one don't need to see Lindsay screaming at any nominee questioning how much time they spend in church as a prerequisite to being confirmed by the Senate.
Authoritarian regimes don't have a court system that ever rules against what Dear Leader wants.
So here's a thing I wonder. Do Republicans do this with their champions on the Supreme Court? When Antonin Scalia was on death's door, were there pundits like the ones referenced here calling for him to retire?
This just feels so...I don't know, like unilateral disarmament? And then what will happen, given the conservative structural advantage in the Senate as well, we're going to end up with another wedge against Democrats. It feels like only Democrats get affected by wedge issues; Republicans know to stick together and ally with other conservatives.
Scalia's death came all of a sudden--Republicans' only care then was that Obama not be able to pick his replacement because it was doubtful (with reason) that Obama would pick anyone that conservative. Kennedy did act strategically, retiring in time for Trump to pick Kegs, but you didn't hear calls for Thomas or Alito to retire in 2019 probably because Republicans know they have a better advantage with the Senate than Democrats do. Plus, they hadn't been burned by an untimely death (though Scalia came close) the way Democrats have, certainly not in the last 50 years or so.
She's diabetic, which apparently can shorten a life span by a decade or more, and she has a family history of early natural death. That said, she likely has great medical care, too.
It's really a crap shoot, but I think the pressure is less "she's likely to die soon!" than it is "she's 70, and we may not have a chance to put someone on the Court again for another decade or more". The analogy here is Thurgood Marshall, who at the end of Carter's tenure probably figured he wouldn't have to wait another 12 years for a Democrat to pick his replacement.
Instead, his replacement is still on the Court today (Thomas was in his 40s when Bush picked him).
Here is the main problem lie with Democrats; competence matters for them. For Republicans, any warm body that can parrot the Federalist Society orders gets installed. This is also why Aileen Cannon is going to get fast-tracked onto the court if Americans are short-sighted enough to reward President Klan Robe with another term.
Democratic nominees actually have to be competent and experienced, so that means we don't pick fresh-out-of school farm team redshirt quislings like Barrett. And of course, people like that they always have a chance of turning Republican traitor because if there's one thing Democrats love, it's someone talking a big game and making them swoon with pretty words.
Yeah--Dems don't have quite the vetting process of the Federalist Society, though their picks going back to Byron White have generally been reliably liberal. It's true they wont' pick people as hilariously inexperienced as Republicans will, but you can still find fairly experienced judges in their 40s or early 50s. I think a part of this also is that if justices normalized being on the bench for only a decade or so, and retiring when the next Democrat is POTUS so a new justice gets a shot, this wouldn't be such an issue--but we have gotten to a point where we expect justices to hold on until death and put 30 or 40 years on the bench.
Exactly. To Seth’s point, though, who cares about qualifications considering the current system? Sotomayor appears in public with Barrett, which is like Scorsese regularly appearing at film conferences with Michael Bay. Barrett still has the same country club pass, just like Cannon will have if she’s put on the court. The remaining liberals won’t say anything negative about her and will probably even rave in interviews about how Cannon brings everyone fresh-baked cookies on Mondays.
Democrats should also start picking reliable liberal judges who are in their mid 40s and can serve for decades.
I do think that probably a lot of liberals aren't radicals, nor are bomb-throwers...and the system as designed doesn't reward liberal bomb-throwers. Modern liberalism is, after all, opposed to a number of the original founding principles of the USA. The modern-day conservatives carry that banner for those who were always enfranchised and that gives them a lot of deference and power in the system.
Similarly I think you'll tend to not find liberals that are the sort of career kamikazes who attack coworkers...I think part of this is because consequences would accrue to liberals given whose interests they champion vis-à-vis the ruling structure of the USA.
As I think about it, a major downside of liberals attacking the legitimacy of the court is that more or less all modern civil rights stem from Supreme Court precedent either backing up legislation (such as the Civil Rights Act) or reversing bad decisions (such as much of the execrable Taney court).
If we argue that the Supreme Court rulings are illegitimate because it is arguably a rightwing political body unethically stacked with right-wing hacks by a wannabe dictator, what is our way forward? What does that mean for our rights?
So much of my own freedom comes from the Civil Rights Act of 1964, as well as various and sundry other statutes, some built off that act. I can't count on the Constitution to guarantee my rights...atrocities like Jim Crow coming out of Plessy v. Ferguson are all post-14th Amendment. Without a Supreme Court to fairly enforce these, what happens later?
What does a liberal say? Is the court only legitimate, are my fellow justices only legitimate when they rule the same way I do?
Indeed this is also kind of the disproportionate allowance of dehumanization of Democrats and liberals in political speech in a way that would result in massive shat bricks if said about Republicans. I talk about this often but the way in which it's completely acceptable for people to dump on entire Democratic-majority states and cities, yet the reverse does not acceptably happen, is part and parcel of this. This is why I feel there's consequences if, say, Brown talked about Gorsuch and Kavanaugh the way the liberals would be talked about or dismissed.
Yep--it'd be nice if they could pick ones who at least wouldn't put up some pretense about how awesome Gorsuch is when he abandons precedent to get the policy outcome he wants (if he's a political hack, it does NOT protect the integrity of the court to pretend that is not the case). Pick young, healthy people (it's crazy to have those qualifications, but that is the game we are playing now) and maybe normalize the idea that when you hit a normal retirement age (e.g., you're eligible for social security), step down the moment a Democrat can replace you. It's not like your life is over, you can always take another prestigious job.
That's fair though I think with the conservative bias of the Senate (and the fact that we need to blue up more states for this to work), it is never a given that a Democrat would even get to fill the seat. Republicans have no trouble holding a seat open till a Republican maladministration is seated, because the institutional advantage gives them that power.
This is probably due to a bias towards institutional knowledge among Democrats. Joe Biden is probably the most triumphant example of this as the guy's vast wealth of institutional knowledge allows him to work through the sausage-making in the Senate. Institutional knowledge is critical for good governance and jurisprudence.
By contrast, when you are elected to office to destroy the federal government and the lives of vulnerable minorities protected by the same, you don't need institutional knowledge. I think the Democrats also, due to natural ideological diversity, could never support a structure like the Federalist Society on our side. After all it does the 'hard' work of creating the model legislation that's rapidly deployed and their elected ignorant meat puppets can just sign it.
These two diametrically opposed goals though mean this is a much tougher path for Democrats when dealing with judicial nominees. By what standard would we vet Democratic nominees, especially young ones? I say this as Biden is doing his best to fill vacancies with apparently capable young people.
Though remember these justices don't work totally on their own. They have staffs of clerks, incredibly tough and prestigious jobs to get, and the clerks bring all sorts of expertise (and justices themselves can drawn on information and precedent offered by amicus briefs). I agree we shouldn't be hiring SCOTUS justices right out of law school, but nothing is really stopping us from picking ones a couple decades out of law school.
Another note on RBG--yes, hindsight is 20/20, but keep in mind her mindset in 2014 (her last chance to be replaced by Obama and a Dem Senate--yes, filibuster existed, but no way would Reid keep it in place if McConnell abused it for a replacement-level liberal SCOTUS pick, he was willing to end that rule for Circuit judges so there's precedent). At that time, Kennedy was the swing justice, RBG had mused about Roe not being good law (she supported abortion rights but thought alternative reasoning should have been used) and she was very much in the SCOTUS bubble, palling around with Scalia and thinking of her colleagues as philosophers above petty politics. She felt she had no reason to retire, and perhaps Obama sort of agreed with her (he certainly didn't turn on major pressure--we'd have seen a lot of leaks otherwise). Hillary was likely to succeed him, Dems had just held Senate seats in ND, MO, MT and WV, so there was time, right?
Yes, she made the wrong decision, and we're paying for it, but maybe we can learn from it now. I would hope a "wise" Latina would have learned from the naivete of the last decade.
I think the nomination dynamics also depend on a lot of what the replacement level would be--that is, it'd have been easier for Obama to replace RBG with a liberal (a one for one exchange) than it would have been for him to replace Scalia with even a moderate. Notice how even a conservative like Mitt Romney voted for KJB because she was a liberal replacement for another liberal (Breyer). I doubt that would have happened if she was replacing Thomas. So while yes there's a risk Sotomayor's replacement could be blocked by Republicans plus Manchinema, I suspect it'd be the same dynamic as replacing Breyer simply because it wouldn't be a net loss for conservatives. Plus, if her replacement is also Hispanic, a lot of moderates and even some conservatives may not like the optics of blocking them. And, if there really is a risk of blocking, she could make her retirement contingent on a replacement being voted on.
Fernandez's comments are absurd, and she should be embarrassed to make them. We do not OWE our justices or politicians anything, it is they who owe the people they serve. If Sotomayor was really a "wise" Latina, she'd notice that the Senate map isn't great for liberals, 15 years on the bench is a pretty solid career already, and her biggest legacy will be who gets to replace her. Either Biden will do it with a Dem Senate, or...someone else will. Does she want her legacy to be Aileen Cannon (don't say it couldn't happen!)? Where the swing justice is no longer Kegs, but Gorsuch?
Sotomayor should retire only when SHE decides to do so.
But, her emails
She’s 69, has managed her diabetes successfully since she was a child, and has great medical care.
This is a ridiculous conversation.
Sotomayor has diabetes not cancer.
What makes anybody think that the GOP will let Biden nominate and install another justice?
Honestly, I don't feel that we should have to fight this hard for things like voting rights, library books, abortion or environmental protection. It's corruption. Even when ballot measures pass in states, Republicans simply don't implement them.
I'm not hopeless though. I think that Dems will do fine this year - if for no other reason than trump has emptied the coffers of the RNC which means they have no ground game and Republican candidates have to self-fund. Also, it's shocking how many men underestimate how angry most women are about overturning Roe v. Wade. The same people who freaked out about wearing masks-during a pandemic-act like women are overreacting and not "embracing their nature". It's just - a lot.
Great breakdown, appreciate the historical perspective.
What difference would it make to replace one liberal justice with another now? If trump wins the SC will just be an arm of a fascist state. He'll fire all the liberal justices in the country if not worse.
I for one don't need to see Lindsay screaming at any nominee questioning how much time they spend in church as a prerequisite to being confirmed by the Senate.
Authoritarian regimes don't have a court system that ever rules against what Dear Leader wants.
So here's a thing I wonder. Do Republicans do this with their champions on the Supreme Court? When Antonin Scalia was on death's door, were there pundits like the ones referenced here calling for him to retire?
This just feels so...I don't know, like unilateral disarmament? And then what will happen, given the conservative structural advantage in the Senate as well, we're going to end up with another wedge against Democrats. It feels like only Democrats get affected by wedge issues; Republicans know to stick together and ally with other conservatives.
Scalia's death came all of a sudden--Republicans' only care then was that Obama not be able to pick his replacement because it was doubtful (with reason) that Obama would pick anyone that conservative. Kennedy did act strategically, retiring in time for Trump to pick Kegs, but you didn't hear calls for Thomas or Alito to retire in 2019 probably because Republicans know they have a better advantage with the Senate than Democrats do. Plus, they hadn't been burned by an untimely death (though Scalia came close) the way Democrats have, certainly not in the last 50 years or so.
Who's to say the Republicans in the Senate would allow us to name her successor? After all, it's an election year!
Yeah assume not. Conservatives will just keep that seat locked up until Americans stupidly grant Republicans even more power to fuck us.
Mmmm, day drinking and movie matinees. Good article.
I’m a lot more optimistic about Biden winning, but these dark hints about Sotomayor’s health could use some illumination. Just how sick is she?
She's diabetic, which apparently can shorten a life span by a decade or more, and she has a family history of early natural death. That said, she likely has great medical care, too.
It's really a crap shoot, but I think the pressure is less "she's likely to die soon!" than it is "she's 70, and we may not have a chance to put someone on the Court again for another decade or more". The analogy here is Thurgood Marshall, who at the end of Carter's tenure probably figured he wouldn't have to wait another 12 years for a Democrat to pick his replacement.
Instead, his replacement is still on the Court today (Thomas was in his 40s when Bush picked him).
Here is the main problem lie with Democrats; competence matters for them. For Republicans, any warm body that can parrot the Federalist Society orders gets installed. This is also why Aileen Cannon is going to get fast-tracked onto the court if Americans are short-sighted enough to reward President Klan Robe with another term.
Democratic nominees actually have to be competent and experienced, so that means we don't pick fresh-out-of school farm team redshirt quislings like Barrett. And of course, people like that they always have a chance of turning Republican traitor because if there's one thing Democrats love, it's someone talking a big game and making them swoon with pretty words.
Yeah--Dems don't have quite the vetting process of the Federalist Society, though their picks going back to Byron White have generally been reliably liberal. It's true they wont' pick people as hilariously inexperienced as Republicans will, but you can still find fairly experienced judges in their 40s or early 50s. I think a part of this also is that if justices normalized being on the bench for only a decade or so, and retiring when the next Democrat is POTUS so a new justice gets a shot, this wouldn't be such an issue--but we have gotten to a point where we expect justices to hold on until death and put 30 or 40 years on the bench.
Exactly. To Seth’s point, though, who cares about qualifications considering the current system? Sotomayor appears in public with Barrett, which is like Scorsese regularly appearing at film conferences with Michael Bay. Barrett still has the same country club pass, just like Cannon will have if she’s put on the court. The remaining liberals won’t say anything negative about her and will probably even rave in interviews about how Cannon brings everyone fresh-baked cookies on Mondays.
Democrats should also start picking reliable liberal judges who are in their mid 40s and can serve for decades.
I do think that probably a lot of liberals aren't radicals, nor are bomb-throwers...and the system as designed doesn't reward liberal bomb-throwers. Modern liberalism is, after all, opposed to a number of the original founding principles of the USA. The modern-day conservatives carry that banner for those who were always enfranchised and that gives them a lot of deference and power in the system.
Similarly I think you'll tend to not find liberals that are the sort of career kamikazes who attack coworkers...I think part of this is because consequences would accrue to liberals given whose interests they champion vis-à-vis the ruling structure of the USA.
As I think about it, a major downside of liberals attacking the legitimacy of the court is that more or less all modern civil rights stem from Supreme Court precedent either backing up legislation (such as the Civil Rights Act) or reversing bad decisions (such as much of the execrable Taney court).
If we argue that the Supreme Court rulings are illegitimate because it is arguably a rightwing political body unethically stacked with right-wing hacks by a wannabe dictator, what is our way forward? What does that mean for our rights?
So much of my own freedom comes from the Civil Rights Act of 1964, as well as various and sundry other statutes, some built off that act. I can't count on the Constitution to guarantee my rights...atrocities like Jim Crow coming out of Plessy v. Ferguson are all post-14th Amendment. Without a Supreme Court to fairly enforce these, what happens later?
What does a liberal say? Is the court only legitimate, are my fellow justices only legitimate when they rule the same way I do?
Indeed this is also kind of the disproportionate allowance of dehumanization of Democrats and liberals in political speech in a way that would result in massive shat bricks if said about Republicans. I talk about this often but the way in which it's completely acceptable for people to dump on entire Democratic-majority states and cities, yet the reverse does not acceptably happen, is part and parcel of this. This is why I feel there's consequences if, say, Brown talked about Gorsuch and Kavanaugh the way the liberals would be talked about or dismissed.
Yep--it'd be nice if they could pick ones who at least wouldn't put up some pretense about how awesome Gorsuch is when he abandons precedent to get the policy outcome he wants (if he's a political hack, it does NOT protect the integrity of the court to pretend that is not the case). Pick young, healthy people (it's crazy to have those qualifications, but that is the game we are playing now) and maybe normalize the idea that when you hit a normal retirement age (e.g., you're eligible for social security), step down the moment a Democrat can replace you. It's not like your life is over, you can always take another prestigious job.
That's fair though I think with the conservative bias of the Senate (and the fact that we need to blue up more states for this to work), it is never a given that a Democrat would even get to fill the seat. Republicans have no trouble holding a seat open till a Republican maladministration is seated, because the institutional advantage gives them that power.
This is probably due to a bias towards institutional knowledge among Democrats. Joe Biden is probably the most triumphant example of this as the guy's vast wealth of institutional knowledge allows him to work through the sausage-making in the Senate. Institutional knowledge is critical for good governance and jurisprudence.
By contrast, when you are elected to office to destroy the federal government and the lives of vulnerable minorities protected by the same, you don't need institutional knowledge. I think the Democrats also, due to natural ideological diversity, could never support a structure like the Federalist Society on our side. After all it does the 'hard' work of creating the model legislation that's rapidly deployed and their elected ignorant meat puppets can just sign it.
These two diametrically opposed goals though mean this is a much tougher path for Democrats when dealing with judicial nominees. By what standard would we vet Democratic nominees, especially young ones? I say this as Biden is doing his best to fill vacancies with apparently capable young people.
Though remember these justices don't work totally on their own. They have staffs of clerks, incredibly tough and prestigious jobs to get, and the clerks bring all sorts of expertise (and justices themselves can drawn on information and precedent offered by amicus briefs). I agree we shouldn't be hiring SCOTUS justices right out of law school, but nothing is really stopping us from picking ones a couple decades out of law school.
I do believe we would be able to next time. That said, "shit happens" too and a young star could get waylaid in some way. It's all very frightening.
Another note on RBG--yes, hindsight is 20/20, but keep in mind her mindset in 2014 (her last chance to be replaced by Obama and a Dem Senate--yes, filibuster existed, but no way would Reid keep it in place if McConnell abused it for a replacement-level liberal SCOTUS pick, he was willing to end that rule for Circuit judges so there's precedent). At that time, Kennedy was the swing justice, RBG had mused about Roe not being good law (she supported abortion rights but thought alternative reasoning should have been used) and she was very much in the SCOTUS bubble, palling around with Scalia and thinking of her colleagues as philosophers above petty politics. She felt she had no reason to retire, and perhaps Obama sort of agreed with her (he certainly didn't turn on major pressure--we'd have seen a lot of leaks otherwise). Hillary was likely to succeed him, Dems had just held Senate seats in ND, MO, MT and WV, so there was time, right?
Yes, she made the wrong decision, and we're paying for it, but maybe we can learn from it now. I would hope a "wise" Latina would have learned from the naivete of the last decade.
I think the nomination dynamics also depend on a lot of what the replacement level would be--that is, it'd have been easier for Obama to replace RBG with a liberal (a one for one exchange) than it would have been for him to replace Scalia with even a moderate. Notice how even a conservative like Mitt Romney voted for KJB because she was a liberal replacement for another liberal (Breyer). I doubt that would have happened if she was replacing Thomas. So while yes there's a risk Sotomayor's replacement could be blocked by Republicans plus Manchinema, I suspect it'd be the same dynamic as replacing Breyer simply because it wouldn't be a net loss for conservatives. Plus, if her replacement is also Hispanic, a lot of moderates and even some conservatives may not like the optics of blocking them. And, if there really is a risk of blocking, she could make her retirement contingent on a replacement being voted on.
Fernandez's comments are absurd, and she should be embarrassed to make them. We do not OWE our justices or politicians anything, it is they who owe the people they serve. If Sotomayor was really a "wise" Latina, she'd notice that the Senate map isn't great for liberals, 15 years on the bench is a pretty solid career already, and her biggest legacy will be who gets to replace her. Either Biden will do it with a Dem Senate, or...someone else will. Does she want her legacy to be Aileen Cannon (don't say it couldn't happen!)? Where the swing justice is no longer Kegs, but Gorsuch?
I disagree re Ginsburg. By refusing to resign she did untold damage to her legacy and probably millions of women. It's sad but true.
Can't argue with that. I understand her mindset, but it was deeply flawed, and at the end of the day her legacy will be tarred by who replaced her.