Saturday, October 10, 2020

Joe Biden versus “democratic norms”


No one who claims to favor Biden over Trump on the grounds of protecting “democratic norms” can, at this point, be speaking in good faith.  They are either culpably deceiving themselves or cynically trying to deceive others.  Packing the Supreme Court would be as radical a violation of “democratic norms” as any president has ever attempted.  It would destroy the independence of the judiciary, making of the court a dictatorship for the party in power.  Yet Biden and Harris persistently refuse to say whether they favor court-packing.  Biden has now said that voters “don’t deserve” to know his position on this absolutely crucial issue before the election – even though he acknowledges that “it’s a great question” and says he doesn’t blame people for asking it!  Can you imagine the hysteria that would ensue if Trump gave such a lunatic answer to a question that momentous?  This is reason enough not to vote for Biden, whether or not you vote for Trump. 

The reason Biden will not answer, of course, is that his party has moved so extremely far to the left that he can no longer reject court-packing and remain politically viable.  And the depth of his cynicism is evident from the fact that he has himself in the past emphasized how extremely dangerous to a free society packing the court would be.  In 2005, he said that President Roosevelt’s attempt to pack the court in the 1930s showed that he had been “corrupted by power” and that “it took an act of courage on the part of his own party institutionally to stand up against this power grab.”  He condemned “politicians bending to… political exigency” rather than upholding the country’s institutions.  Just last year, Biden said that if Democrats packed the court, “we’ll live to rue that day” and “we begin to lose any credibility the court has at all.”

Yet now, having himself been “corrupted” by the prospect of attaining power, Biden is “bending to political exigency” rather than having the “courage” to “stand up against” the extremist elements in his party – all in the name of protecting democracy against Trump. 

Those extremist elements include his running mate, who was one of eleven Democratic presidential primary candidates who said they were open to packing the Supreme Court.  By contrast, even Bernie Sanders rejected the idea, which shows you how extreme it is.  It is so extreme that even the Left’s hero Ruth Bader Ginsburg – in whose name they would pack the court – was opposed to it, as she made clear in an NPR interview last year:

“Nine seems to be a good number.  It's been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court” …

Roosevelt's proposal would have given him six additional Supreme Court appointments, expanding the court to 15 members.  And Ginsburg sees any similar plan as very damaging to the court and the country.

“If anything would make the court look partisan," she said, “it would be that – one side saying, ‘When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

That impairs the idea of an independent judiciary, she said.

End quote.  However bad you think Trump is, he has not transformed the country’s basic political institutions.  His critics shrilly accuse him of being a tyrant and a dictator – perhaps the more paranoid and unhinged among them even believe this nonsense – but the reality is that he has no greater power over the courts, the Congress, the press, and the voters than any other president has had.  If he did, he wouldn’t be in such dire political shape right now.  People who say things like: “Trump’s a dictator!  That’s why he’s about to be voted out!” need to Google the phrase “cognitive dissonance.”

By contrast, Biden is the Kerensky-like Trojan horse for a party that has been so thoroughly taken over by extremists that even its “moderates” are now open to court-packing, not to mention other dangerously illiberal tactics and proposals.  They would fundamentally transform our political institutions in the direction of a one-party state. 

It’s that simple.  Trump’s critics are always piously going on about how preserving “democratic norms” is more important than securing short-term political advantage.  It’s time for them to show whether they really mean it.

Related posts:

Aquinas contra sedition and factional tyranny

The rule of lawlessness

Plato predicted woke tyranny

203 comments:

  1. It's the essence of democracy to give way to tyranny, Professor Feser. The Democratic Party turning America into a one-party state under their control would be a mere formalization of what is in fact reality.

    ReplyDelete
    Replies
    1. Au contraire: it is typical of democracy to give way to tyranny. That is due to a tendency built into democracy, i.e. to "be at risk" for a certain kind of dissolution. But a democracy that (somehow) managed to hold the tendency at bay for 500 years would not, therefore, be a bad democracy for having done so, any more than it is "of the essence" of human nature to succumb to death by cancer (even though we have a tendency to do so if we live long enough past other causes of death). Thus, it does not belong to its very essence to give way to tyranny.

      Dying is not the essence of any political order: being able to die is the part of all contingent beings, but actually dying destroys the thing (and its essence) and all being tend toward their survival.

      Delete
  2. "It would destroy the independence of the judiciary, making of the court a dictatorship for the party in power."

    That's no guarantee as Republicans have learned with
    their pick of judges (obergefell, roe, Casey, bostock, etc)

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    Replies
    1. Absolutely correct. How many times have liberals been disappointed in a Democratic nominee? Any in recent memory?

      As you note, we can think of a lot of Republican ones who should never have been nominated.

      Delete
  3. OP
    “It would destroy the independence of the judiciary, making of the court a dictatorship for the party in power”
    The Republicans already did that.

    The Republicans are court packers.

    The Republicans used the filibuster to keep open large numbers of court vacancies, leading to the Democratic elimination of the filibuster for lower court nomination confirmations, but retaining the filibuster for Supreme Court nominations.

    That allowed Trump to fill those lower court vacancies.

    But, the Republicans also packed the highest court, the Supreme Court, by eliminating the filibuster for Supreme Court justice nomination confirmations and then refusing to do their constitutionally mandated duty to provide advice and consent for Obama’s nomination.

    So, the cabal of McConnell/Trump packed the Supreme Court and packed the lower courts.

    We, the majority, demand redress of this attack on democratic norms and brazen court packing to destroy the independence of the judiciary already perpetrated by the Republicans.

    “However bad you think Trump is, he has not transformed the country’s basic political institutions.”
    Yes he has, he has conspired to pack the court.

    “Trump’s critics are always piously going on about how preserving “democratic norms””
    Which the Republicans have violated by already packing the court.

    The fact is that the US constitution does not set the size of the court, rather, that function was left to the legislative process by our founders.

    It is far past time to play hard ball right back at those Republican court packers.

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    Replies
    1. How are you defining the terms "court packing"?

      Delete
    2. Trump has not packed the court because the number sits at nine. Packing the court involves increasing the number.

      All he did was take advantage of the parties' refusal to cooperate or meet in the middle. Any Democrat would have done the same. To cry about Republicans doing it is nothing but hypocrisy

      At least when Republicans play hardball over the court, they stick to political maneuvering instead of trying to completely destroy the nominee, like Democrats do.

      Delete
    3. Kevin,
      "Trump has not packed the court because the number sits at nine. Packing the court involves increasing the number."
      Wrong. Packing the court is a process by which the party in power uses manuevers that circumvent regular order in order to place an abnormally large number of judges in the lower courts and justices in the Supreme Court of the choosing of the party in power.

      " Any Democrat would have done the same."
      Wrong. Democrats hear the nominee and vote for or against him or her. The Republicans packed the court by refusing to do their duty to provided advice and consent.

      We, the majority, are fed up with the tyranny of the minority.

      McConnell/Trump and all their henchmen are the most brazen, dictatorial, tyrannical court packers, becuase they have already packed the court by hypocritically refusing to even take up the hearing of Merrick Garland, now with even much less time they are going to totally contradict themselves and pack in another justice.

      That's it, the Republicans have been hitting below the belt, packing the lower courts and now packing the Supreme Court, so now the Democrats are going to take the gloves off.

      Because the Republicans have already packed the court by refusing to even take up the hearing of Merrick Garland I completely support Biden expanding the court as a constitutional means of rebalancing the tyrannical power grab already perpetrated by the Republicans.

      Delete
    4. "Packing the court is a process by which the party in power uses manuevers that circumvent regular order in order to place an abnormally large number of judges in the lower courts and justices in the Supreme Court of the choosing of the party in power."

      Since when did it mean that? Court packing related to adding extra judges of your party's liking. If there are vacancies, they can be filled. The "maneuvers" you speak of are pretty typical. The senate was under no obligation to take up the hearing of Garland. If you don't like how the senate is run, vote them out. If the Dems have the senate and did the same, I might find the actions incorrect or even wrong, but I wouldn't consider it court packing or even outside of the realm of their powers.

      If democratic norms matter so much to you, I hope you don't complain next time the GOP takes the House and decides to make up an impeachment article out of thin-air, with no judicial support, and attempt to impeach the President on it.

      Delete
    5. As I thought, Stardusty is using a completely different definition of "court packing." Nonsense from a troll, as always.

      Delete
    6. Billy,
      "Since when did it mean that?"
      Since the Republicans packed the court by refusing to take up the nomination of Merrick Garland yet, in an act of gross and brazen hypocrisy, are now packing an additional justice.

      "Court packing related to adding extra judges of your party's liking."
      Which is exactly what the Republicans did, they added and extra justice of their liking.

      "The senate was under no obligation to take up the hearing of Garland."
      And congress is under no obligation to refrain from expanding the court.

      The gloves are coming off. The McConnell/Trump cabal has already packed the court so we, the majority, intend to bring the balance back.

      Delete
    7. Geo,
      "Nonsense from a troll,"
      Really, then by all means do tell the rational justification for refusing to even vote on Merrick Garland but insisting on a vote on Amy Barrett.

      Yes, and do tell how McConnell insisted that the next president should select the justice in the one case, but with only days to the election, somehow, now it makes sense to vote on a new justice.

      How is that not court packing by brazen hypocrisy?

      You see, Geo, and Dr. Feser, and all the rest, your little half baked excuses might placate your Fox parallel universe brethren, but we, the majority, got cheated, so now we, the majority, are coming for you, the tyrannical minority.

      The gloves are coming off. Two can play hardball.

      If we sweep the house, senate, and executive, we will restore the balance by the constitutional means available to we, the majority.

      Expanding the court after the Republican court packing will be justice restored.

      Delete
    8. Really, then by all means do tell the rational justification for refusing to even vote on Merrick Garland but insisting on a vote on Amy Barrett.

      There is no justification that avoids hypocrisy, but the rational justification is political power. Yes, Democrats do this too. You're utterly delusional if you think Democrats play fair.

      How is that not court packing by brazen hypocrisy?

      You are mistaking court packing with court stacking. Packing is literally increasing the number of justices on the court so you can swing things in your favor. We sit at nine. No packing has occurred, by definition. You can't just make up definitions, otherwise no communication is possible.

      might placate your Fox parallel universe brethren

      Your side is equally prone to bias. Multiple studies have proven it if you don't believe me.

      but we, the majority, got cheated

      What law was broken to cheat you, "the majority"? Political "norms" are meaningless, all that matters are constitutional requirements.

      The gloves are coming off. Two can play hardball.

      You think only one side has been playing hardball?

      If we sweep the house, senate, and executive, we will restore the balance by the constitutional means available to we, the majority.

      What does this "balance" look like?

      Delete
    9. Kevin
      “but the rational justification is political power.”
      Ok, by that “rational justification” we the majority will expand the court upon obtaining the political power to do so.

      “You are mistaking court packing with court stacking”
      Ha Ha Ha. Which bodily orifice, exactly, did you pull that out of?

      “No packing has occurred, by definition.”
      Really? Please do cite the source of this “definition”.

      “What law was broken to cheat you,”
      What law would be broken to expand the court?

      See, Kevin, two can play at your little game.

      Your little excuses might sound great to your little minority, but we, the majority, are fed up with it.

      “What does this "balance" look like?”
      It looks like the majority seating the majority of the justices.

      We, the majority, voted for Al Gore.
      We, the majority, voted for Hillary Clinton.
      We, the majority, will vote for Joe Biden.
      We, the majority, support the expansion of the court to bring the balance back against the hypocritical tyranny of the minority.

      Delete
    10. Stardusty, you are equivocating between the spoils system (where you put your people into positions) and court packing (where you create new judge seats simply to put people into them). Pure insanity.

      Delete
    11. Classic Stardusty sanctimony. "We, the PEOPLE! The MAJORITY!" By his argument, Democrats "should have" won every presidential election since 1993, and everything else has been "stolen". Like every dictator in history, he justifies his every action by claiming that he's supported by "the majority", therefore he's right. Hey Stardusty, slavery and Jim Crow were both supported by the majority at one point or another - were they morally right at the time? The rest of the post is your typical Stardusty prophesying our righteous downfall at the hands of the Great God, the Majority.

      Delete
    12. Ok, by that “rational justification” we the majority will expand the court upon obtaining the political power to do so.

      Alrighty then.

      Which bodily orifice, exactly, did you pull that out of?

      Ten seconds of Google research to verify what court packing is. If that is related to an anatomical feature, I suppose it would be a brain.

      Really? Please do cite the source of this “definition”.

      A Google search. Here is the New York Times, for example:

      "Expanding the court — or court packing — is an idea commonly associated with President Franklin D. Roosevelt"

      Expanding the court is called court packing, according to the New York Times and every other hit on the Google search. Do you have a source for any other commonly applied definition in legal, political, scholarly, or mainstream media organizations?

      What law would be broken to expand the court?

      There is no law against expanding the court. It's already been expanded more than once throughout history. I'm asking you how you were cheated, which would mean the process was not followed.

      See, Kevin, two can play at your little game.

      What game is that? Project Beliefs onto People and Attack Them for It?

      Your little excuses might sound great to your little minority, but we, the majority, are fed up with it.

      What excuses? What minority? I didn't vote for Trump.

      It looks like the majority seating the majority of the justices.

      Justices are confirmed by the Senate. Republicans are the majority party. The majority seated the justices per the rules. If the founders wanted Supreme Court justices voted in by the masses, they'd have written it that way.

      We, the majority, voted for Hillary Clinton.

      And you lost per the rules.

      We, the majority, support the expansion of the court to bring the balance back against the hypocritical tyranny of the minority.

      I'm sure those living under tyranny would agree that following constitutional procedure to appoint and confirm Supreme Court justices is truly the hallmark of evil.

      Delete
    13. your little minority

      One further thought. Trump lost the legally meaningless popular vote by two percent. That is not a "little minority" by any rational definition, but you seem to have a malleable concept of definitions. Like Trump. Peas in a pod!

      Delete
    14. "Do you have a source for any other commonly applied definition in legal, political, scholarly, or mainstream media organizations?"

      Of course he doesn't, because the only source for this definition is his own opinion. I fully expect his response to either ignore your question or claim his position is "obvious" without justification.

      Delete
    15. Geo"
      Stardusty, you are equivocating between the spoils system (where you put your people into positions) and court packing (where you create new judge seats simply to put people into them)."
      Nope, no equivocation, packing can be done by more than one means.

      The Republicans packed the court by hypocritically failing to act on Merrick Garland yet now they will install Amy Barrett.

      Now, if we sweep the senate, house, and executive, we are going to to bring the balance back by expanding the court, which will be justice restored.

      Delete
    16. Dusty, repeating yourself isn't an argument. It doesn't matter if you think the Republicans were wrong to failing to act on Merrick Garland or for filling in a vacancy, that's not court packing, and you can't change the definition of words for your own convenience.

      Delete
    17. Kevin,
      "Expanding the court — or court packing — is an idea commonly associated with President Franklin D. Roosevelt"
      Can you spot your own fallacy?
      If EC then CP
      CP
      Therefore EC

      No? Ok, I will help you out. You are committing the fallacy of affirming the consequent, which means the fallacy of concluding the antecedent given an affirmed consequent.

      Court packing is just what the plain text of the term says, packing justices into the court by some means. The means is not specified in the plain text of the term and there need not be only one means.

      Here are some ways to pack the court.
      1.Filibuster to block progress of the nomination until the nomination expires and the new nomination is made by your president.
      2.Fail to take up the nomination until the nomination expires and the new nomination is made by your president.
      3.Expand the number of judges or justices so those nominations are made by your president.

      “I'm asking you how you were cheated, which would mean the process was not followed.”
      The process of regular order and democratic norms was not followed with Merrick Garland.

      If failing to take up Merrick Garland and then installing Amy Barrett is not a violation of democratic norms then expanding the court is not a violation of democratic norms.

      “Justices are confirmed by the Senate. Republicans are the majority party. The majority seated the justices per the rules. If the founders wanted Supreme Court justices voted in by the masses, they'd have written it that way.”
      Ok, fine.

      The founders provided that the congress shall determine the size of the court, if they had wanted it otherwise they’d have written it that way.

      “And you lost per the rules.”
      Ok, fine. Then Dr. Feser can kindly spare us the hyperbolic language about congress expanding the court somehow “would destroy the independence of the judiciary”, “making of the court a dictatorship for the party in power”, “as radical a violation of “democratic norms””.

      Dr. Feser and all his supporters here don’t get to have it both ways, we, the majority, aren’t going to lay down for that.

      The Republicans packed both the lower courts and the Supreme Court. If that is OK with you because it was done within the rules then expanding the court is OK with me because expanding the court is also within the rules.

      Delete
    18. Geo,
      "Dusty, repeating yourself isn't an argument"
      Right, the argument is the argument every time it is stated.

      "that's not court packing, and you can't change the definition of words for your own convenience. "
      You are not the god of the English language.

      Operating a car down the road is driving. That does not mean operating a car down the road is the only sort of driving.

      You don't get to restrict the definition of words for your own convenience.

      Delete
    19. Here are some ways to pack the court.

      Lists three things, two of which aren't actually court-packing.

      Is this a real argument?

      Delete
    20. Can you spot your own fallacy?

      So the entire rest of the world - including this quote from the New York Times - has the definition wrong, and you are right?

      Packing the court refers to expanding the number of justices. When literally anyone in government or media or in legal or historical contexts uses the phrase, that's what they mean. Unless you can cite a source using the term as you are attempting to define it?

      If failing to take up Merrick Garland and then installing Amy Barrett is not a violation of democratic norms then expanding the court is not a violation of democratic norms.

      A violation of norms is not cheating any more than playing a reverse card in Uno is cheating. The rules allow it. I fully agree what they did to Garland was pathetic, but it wasn't cheating.

      The Republicans packed both the lower courts and the Supreme Court.

      No they didn't. As the NYT and everyone else affirmed, packing the court refers to expanding the number of justices on the court. Unless you have a source? Cite a source and I'll happily admit I'm wrong.

      If that is OK with you because it was done within the rules then expanding the court is OK with me because expanding the court is also within the rules.

      You seem to think I'm bothered by the idea of expanding the court.

      Delete
    21. Kevin,
      "So the entire rest of the world - including this quote from the New York Times - has the definition wrong, and you are right? "
      You still do not get your fallacy. I laid it out clearly.

      The NYT defined EC as CP. The NYT did not define CP as EC. See the difference?

      FB can also be a CP.
      NT can also be a CP.

      An apple is a fruit. But it is a fallacy to state that if one has a fruit then one must have an apple.

      The NYT can define an apple as a fruit. That in no way obligates me to refrain from calling an orange a fruit.

      Oh, by the way, claiming to have "the entire rest of the world" on your side is, well, let's just say, a tad grandiose.

      Delete
    22. Dusty, you're not trying to define an apple as a fruit, and then pointing out that other types of fruit exist. You're trying to define an apple as an orange.

      Delete
    23. Geo,
      Whatever the label, expanding the court is entirely justified given the Republican actions regarding Merrick Garland and Amy Barrett.

      Delete
    24. "Whatever the label, expanding the court is entirely justified given the Republican actions regarding Merrick Garland and Amy Barrett."

      Perfectly legitimate constitutional actions...

      Delete
    25. Stardusty,

      Whatever the label, expanding the court is entirely justified given the Republican actions regarding Merrick Garland and Amy Barrett.

      That's a better, or at least, more honest, argument. But consider this: the incentives of a democratic political party are always to monopolize its hold over the populace. Democracy can end in no other way. If you want to break this, then that’s fine. But recognize that this is what you are doing. You aren’t trying to “ensure democratic norms.” You are trying to monopolize power so that the other side doesn’t do it first.

      Delete
    26. Called it - Dusty didn't provide any justification for his expansive and atypical definition of court-packing, instead simply acting as if it were obviously true.

      Delete
    27. Then, he went on to tacitly admit that the definition of the word doesn't really matter, and that even if the things Republicans did aren't court-packing, it is still just and good to engage in court-packing to undo them.

      Delete
    28. Well I didn't expect him to admit he was wrong. I just enjoy watching the strategies employed in the attempt to avoid it.

      Delete
    29. Geo,
      "You are trying to monopolize power so that the other side doesn’t do it first."
      The other side already has done it first. Expanding the court isn't to monopolize power for the Democrats, it is to restore a just balance of power already unjustly monopolized by the Republicans.

      The Republicans already moved to unethically monopolize the Supreme Court by failing to do the democratically normal thing, bring the president's nomination to the floor for a vote.

      The Republicans have already abnormally monopolized power by now installing Amy Barrett.
      All the Democrats will do by expanding the court is bring the balance of democracy back after the Republicans abnormally monopolized power.

      Delete
    30. Cantus,
      "Called it"
      You called squat. I have already written many hundreds of words clearly demonstrating that packing the court can be accomplished by several means, not just expanding the court.

      You either did not read or did not comprehend my many words clearly demonstrating that fact.

      "Then, he went on to tacitly admit that the definition of the word doesn't really matter, and that even if the things Republicans did aren't court-packing,"
      Wrong again.

      There are many ways to express any particular point. I can reword the above arguments in a variety of ways. Which of those wordings are employed is only of pedagogical importance. It is the rational content of the arguments that is of core importance.

      Court packing is a process by which one party changes the ratio of justices in their favor by abnormal means, by deviations from regular order, by subversion of democratic norms.

      The Republicans already did that.

      Of course the Republicans are already guilty of packing the court, but that particular term is not itself an argument, it is what they did that requires redress.

      The Republicans used abnormal unethical hypocritical tactics to unjustifiably alter the ratio of justices, so now the Democrats are going to use the constitutionally available means to bring the democratic balance back to the Supreme Court.

      Expanding the Supreme Court is a case of fighting fire with fire. One would not be justified in setting the fire if there were no fire to begin with, but the Republicans have already started the fire, so now we are going to use a controlled burn to make a firebreak to stop the damage the Republicans have already perpetrated.

      Delete
    31. Republican court packing is like jury-packing.

      The size of the jury is not changed in jury-packing. The size of the court does not have to change in court packing.

      "Definition of jury-packing
      : the practice or an instance of illegally or corruptly influencing a jury by making available for jury service persons known to be biased or partial in a particular case to be tried"

      The Republicans have corrupted regular order, corrupted democratic norms, have corrupted legislative integrity by their brazen act of hypocrisy in the Merrick Garland/Amy Barrett nominations.

      Just as jury packing does not change the size of the jury, court packing does not need to change the size of the court.

      The Republicans have already packed the court so now the Democrats are going to bring the court back to democratic balance by using the legal and constitutional process of changing the number of justices on the Supreme Court.

      Delete
    32. Can we call the Democratic Party's efforts to attract immigrants to our country "electorate-packing"?

      Delete
    33. Oh, you "demonstrated" that your definitions were correct, did you? Strange, all I remember is unsupported assertions.

      OK, answer me this Dusty: did Obama "pack" the DC Circuit Court of Appeals in 2013, by filling an unusually high number of vacancies? Politifact seemed to disagree:

      https://www.politifact.com/factchecks/2013/jun/05/chuck-grassley/barack-obama-trying-pack-dc-circuit-court-appeals/

      So, were Obama's actions an instance of court-packing or not?

      Delete
    34. So basically Stardusty is co-opting the definition of court packing so that he can engage in whataboutism against the Republicans? So now he is off-base on two accounts. His accusations against the Republicans and his desire to pack the court. How many times can someone screw up in a comment thread? "Shoot for the stars" they say and you'll at least get Stardusty!

      Delete
    35. Geo,
      "Can we call the Democratic Party's efforts to attract immigrants to our country "electorate-packing"?"
      Only if the sorts of immigrants being brought here are somehow harmful to our country or the process is somehow deceitful or unjust yet perpetrated for the selfish reason of putting Democrats in office. There are those who argue that is the case.

      But there has been immigration under every president because controlled legal immigration is generally good for the USA.

      The more people we have entering legally the more people we have to pay for the military and other somewhat fixed costs that have little proportion to our population. We buy ships and planes, for example, to meet external threats so the more people we have to pay for those ships and planes the less each of us has to pay, in general.

      Also, with an aging population social security is getting harder and harder to sustain, with more people taking and fewer people contributing. So bringing in young working age legal immigrants is a way to shore up social security.

      Plus we benefit from a global brain through legal immigration.

      Those are some of the reasons that Republicans and Democrats alike favor controlled legal immigration.

      Delete
    36. Cantus,
      “Oh, you "demonstrated" that your definitions were correct, did you?”
      Yes

      “Strange, all I remember is unsupported assertions.”
      That is indeed strange, that your memory is not serving you in this instance, likely due to an issue while reading my words.

      Even more strange since you provide demonstrated support for my position right here in this very post!

      ”OK, answer me this Dusty: did Obama "pack" the DC Circuit Court of Appeals in 2013, by filling an unusually high number of vacancies? Politifact seemed to disagree:”
      If prior to 2009 the Democrats filibustered to hold open these seats preventing Bush from filling them so Obama could fill them in 2013 then, in that case, I would say yes, but since that did not happen then the answer is clearly NO.

      ”https://www.politifact.com/factchecks/2013/jun/05/chuck-grassley/barack-obama-trying-pack-dc-circuit-court-appeals/”
      This is the really funny part, funny in a sad kind of way.

      The Republicans were calling, wait for it, appointments of a same number, “PACKING”!!!

      One cannot make this stuff up. Hilarious. You are proving my point for me!

      Even the Republicans say it is not required to increase the number of seats to perpetrate a form of packing!

      Delete
    37. I have already written many hundreds of words clearly demonstrating that packing the court can be accomplished by several means, not just expanding the court.

      You have written several hundred words demonstrating that you are using the term differently than anyone else.

      New York Times: "Expanding the court — or court packing — is an idea commonly associated with President Franklin D. Roosevelt, who pushed legislation in 1937 that could have broadened the Supreme Court from nine to as many as 15 justices."

      Washington Post: "Expanding the Supreme Court to more than nine seats sounds like a radical idea, and the term for it, “court packing,” sounds derisive because it has created controversy every time it has come up."

      Dictionary.com entry for court packing: "an unsuccessful attempt by President Franklin D. Roosevelt in 1937 to appoint up to six additional justices to the Supreme Court, which had invalidated a number of his New Deal laws."

      Along with NYT and WaPo, from the first few pages of a Google search, Fox News, CNN, CBS, NPR, Reuters, Politico, Newsweek, the LA Times, history.com, The Atlantic, Forbes, US News, NBC, Vox, the National Constitution Center, Smithsonian, the Supreme Court Historical Society, Duke, and Cambridge all use the term "court packing" interchangeably with "expanding the number of justices on the court". They are synonymous.

      The only place I found using your definition is the Center for American Progress, hardly a reputable organization. So please, cite the usage by a mainstream or reputable source, and I will admit that I was wrong. No need for hundreds of words. Just a source. Simple.

      Delete
    38. Um Stardusty, did you read that Politifact article? Grassley's claim was deemed false, because:

      "The claim that Obama is "packing" the D.C. Circuit Court largely runs counter to American legal and political history."

      Which is because:

      "Most historians and legal scholars offer similar definitions of "court packing."

      Burt Solomon, author of FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy, called it an effort to "expand the size of the court" to stack it with supporters. Kermit Roosevelt, a University of Pennsylvania law professor, agreed, saying it "indicates a departure from the ordinary process."

      Per your link, Grassley made the claim and he was wrong to do so.

      Delete
    39. Huffington Post also disagrees with Grassley:

      "But not only is Obama not “court-packing” — a term describing an attempt to add judges to a court with the goal of shifting the balance, not filling existing vacancies — but Republicans‘ efforts to prevent Obama from appointing judges amount to their own attempt to tip the scales in their favor"

      You talk about "little minorities". Well, we the majority mean "expanding the court" when we say "court packing". Your little minority consisting of you and the Center for American Progress and Chuck Grassley are wrong.

      Delete
    40. And while Stardusty picked up on the fact that Republicans in 2013 made the same claims then that Democrats are making now, he fails to see the implications of this. Either filling an unusual number of vacancies that happened to pop up isn't court-packing (and thus Trump is not packing the court), or it is (in which case Obama broke those norms first, so it can't be claimed that the proposed court-packing scheme is a purely defensive reaction to unjustified aggression). I for one think that neither Obama nor Trump packed the court.

      Delete
    41. Also, Dusty, I notice you've narrowed your definition on the sly. Earlier you claimed that:

      "Packing the court is a process by which the party in power uses manuevers that circumvent regular order in order to place an abnormally large number of judges in the lower courts and justices in the Supreme Court of the choosing of the party in power."

      Now, when it is convenient, you revise your definition so that it specifically requires the other party to filibuster to keep seats open for another president to appoint the justices.

      Delete
    42. Just so my previous point is completely clear, I was criticising Dusty for first claiming that court-packing is any move that results in one party placing more justices than is typical on a court, then backs up and claims that what Obama did to the DC Circuit Court was OK even though it falls foul of his definition, just because it isn't *specifically the particular way that Republicans held a seat open in 2015*, arbitrarily narrowing his definition of court-packing when it is convenient. This is classich Humpty-Dumpty style sophism.

      Delete
    43. Guys: arguing with Star-gazing Psycho? Really? Stop punishing us all, please?

      Delete
    44. I wish comments from this account were disabled. They derail what is usually a good comment section. The postmodern warping of language is prima facie evidence of the weakness of his position, and yet it still draws dozens of replies. At least some dissenters, even some ornery ones, have interesting points.

      Delete
    45. Kevin,
      "You have written several hundred words demonstrating that you are using the term differently than anyone else"
      Nope.

      The Republicans accused Obama of "packing the court" without increasing the number of seats.

      Jury packing is like court packing, pushing members in without increasing the number seated.

      Face it folks, you all got it wrong, most especially Dr. Feser.

      The Republicans already packed the court.
      Merrick Garland.
      Amy Barrett.

      We aren't going to stand for it and we aren't going to fall for your silly little semantic nonsense.

      If Amy Barrett is confirmed we will expand the court to bring the balance back against the already perpetrated Republican Court Packing.
      Merrick Garland.
      Amy Barrett.

      You don't get to have it both ways.

      Heads you win tails I lose isn't gonna fly.

      Delete
    46. Cantus,
      " filling an unusual number of vacancies that happened to pop up"
      Ha Ha Ha.

      The Neil Gorsuch seat just "happened to pop up"

      Really? That seat in the Trump administration was vacated in the Obama administration. I guess you just kind of forgot that little fact?

      Well, we haven't.

      No, the Merrick Garland seat did not just "happen to pop up". What a preposterously dishonest assertion to make. You can lie to yourself that way all you like, but we are not going to stand for it.

      We are going to expand the court to make up for the brazen court packing perpetrated by the
      Merrick Garland
      Neil Gorsuch
      Amy Barrett
      Republican court packing scam.

      Delete
    47. Apparently "Nope" is seen as a rebuttal to detailed sources, including his own, that prove him wrong. As such, I leave Stardusty to his own humiliation. This was probably the most pathetic display of refusing to admit being wrong I've ever seen, despite overwhelming linked evidence.

      In conclusion, per all knowledgeable people, neither Trump nor Obama packed the courts because neither tried to expand the number of justices. The little minority who disagrees can't even name one reputable (or even disreputable) source that says otherwise.

      Case closed.

      Delete
    48. To the allegation that the Senate was remiss in its duties when it refused to take up Merrick Garland's nomination to the Supreme Court, I suggest Advice and Consent, here:

      https://www.wizbangblog.com/2017/02/05/advice-and-consent/

      Delete
    49. Kevin,
      The Republicans called it "court packing" even though there was no expansion in the number of seats.

      "Jury Packing" does not involve an expansion in the number of seats.

      You have made up out of thin air the silly idea that "packing" requires an increase in the number of seats.

      Case closed.

      Delete
    50. Um, guys, the Garland and Barrett situations aren't the same. Garland was nominated to a Senate in the control of an opposing party; Barrett has been nominated to a Senate in the control of the President's party. A little research of the history of these situations indicates that the Barrett nomination is standard operating procedure, despite Kamala Harris's desperate and pitiful and demagogic protest.

      Delete
    51. The Republicans called it "court packing" even though there was no expansion in the number of seats.

      They were wrong, but interesting that you use them as an authority.

      You have made up out of thin air the silly idea that "packing" requires an increase in the number of seats.

      I had no idea I was the New York Times, the Washington Post, Fox News, CNN, CBS, NPR, Reuters, Politico, Newsweek, the LA Times, history.com, The Atlantic, Forbes, US News, NBC, Vox, the National Constitution Center, Smithsonian, the Supreme Court Historical Society, Duke, Cambridge, Politifact, and the Huffington Post.

      Indeed what are those, when poster Stardusty Psyche says they are wrong?

      Delete
    52. Kevin,
      "interesting that you use them as an authority."
      Strawman, your words, not mine. There are various examples of the use of the term "packing" in reference to situations with no increase in size or total number of seats.

      "I had no idea I was"
      Who said you were all those organizations? That doesn't even make sense. How could you be all those organizations?

      Delete
  4. Trump supporters have NOTHING to stand on when it comes to defending democratic norms.

    ReplyDelete
    Replies
    1. Can we even say that either side really cares about "Democratic norms" at this point?

      Delete
    2. What democratic norms has Trump overturned?

      Delete
  5. Court packing is typically understood as adding more judges than the typical number, which isn't something the republicans did so far as I am aware. Rather they prevented the hearing or vote on judges who would have filled vacancies.

    ReplyDelete
    Replies
    1. Which is adding more than the typical number.

      The typical number of justices to be added under each president is the number of vacancies that open up in the term of each president.

      The Republicans refused to even hear Merrick Garland and now they are going to pack in a number of justices under Trump that is entirely atypical.

      That is why I support expansion of the court by Biden as an entirely fair, reasonable, constitutional, and justified response to existing court packing by the Republicans.

      Delete
    2. You are stretching the use of the term "court packing" way beyond its meaning.

      Those vacancies were there. It is the President's power and a democratic norm to fill them.

      Those vacancies occurring was the result of democratic norms, well established. You are complaining because a party had the executive branch but not the rest, which is pretty typical. You can't complain about norms just because they don't go your way.

      Delete
    3. Billy,
      "Those vacancies occurring was the result of democratic norms, well established."
      False.

      Democratic norms are for the president to nominate a judge or justice and for the senate to take up those nominations and have an up or down vote.

      The Republicans violated those democratic norms with Merrick Garland and Amy Barrett, so now we, the majority, are going to restore the balance by expanding the court.

      When the Republicans return to voting on nominations we will stop expanding the court.

      The gloves are coming off until we restore the balance. The OP is hyperbolic nonsense.

      Delete
    4. SP,

      What the GOP senators did during Obama's presidency with failing to receive nominations, then receiving and filling them under Trump, was already done by Dem senators during Bush's presidency. Either you have to admit its not a democratic norm, or if it is, it was broken by the Dems first.

      Delete
    5. @Billy

      Yes, you're correct. Democrats didn't want to cooperate with Bush anymore than Republicans wanted to cooperate with Obama. When it was the GOP's turn to exercise its muscle by filibustering court nominees, the Democrats promptly killed the filibuster. Republicans warned them that they would rue the day they set that precedent, and the chickens have come home to roost. When the Dems attempted to filibuster Gorsuch, the GOP promptly killed the SCOTUS filibuster. Sauce for the gander and such.

      As Ruth Bader Ginsburg and Joe Biden warned, court packing is a terrible idea that will destroy the credibility of the Court. If the Dems, say, add four seats and raise the Court's count to 13 members, the next time the GOP wins the Senate and presidency, they'll raise the number of Seats to, say, 19 members, and so on, ad nauseam. It would render the judiciary a joke in the public's eyes and will encourage them to ignore its rulings. Not only is the idea foolish, it is dangerous.

      Court packing is an idea that demonstrates one's total contempt for the Constitution. When a vacancy occurs on a federal court, the president is responsible for nominating a successor. The Senate is empowered by the Constitution to affirm, reject or ignore the nomination (see https://www.wizbangblog.com/2017/02/05/advice-and-consent/). This is Civics 101. Politics is something over which we disagree; civics is something not up for debate. To live in a society, we are bound to uphold certain rules (laws), and the Constitution is the supreme law of the land. The process or procedure is not up for debate. You don't get to complain because the party you disagree with follows the law. If you don't like what they're doing, vote them out. Accusing them of "cheating" when they're following the law is nothing but sour grapes masquerading as justice.

      Delete
    6. Bill,
      "Court packing is an idea that demonstrates one's total contempt for the Constitution. When a vacancy occurs on a federal court, the president is responsible for nominating a successor. "
      Indeed!

      The Republican court packing already perpetrated by the McConnell/Trump gang is indeed an insult to the spirit of the constitution.

      Each president does indeed deserve to have his nominee taken up and voted upon by the Senate, in the case of a vacancy arising during his term.

      The McConnell/Trump gang violated that democratic norm and now we, the majority, if we sweep the senate, house, and executive, will right that gross violation of democratic norms by the constitutionally valid process of expanding the court.

      In that case all you conservative hypocrites can cry all you want, because we, the majority, are fed up with the tyranny of you, the minority.

      Delete
    7. Each president does indeed deserve to have his nominee taken up and voted upon by the Senate, in the case of a vacancy arising during his term.

      No s/he doesn't. As argued in my post with a link containing supporting arguments, the Senate is perfectly within its "advice and consent" responsibility to ignore a president's nomination.

      You don't have the slightest shred of credibility here. And if you think that your scribble is in any measure persuasive, then you're dumber than you appear to be.

      Delete
    8. Bill,
      "the Senate is perfectly within its "advice and consent" responsibility to ignore a president's nomination"
      Then the congress is perfectly within its responsibilities to set the number of justices at any number it sees fit.

      You don't have the slightest shred of credibility here.

      Delete
    9. Nobody, including yours truly, ever argued that Congress lacks the legislative authority to add seats to the Supreme Court, you dolt. In fact, you know good and well we haven't argued that.

      Delete
    10. Bill,
      "Nobody, including yours truly, ever argued that Congress lacks the legislative authority to add seats to the Supreme Court,"
      Fine, we are agreed then, it is perfectly OK for the Democrats to expand the court if they have the votes because they will have the authority to do so...

      Just as you claim it was OK for the Republicans to refuse to take up any nominee of Obama because they had the votes and the authority to do so.

      You and I, therefore, agree that the dire language of the OP is nonsense because there is no such thing as the destruction of democratic norms or destruction of the integrity of the courts because all that matters is the power to act.

      Right?

      Oh, no, wait, I'm sorry, you are against the destruction of democratic norms. Fine.

      How is failing to consider and vote on a nominee for the Supreme Court in any sense "normal"?

      I challenge you, Dr. Feser, and every person on this thread to cite any instance in your personal living memory whereby any president did not in fact seat a justice of his nomination in his term, if not his first nomination then a subsequent nomination of his in his term.

      Name one.

      There is your democratic norm, the seating of a justice nominated by a president in his term.

      Breaking that democratic norm is court packing, already perpetrated by the Republicans.

      Just google Republican Court Packing.

      The cat is out of the bag, the Republicans have already packed the court, every honest and informed person already knows that fact, just search the term Republican Court Packing if you do not believe me.

      Delete
  6. The most common proposal would empower every president in every term to nominate two (2) associate justices for the Supreme Court. The number of justices would no longer be set at nine. A president's right to nominate an associate justice would be a matter, not of senatorial politics, but of law. This proposal is not court-packing.

    If it were the law today, President Trump could have nominated William Cavanaugh and Amy Coney Barrett without waiting for vacancies to occur. Were he to be re-elected, he would then nominate two more associate justices. That seems fair.

    Sometimes this proposal is combined with another to prevent bloc voting on the SCOTUS: from the larger roster of justices, a smaller number would be assigned to cases at random. It would then be impossible to know which justices would hear which cases in advance. This proposal is not court-packing either.

    It lowers the political stakes for nominations to the Supreme Court and protects its institutional impartiality. If one wants SCOTUS to rule on the law rather than on the politics of the cases before it, these would be good outcomes.

    Moreover, if the two proposals had been law for a few administrations, the Supreme Court today could rule on more cases. Apart from political concerns, many have lamented the steady decline in the number of cases that the SCOTUS decides in each term.

    Should the two major candidates for POTUS endorse these proposals? Do they do any harm if they do not take a position? Reasonable people will disagree about what best serves republican norms.

    Each candidate should try to get the trust of a majority of the people before proposing to reform their institutions. These proposals-- which reform the Senate as well as the Supreme Court-- will be made in the Congress.

    BW

    ReplyDelete
    Replies
    1. How about changing the law, but have it's effective date be the NEXT administration, not the current one?

      How about: for each presidential term he gets to name 2 justices, who automatically take office after the president leaves office. But that's all, no more. Said president does not name more just because someone on the court dies: it's OK if the court's number of justices goes up and down with the vicissitudes of long life. (As it is, 2 per president will gradually increase the number of justices until a "natural" life-span of "the court" reaches a limit. With probably 3/4 of the justices either retiring or dying in their 80's, most of them will have no more than about 25 to 30 years on the court, so they won't last more than about 6 or 7 presidential terms, so there the total would tend to an equilibrium of about 12 to 14 of them.)

      Delete
    2. @Anonymous:

      Who in the world is William Cavanaugh?

      Delete
  7. How people can’t see this is beyond me. Democrats got some reason choose to ignore this over a fly.

    ReplyDelete
    Replies
    1. I think it's just as alarming that Republicans completely ignore Trump and Pence's refusal to commit to a peaceful transition of power.

      Delete
  8. The reason Biden will not answer, of course, is that his party has moved so extremely far to the left

    This is the kind of smalltime parochial ignorant thinkin which leads Americans to being overwhelmingly monolingual, rejecting of the metric system, and believing that a duopoly is healthy political government. A party that supports a weak private sector, is against single-payer health care, and approves of increased funding of the military and federal prison system (as "deranged far left" Biden does) is called right-wing and Tory in every European country. It would be far-right in 80s France.

    The idea that 80s France is a "socialist communist nightmare!" is that infamous Conservative Derangement Syndrome you suffer from! (Of course, that means because I accused you of being deranged, you are automatically incorrect on everything political you write and I win).

    The reason I don't want four more years of Trump is because I don't want the USA to look like the State of Florida, which is a state Trump supporters have truly made in their own image and likeness.

    ReplyDelete
    Replies
    1. Balanced,

      The Green New Deal, free healthcare for illegal immigrants, and defunding the police are all centrist positions now?

      Delete
    2. The Green New Deal absolutely is a centrist position. The Kyoto Protocol was signed on by every civilized country on Earth except the US, and it was more strict than the compromised legislation proposed by Biden.

      "free healthcare for illegal immigrants"

      Free healthcare for people who pay into the government via income tax, sales tax, payroll tax etc...., which includes almost all illegal immigrants. The vast majority of illegal immigrants pay into social security that they will never receive, which makes Trump and his acolytes Ali Baba and the King of Thieves.

      "and defunding the police"

      I propose caining as a punishment for bad police behavior, not defunding. Maybe even placing them under the jurisdiction of Federal military courts, if they're going to become so militarized. That would be so fun watching all those blue pants turn green!

      Delete
    3. Balanced,

      Perhaps you are correct that these positions are centrist. But is a world where "socialism is the solution to global warming" and "illegal aliens have a right to taxpayer-funded healthcare" is the "centrist" position kind of... I don't know, bonkers? I mean, would you have honestly considered these positions to be centrist ten years ago?

      Plus, even if you disagree with defunding the police, that's a mainstream position within Democratic Party circles. This is also a position the Democratic Party wouldn't have supported in the early 2010s.

      Delete
    4. "The Green New Deal absolutely is a centrist position."

      Demolishing and rebuilding absolutely every single building in the entire country in 10 years is centrist?

      The Kyoto Protocol is pretty vague. It doesn't require embracing any particular action at all, or even having deadlines or any particular targets.

      The Green New Deal sets a deadline of 10 years, to:

      "upgrading ALL existing buildings in the
      United States and building new buildings to
      achieve maximum energy efficiency, water efficiency, safety, affordability, comfort, and durability, including through electrification"

      "repairing and upgrading the infrastructure in the United States, including...by eliminating pollution and greenhouse gas emissions as much as technologically feasible...by guaranteeing universal access to clean water...meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources"

      SO, no matter how many people die, or jobs and livelihoods are ruined, the Green New Deal declares that in 10 years, we must demolish every building, end all fossil fuel use, and guarantee universal access to water. We must also remove as much greenhouse gases without any regard for rights, safety, health, or anything, but only as much as technology can possibly achieve. All these things are effectively treated as ends in themselves.

      That is not centrist. That will require an authoritarian take over of the entire country.

      Delete
    5. Billy,

      Centrism is in the eye of the beholder.

      Delete
    6. Geocon,

      The one who controls the language in the debate controls the debate. Language manipulation has been the main aim of the Left for quite some time.

      https://www.youtube.com/watch?v=70czT6tPvcs

      Delete
    7. Indeed. But centrism is an inherently meaningless word.

      Delete
  9. They would fundamentally transform our political institutions in the direction of a one-party state.

    You have a one-party state in blue counties and red counties because there's not a proportional representation voting system allowed by the US Constitution, such as Single Transferable Vote.

    And if the answer is "but if we let the federal, state, and local government have parties represented in proportion to their ideological distribution, that would lead to the Democrats taking over everything!"... how foul, awful, and cringy is your political party that the supermajority of Americans would never in their right minds vote for it without conspicuous consumption of Everclear?

    And if the answer is "but those vulgar Americans are too dominated by their lower appetites to decide what's best! We conservatives are much holier than they are, and government representation must be in proportion not to the will of the people, but to our holiness" Then get out of the USA and go to a country that believes in nobless oblige. Our Founding Fathers founded this government on the idea of the Roman Cincinnati, who thought nobility was the foundation of tyranny.

    ReplyDelete
    Replies
    1. Balanced,

      Do you think allowing the interests of a few big cities to dominate the entire country is a good idea?

      Delete
    2. @Mister Geodon

      No it is not, because the issues of high-density populace do not generalize for everyone and relying on the altruism of the urban populace is simply stupid. It actually is a form of noblesse oblige, except the nobles aren't gentry.

      But the answer absolutely isn't to keep the voting system the same (or to abolish the presidency). What must be done according to the latest political science--while respecting the unique needs of the USA--are the following:

      1. Make the upper house and lower house of US parliament symmetric. Both should have 1680 districts, each district with three representatives (multi-winner district) elected by single-transferable vote. The only difference being that the senate has 12 year terms and the lower house 4 year terms, to synchronize with the presidency. The passing of legislation should require a coalition of multiple parties which guarantees minority power for the rural parties.

      2. Presidency should be elected by the state legislatures voting using single-winner ranked voting that satisfies the Condorcet criterion and independence of irrelevant alternatives (Schultz voting?)

      3. Redesign the court system to fit the Kelsenian model and transfer to civil law in order to reduce the politization of the Supreme Court.

      Keepin mind that the Pentagon chose a parliamentary government with proportional representation when designing Iraqi democracy because they knew the USA's constitution is extremely undemocratic.

      Delete
    3. Balanced,

      Letting the federal, state, and local government have parties represented in proportion to their ideological distribution would lead to the Democratic Party taking over everything because a) the majority of people in this country live in cities and b) the Democratic Party has a stranglehold on these areas for various reasons.

      Yes, our constitution is pretty undemocratic because the Founding Fathers feared and despised majoritarian rule. Is that a problem?

      Delete
    4. Yes, our constitution is pretty undemocratic because the Founding Fathers feared and despised majoritarian rule. Is that a problem?

      You tend to get extremely offended when people type you as not having democracy as a value:

      CONS The US is a republic, not a democracy. Majoritarian rule even if it supports the will of the people is evil. Our founding fathers despised democracy.

      POLISCI Red state North Carolina is as democratic as North Korea

      CONS ...what is this injustice? How could liberals come to this conclusion just because we gloay every time someone points out how non-democrayic our government is?

      Delete
    5. " Red state North Carolina is as democratic as North Korea"

      That is because the "experts" ranked NK way higher than it should be. It was ranked 65 our 127, higher than some EU nations.

      Out of 0-100, this was NK's results:

      Electoral laws: 53
      Electoral procedures: 73
      District boundaries: 73
      Voter registration: 83
      Party and candidate registration: 54
      Media coverage: 78
      Campaign finance: 84
      Voting process: 53
      Vote count: 74
      Results: 80
      Electoral authorities: 60

      It actually makes NK seem like a somewhat moderate democracy. You trust this?

      Delete
    6. Balanced,

      You tend to get extremely offended when people type you as not having democracy as a value

      Idiots get offended. I don't.

      Delete
    7. Let me put it to you in the clearest way possible: for me, democracy is to a healthy society what cancer is to the body.

      Delete
    8. unBalance: "left" and "right" have variable, changeable referents because the terms initially referred to the (Revolutionary) French Assembly, where "right" means supporters of monarchical powers, and "left" largely supported bourgeoisie interests. During later iterations that changed, and what had formerly been the interests of the bourgeoisie are now usually more strongly supported by the "right" than the "left". The terms do not have absolute meanings.

      for me, democracy is to a healthy society what cancer is to the body.

      Why, then, Geo, does traditional Catholic philosophy acknowledge that democracy is one of the legitimate forms of government (even if not a very good one)?

      Delete
    9. Tony,

      Why, then, Geo, does traditional Catholic philosophy acknowledge that democracy is one of the legitimate forms of government (even if not a very good one)?

      Naïveté.

      Delete
  10. The problem with Biden isn't that he's "far-left."

    The problem is that the figureheads, tories, and wokesters who make up the government are mindless dittoheads. If they pack the Supreme Court, we're guaranteed to be lapidated for not humbling ourselves before the latest moral fashion because we never got the memo that "there's no I in team, son." They live under the solar disk of togetherness aka. the Sun and have no concept of time, past or future. They can only visualize artifacts of the past (the pyramids) and artifacts of the future (aliens, Star Wars).

    ReplyDelete
  11. In 2016, when it looked as if Hillary would likely win, you had Ted Cruz and Chuck Grassley insisting that the GOP would keep the Scalia seat open for four years of a Hillary Clinton administration if need be, should they control the Senate. Cruz and Grassley are not, of course, fringe figures in the GOP. I believe other top Republicans made the same pronouncement, but I’m too uninterested right now to look it up.

    Now I imagine that Cruz, Grassley, and their GOP friends would defend that position by saying that, hey, there’s nothing in the Constitution which *forbids* the Senate from never giving a hearing to a president’s nominee. To be sure, it would be a huge, monumental subversion of democratic norms — the exact kind of thing Feser now claims to be extremely concerned about — but strictly illegal? No. And that’s just politics, isn’t it?

    Well, of course, the same can be said about the court-packing that’s been pushed from the Left currently. Nothing in the Constitution sets a limit at nine justices. The number has been changed in the past, and can be lawfully changed again. The question is whether the party who attempts such would be willing to pay the political price. (In the 1930s, the Democrats weren’t willing to pay the price, it turns out, and it’s an open question whether an empowered Democratic Party in 2020 would be.)

    As for the filibuster, the argument is that it has now become an automatic veto for the minority part — something it was never meant to be. The way things stand now, only a supermajority in the legislature can really get any work done (with major exceptions). Which is untenable. It is absolutely not in bad faith to argue for the abolishment of the filibuster — nor is it a radical proposal.

    Now to make some more general points: What this blog post really expresses, I think, is anxiety about the impending collapse of the current Republican Party. Most political scientists see Texas becoming like Virginia in the near future, for example — from solidly red, to purple, and then perhaps to blue. Which is one reason why I don’t think Democrats will mount a huge push to get statehood for D.C. or Puerto Rico. They’re willing to wait for the current 50 states to hand them something like a permanent majority. People like Feser know this, and they think SCOTUS will be their only saving grace for that eventuality. Hence the topic of the current blog post.

    Also, I think that generally this points up the fundamental tension between Catholicism and liberal democracy, which persists despite Vatican II. If you perceive the goal of human life as shepherding people into a heavenly afterlife, you will inevitably butt heads with the principles of a liberal-democratic government, if the *the people* turn out to be morally at odds with you.

    ReplyDelete
    Replies
    1. Considering what the Democrat party is in favor of (prolonged support of the murder of unborn children using the Supreme Court as their primary tool) I would say that the statements of Ted Cruz and Chuck Grassley are the normal thing to say for someone in their position, neither notable nor particularly strong.

      "Morally at odds" is one of those standard silly atheist fantasies that their opinions as those stranded outside the Church somehow have some sort of transcendent nature.

      Delete
    2. I think the point is that the GOP isn't claiming to be trying to fight for democratic norms. The other side is, while repeatedly spitting on them.

      Delete
    3. Guy,
      "Ted Cruz and Chuck Grassley insisting that the GOP would keep the Scalia seat open for four years of a Hillary Clinton administration if need be, should they control the Senate."
      Indeed, Ted Cruz said "I'll race you to one".

      Ted Cruz had no problem with changing the number of justices seated at the Supreme Court.

      Ted Cruz was fine with 8, 7, 6, 5, 4, 3, 2, or even only 1 justice.

      Ted Cruz considered the number of justices on the Supreme Court to be a number that can be varied by senate action.

      Ok, two can play that game, which is why the Democrats expanding the court in response to Republican Merrick Garland/Amy Barrett actions is entirely justified.

      Delete
    4. Billy,

      The GOP isn’t claiming to abide by democratic norms? Really? Then why would Lindsey Graham have told us, “Use my words against me,” implying that he won’t be a hypocrite? Why wouldn’t he just say you can’t you sue my words against me because I believe in separate standards?

      Ridiculous.

      Of course, the Democrats claim that they would like to uphold norms, but since the Republicans are openly flouting them, they are justified in flouting them in term to return balance to the system. And you just admitted the Republicans are openly flouting norms! Unbelievable.

      Delete
    5. Ed,

      I don't see how proving that someone is a hypocrite somehow proves they claim to care about democratic norms. I'm saying the GOP hasn't claimed to care about democratic norms. A hypocrite not openly admitting he doesn't care about norms doesn't prove he cares.

      Also, the Dems already started this flouting of norms under Bush. In the Bush era, they refused to take on court nominations. If flouting the norms in response is fair, then why are the Dems complaining about the GOP doing just that?

      We know why, it's all just partisan politics. But, as I said, only one side is actually trying to claim to care about democratic norms.

      Delete
    6. Ed,

      Openly flouting them? Historical precedent and the Constitution is on the Republicans' side here. The president appoints; the Senate confirms. There have been, I think, close to thirty times where there was a vacancy during a presidential election year. What the Repubs are doing is not unheard of.

      As for supposed Republican hypocrisy justifying court packing, DC and Puerto Rico Statehood, I confessed to being unmoved by the left and Dems' supposed righteousness here. McConnell's wording with blocking Garland's confirmation was short-sighted and unnecessary. The GOP had the Senate, they had the prerogative to confirm. They chose not. End of story. However, note McConnell invoked the "Biden Rule." It was Biden and the Dems who broke these supposedly sacrosanct norms first well before McConnell and is the reason why we have something called "Borking." If mere hypocrisy and political flip-floppery were legitimate grounds to go nuclear, I guess Nancy Pelosi should be hounded out of office -- as should every politician -- for her brazen appointment at a salon during a draconian lockdown she supports, hmmm? Unfortunately, that would make us a banana republic.

      So, democratic norms? That ship has sailed, struck an iceberg, and horrifically sunk to the bottom of the North Atlantic that we now have movies about it starring Leo DiCaprio and Celine Dion doing the soundtrack. The Dems/left regularly resort to the federal court system and Supreme Court as a super-legislature and an implementer of policy, especially when it comes to issues of the culture war. Doing so, they circumvent and end broader democratic debate and decision-making. Tell me, the years after Roe v. Wade or Obergefell v. Hodges, have things gotten more or less tranquil or polarized? The modern Supreme Court has further centralized politics, making the Court one of the central campaign lodestars of both parties' campaigns because of its norm-breaking pioneered by the Dems as a unilateral means to leftist progress. As a result, politics at smaller levels and other institutions is less consequential -- an indication of weakening democratic norms. Why else do we have this myopic acrimony over an institution that was intended to be apolitical?

      The hysteria, selective short-term memory, and threats of escalation here also reveal a people who aren't sober-minded and can't conceive of meaningful politics without the nine unelected lawyers ruling in ways they like. Confronted with political impotence, their first reaction is not to soul-search, potentially moderate, and entreat with different-minded citizens qua citizens. Rather, they threaten to blow the system up in a spirit of retribution, delusionally believing escalation is restoration. They have that democratic/mob mentality that Plato diagnosed as an authoritarian personality, which Professor Feser has brought to our attention of late:

      https://americanmind.org/essays/woke-ideology-is-a-psychological-disorder/

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    7. Modus,

      You are wrong about historical precedent being on Republicans’ side. I don’t see how it matters that there have been close to thirty vacancies during presidential election years. It only matters that all of those vacancies were filled.

      The point the liberal left is making is that, by refusing even to grant a hearing for Judge Garland, and invoking a made-up rule about never appointing justices during an election year, the Republican Senate violated longstanding norms that had secured the legitimacy of the process. That remains true. Full-stop.

      I’m glad that you think McConnell erred in his proffered explanation for the Garland fiasco. But there’s no going back, unfortunately. He said what he said. And now even an amoral serpent like Lindsey “Use My Words Against Me” Graham can recognize the blaring hypocrisy that has resulted.

      Let me remind you of what the Constitution mandates: a president shall have the power appoint Supreme Court Justices with the “advice and consent” of the Senate. This means that when Obama was elected in 2012, the people vested him with the power to appoint a justice should a vacancy arise. The Senate then had an obligation to *advise* — that is, to conduct hearings and a vote. But McConnell didn’t even grant that because he was afraid that if he did, he might lose the seat to GOP defectors.

      In other words, the proper thing would have been for the Republican Senate to hold hearings and a vote on Garland. And if he was voted down, Obama perhaps could have sent another nominee. But (and this is the important thing) McConnell subverted the normal process because he was hoping he might guarantee a nominee who would be to his partisan liking . And therein lies the analogy with court-packing. It is the undermining of norms for the sake of partisanship. This may not *exactly* amount to court-packing if you want to get down into semantic quibbles, but it’s close enough to justify retaliatory action by Democrats (which may or may not come. I’m actually doubtful it will.)

      As for the Biden Rule, let’s remember that Biden was a Senator at the time who was merely giving a speech, not enacting policy. By that standard, are we now going to have the Cruz Rule, where the Senate never confirms the nominee from a president of the opposing party? What would Feser, or anyone who now claims to be concerned with norms, have to say about that?

      And in any case, the point is moot, because Biden never said that *if* a president does put forth a nominee in an election year, then the nominee should be ignored and sidelined like Garland was. Furthermore, Biden stated that if a president was not willing to withhold a nomination during an election year, then he should put forth a sufficiently moderate one who would be acceptable to all sides. And Merrick Garland was certainly that, as he had in fact been cited by Orrin Hatch and other Republican senators as an acceptable nominee.



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    8. I opposed the Republican Senate refusing to hold hearings on Dem-nominated judges, at the time, and would do so again. It was wrong then and is wrong now. Such refusal is, effectively, a refusal to carry out the nation's business. That there was a senatorial "rule" that allowed such a refusal to be indefinite was, probably, a dismissal of constitutional principles and should have been called out. There is no good basis for such a rule.

      Whether or not Cruz claimed the Senate would refuse hearings to a Hillary-nominated judge for all 4 years is rather beside the point: first, he was almost certainly bloviating for his base, (which he shouldn't have), without any intent to follow-through; and second, he almost certainly would have been forced to by political pressure if he started out intending to carry out such a program. And he would have known that at the time. It was a pandering election-year "promise" without an ounce of credibility. But it was still wrong to say it.

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    9. @Guy, you write:

      To be sure, it would be a huge, monumental subversion of democratic norms — the exact kind of thing Feser now claims to be extremely concerned about — but strictly illegal? No. And that’s just politics, isn’t it?

      Twenty-nine times in our nation's history has a vacancy occurred on the Supreme Court in an election year. In every instance, the president has nominated a successor. In 19 instances, the president's party controlled the Senate and the nominee was confirmed 17 times. Nine of the 17 were confirmed before the election and eight after. Three were confirmed in post-election sessions even though the president lost re-election.

      Since the 1880s, the Senate has not confirmed a nomination made by a president of a different party. What, then, is this violation of norms that you complain about? President Trump is simply doing what every president before him has done, so nothing is amiss there. The alleged violation of norms must then be the Senate's inaction over Merrick Garland's nomination by President Obama. But given that "inaction" falls within the scope of the Senate's "advice and consent" responsibilities (see https://www.wizbangblog.com/2017/02/05/advice-and-consent/), its refusal to consider Garland's nomination was perfectly within the scope of it duty.

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    10. Bill,

      The violation of norms was indeed the Senate’s inaction on the Garland nomination — a decision that really was unprecedented. There have been 10 instance where a vacancy has occurred in an election year, and where the president and Senate were of different parties, and although you are right that only one of those nominees (1880) was confirmed, nonetheless in each instance the nominee was given a vote. This is how “advice and consent” has been construed throughout the country’s history even dating back to the Founder’s generation.

      Does the blog you linked to prove that “inaction” falls within the scope of the Senate’s powers? No, at least not according to this article. (https://www.yalelawjournal.org/essay/can-the-president-appoint-principal-executive-officers-without-a-senate-confirmation-vote) — which, to my mind, decisively refutes that claim, which has been made by Adam White. The author, Matthew Stephenson, shows that even on an originalist interpretation the claim does not hold water. And furthermore he argues (again, persuasively) that Senate inaction actually *implies* consent.

      And again, what we are talking about here is norms, and there can be no denying that McConnell’s proffered explanation for denying Garland a hearing was without precedent. It was made up out of whole cloth and cuts against the tradition of deference toward the presidency that has grown up around the SCOTUS nomination process. There is virtually nothing the Republicans can cite in the historical record to support it (no, not even the so-called Biden Rule).

      And furthermore, if we are going to rely solely on originalist arguments, then there’s nothing stopping the Democrats or any controlling party from adding more seats to the Court, because clearly the Framers never intended to limit the number of seats to 9.

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    11. Guy,

      To clarify -- and I originally misunderstood this -- McConnell's argument was never to deny a hearing to Garland because it was an election year; it was denying Garland because it was an election year and the GOP controlled the Senate and the Dems the presidency, the latter condition of which is not exactly a claim without precedent.

      But let's grant that a) denying Garland even a hearing/vote is a breaking of norms because b) the Constitutional provision of "advise and consent" entails having at least a hearing/vote and c) precedent is for the Senate to defer to the presidency. Even if a), b), c) are true, it doesn't follow that the Dems' threat to *pack the court* -- understood as expanding the number of justices on the court by appointing and confirming favorable judges -- and granting statehood to D.C. and Puerto Rico with the aim of controlling the Senate indefinitely are at all justified. In what Orwellian world is partisan escalation the same as restoring balance? So a McConnell-led Senate stretches the "advise and consent" clause to preclude giving Garland a hearing and a vote against longstanding precedent. Therefore, the Dems are justified in more gratuitous and explicit norm-breaking not just to restore supposed partisan balance -- on an institution that was intended to be non-partisan -- but to ensure their party controls both the Senate and the Supreme Court into perpetuity?! Not buying it. Don't forget, we're at loggerheads here because the Dems/the left have treated the Supreme Court as a unilateral super legislature and effector of favored policy, which strikes me less as norm breaking but flat out Unconstitutional. The Dems have no normative high ground here.

      Lastly, I disagree -- not so much quibble -- with your analogical attempt to find McConnell culpable for court packing. If intent was sufficient for court packing, then the Dems during Kavanuagh's confirmation are assuredly guilty as well. Making the hearing/vote for him a kangaroo court about unfalsifiable claims of rape from decades ago "subverted the normal process" obviously in hopes to guarantee a candidate, if one at all, more to their partisan liking. Heck, apparently RGB on her deathbed made it her "fervent wish" for her seat not to be filled until a "new president is installed." That seems like a call to pack the court or again is analogous to it via your argument. Furthermore, the analogy falls apart because the typical understanding of court packing involves the positive power to spam candidates for confirmation that is only afforded to the executive of the presidency, not the negative power of the Senate to block whatever candidates the president may choose. McConnell as Senate majority leader only has the latter power, not the former. Either the traditional definition is court packing or, according to the novel one being put forth, everyone is court packing. Precision in definitions matter.

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    12. Modus,
      "granting statehood to D.C. and Puerto Rico with the aim of controlling the Senate indefinitely are at all justified."
      The purposes of statehood for DC and Puerto Rico are to fix the error of the founders in creating a district that is, ironically given it is the capital, abhorrent to a fundamental American principle, no taxation without representation. And further, these new states carry on in the great American tradition of making states from territories.

      They wouldn't even be the smallest states, they would be 50th and 31st of 52.

      If DC is too small to be a state then we need to get rid of Wyoming and Vermont.

      " Precision in definitions matter."
      Ok, "packing" in general means to stuff into a fixed size container, not to make the container bigger.

      You pack your suitcase full by shoving stuff into it, not by getting a bigger suitcase.

      One packs a box by filling the box, not by making the box bigger.

      Application of the term "packing" to expanding the court is a misnomer.

      Packing has always been understood to mean filling vacancies of a particular number with individuals who will vote your way.

      One packs a panel not by making the panel bigger, but by placing members who will sway the actions of the panel your way.

      Jury-Packing is a searchable term. "Packing" a jury does not mean using 16 jurors instead of 12, it means installing the sorts of jurors into the 12 vacancies who you suppose will vote to your liking.

      What McConnell and the Republicans did in the case of Merrick Garland was court packing.

      Expanding the court would only be inappropriately called packing. The only reason it is called packing is some goofy writers used the wrong word long ago and that inappropriate language has stuck.

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    13. @Guy

      Thanks for the link to Stephenson's piece. It was an interesting read even though he admits on the first page that his idea is radical. And it's hard to reconcile the assertion that a radical idea has been the cultural norm for some 300 years.

      In my mind, Stephenson inadequately answers White's arguments. First, he insists that the evidence based on the Massachusetts model is too scant to be reliable, and that there are equally plausible interpretations for the absence of specific votes on certain nominations. Second, he thinks that the Founders' direct rejection of Madison's proposal that the Senate be limited to a discretionary veto was a non-public nuance not necessarily understood by the general population.

      As to his first objection, the fact that the Convention treated Gorham's proposal differently from Madison's is conclusive proof that Stephenson's reasonable alternatives are not persuasive. Inaction was not tantamount to consent, and the fact that Massachusetts did not record a vote for rejections cannot justify the allegation that they actually held a vote.

      As to the second, one can hardly make the claim that the advice and consent verbiage was a compromise and then argue that nobody argued about it at the ratification conventions. The scant dialog is itself evidence that its meaning was not seriously contested, especially in light of its longstanding use in England (as White also pointed out).

      The discretionary veto (obligating the Senate to vote in order to reject a nominee) was rejected by the Constitutional Convention. That clearly means that the Founders wanted the Senate to have more authority to reject a nominee than an express vote. Recall also that the convention rejected a 2/3rds 'Nay' requirement for nominees. In other words, the Senate was clearly given more latitude to reject nominations. Obligating them to hold a public rejection vote cannot be reasonably affirmed to be definition of advice and consent.

      Your are of course correct that election-year opposing party nominations were always voted on, but as Stephenson himself acknowledges, the fact that a practice is longstanding does not imply that it is constitutionally mandated. Regardless the political acrimony, it was felt that since the president is empowered to make nominations, courtesy dictates an express yea or nay from the Senate, but that's a matter of convention, not obligation. Even in Garland's case, the GOP simply said that it would accept the results of the election. It looked for all the world like Clinton would win, so at best the GOP could say to its supporters that they took it to the People and the People have spoken. Clinton would then have been able to renominate Garland, and I have no doubt that he would have been confirmed.

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    14. And one more thing, for now. The GOP, on the main, have confirmed Democratic nominees in far greater numbers than the Democrats have with Republican nominees.

      Moreover, who broke the political norm when one of the major parties insists that all conservatives are disqualified to sit on the Supreme Court. Who axed the filibuster for federal judge nominations? To hear the Left talk, you'd think that the Garland Affair is a first in American politics. The I'm-always-right-and-you're-always-wrong posture is the default position of the Left, not the right. The Left couldn't care less what cultural norms it overturns. They only care when their ox is being gored.

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    15. Stardust Psyche,

      That argument for statehood for DC and Puerto Rico might be all well and good, but the notion they ought to achieve statehood was brought to recent public consciousness not on those grounds. Rather, the context here is a bellicose response to the potential GOP filling of RBG's vacant spot on SCOTUS, ostensibly for an additional four Senate seats under Democrat control in a drastic bid to increase partisan power.

      Secondly, I never claimed court packing is mere expansion of the number of justices on the court. Historically, it's attempted expansion of the number of justices with the intention of filling those newly created seats with justices amenable to oneself and one's cause for partisan advantage.

      Moreover, if precision matters, your definition doesn't suffice. A president exercising his Constitutional duty to fill a vacancy by merely presenting a candidate would be court packing. So, was Obama with Justices Kagan and Sotamayor in each case "filling vacancies of a particular number with individuals who will vote your [his] way"? I think so unless some qualifications and careful distinctions are made. The definition also doesn't theoretically rule out attempting to expand a court, jury, or panel with the express goal of filling the new seats to garner partisan advantage. Your definition and the traditional one are not seemingly mutually exclusive.

      Furthermore, you act like the senses of "pack" in "court pack," "jury pack" and the colloquial "pack" are univocal. They're not. Indeed, neither are the senses of "pack" in "court pack" and "jury pack." Court packing with SCOTUS has always been understood to include manipulating the size of the court. Jury packing makes no reference to changing the size of a jury. Your case for your definition relies on equivocation.

      I also don't see McConnell and GOP guilty of court packing with Merrick Garland even according to your definition. The Senate's power in regards to confirming justices has two relevant characteristics here:
      1) It's contingent on a president's positive power to supply a candidate to "advise and consent" on.
      2) It's negative -- as in it negates -- when denying or rejecting a candidate for the court.
      That means McConnell and the GOP Senate can't "fill" a vacancy because they alone can't present a candidate for confirmation. When Obama put forth Garland, they negated Garland's installation on the court. They didn't act toward filling a vacancy. Filling a vacancy necessitates positive action, not negation. McConnell and company didn't court pack because they didn't do anything positive to "fill" or "install" anyone, nor could they without presidential help.

      It's clear to the vast majority people what "court packing" is. They also know it has a unflattering connotation. It wasn't until Ruth Bader Ginsburg's death that ideology induced people to contort the term's meaning in idiosyncratic ways to excuse what the Left has been furiously ruminating on as a reasonable, normative course of action while accusing the GOP of actually being guilty of the offense all along.

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    16. Bill,

      If Stephenson’s historical points are sound, then to me his argument is also sound. But in any case, it seems you’ve placed yourself in a bind. If what we think of as norms can be rebranded and dismissed as mere “convention” or “courtesy” (to use your words), and we must look the original language of the Constitution to dictate our actions, then the Democrats are perfectly justified in expanding the Court, because again, nothing in that document expressly forbids them from doing so. In fact, as I understand it, previously the Court was expanded to match the number of circuit courts, which would mean that we should now have 13 justices.

      I also do not want to lose sight of the main point I was objecting to: that it’s only the Democratic Party which, captured by the radical Left, is calling for a major dismantling of democratic norms. Feser says that Biden’s refusal to explicitly reject court-packing is reason enough not to vote for him whether or not one votes for Trump. Well, I wonder why he didn’t similarly say that Ted Cruz’s outrageous statements were reason enough not to vote for him in 2018, whether or not one voted for Beto O’Rourke. I have a hunch.

      Also, I would point out that filibuster abuse began with Republican the Congress under Bill Clinton, and it was actually Bill Frist who, in 2005, first threatened to use the nuclear option vis-a-vis federal judge nominations. As for the claim that Democrats uniquely decided that their ideological opponents aren’t qualified to sit on the Supreme Court, I would suggest we look at the confirmation numbers for Kagan and Sotomayor — which would indicate that Republicans are equally culpable in that regard. Who began this spiral? I don’t think we can say for sure, unless we want to get into the morass of debating the Bork and Thomas nominations. Much of this has to do not just with deep-seated disagreements over judicial philosophy, but also with the increased polarization of our politics generally.

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    17. Modus,

      I don’t recall seeing any statement from McConnell in 2016 arguing to the effect that the Garland nomination should be quashed because the Senate and presidency were held by different parties. Mainly (and maybe exclusively) McConnell merely cited the fact that it was election year. Certainly in his letter to Obama explaining his reason for not giving Garland a hearing, McConnell only mentioned the latter — which is why Schumer was able to deliver a letter this year using McConnell’s *exact* words. Oh, and if McConnell’s operative rationale did concern only the divide in power, evidently Lindsey Graham (now chairman of the committee) didn’t get the memo. His infamous “use my words against me” pronouncements were made even on the assumption that the GOP would control the White House and Senate. He was just wagering that no vacancy would arise in 2020, and he wouldn’t end up with egg on his face. Well, he did.

      In any case, it wouldn’t matter what the rationale was. The undisputed normative standard dictates that a president has a right to appoint a SCOTUS nominee, for the *full* four years of his term, and that the Senate has an obligation to offer advice and consent through hearings and a vote. That has been the practice even in the 10 instances where a vacancy arose during an election year and the Senate and White House were split.

      But you acknowledge this; you just think it’s a little “stretch” of the advice and consent clause. No big deal. What’s a little breaking of the rules among friends, right? Well, no, actually we are talking about long-standing precedent governing an issue of enormous importance. Sorry, but you don’t get to decide what is and isn’t a permissible stretching of the rules. McConnell’s treachery will have very far-reaching consequences, both in terms of SCOTUS rulings an in terms of perceptions of the Court’s legitimacy.

      Of course, a completely non-partisan judge is a fantasy. But the process that had been in place was (by tacit agreement) the best method we had for assuring a maximum of non-partisanship, and of democratic accountability. When you take a blowtorch to the process, as McConnell did, all that’s left is naked partisanship. So yes, what he did is akin to court packing. In fact, I would say that it *is* court packing.

      As for the Kavanaugh fiasco, let me remind you that it was the Republicans who controlled the committee during his nomination. They are the ones who agreed to hear Blasey Ford’s testimony. And how was that in any way of breaking of precedent? Just a couple decades prior, we had a similar situation with Clarence Thomas, and the committee agreed to hear the accuser’s testimony in that case as well. Also, it’s not true that decades-old accusations of rape are per se “unfalsiable” — at least not by any reasonable standard of falsifiability. They can be “falsified” if the accuser or her testimony are found not to be credible. Which is why it is warranted in those instances to hear from the accuser (again, as even Republicans at the time agreed).

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    18. Modus,
      ”That argument for statehood for DC and Puerto Rico might be all well and good, but the notion they ought to achieve statehood was brought to recent public consciousness not on those grounds”
      The issue of statehood for DC and Puerto Rico has been around for many decades, at least a half century. Even as I child I realized how terribly wrong it was for the citizens of DC to have no vote in congress, and it was an issue that led me to lose a large degree of respect for our constitution and those who wrote it.

      “Court packing with SCOTUS has always been understood to include manipulating the size of the court.”
      False, the Republicans accused Obama of “court packing” without any increase in size.

      Court packing, like jury packing, is the accusation of using some dishonest, hypocritical, corrupt, or illegal means to pack judges or justices into a fixed number of seats, obviously.

      The folks here are doing mental gymnastics to try to explain away the gross hypocrisy of McConnell in Merrick Garland block compared to the Amy Barrett confirmation.

      It comes down to the OP ignoring the point and the rest of the folks here finally arguing some version of might makes right, it was ok to be hypocritical because the Republicans had the political power to be hypocritical.

      Well, OK, then the Democrats will expand the court because they have the power to do so. See, two can play the might makes right game, and the Republicans already have, so it is looking more and more like it is going to be our turn soon.

      “It's clear to the vast majority people what "court packing" is. They also know it has a unflattering connotation.”
      Indeed, and we the vast majority of people, the people who voted against Trump, know that the Republicans hypocritically packed the court by blocking Merrick Garland and confirming Amy Barrett and that does indeed project in a very unflattering way against the Republicans and is another good reason to vote Democratic, so we can negate the hypocrisy of Republicans with a constitutional and eminently fair expansion of the court.

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    19. @Guy, you write:

      If what we think of as norms can be rebranded and dismissed as mere “convention” or “courtesy” (to use your words), and we must look the original language of the Constitution to dictate our actions, then the Democrats are perfectly justified in expanding the Court, because again, nothing in that document expressly forbids them from doing so.

      Well, no, his argument isn't sound at all for the reasons I stated. And as I stated, Stephenson himself ackowledges that longstanding practices aren't necessarily mandated by the Constitution, or did you forget that when you posted the link?

      Moreover, nobody here argues that is it legally impermissible to expand the Court. Of course Congress can expand or reduce the number of seats thereon. We argue quite correctly that it's an unwise proposition that will undermine the Court's credibility. It's the grade school neener-neener, gotcha-back-last maneuver to even the score with Republicans over Merrick Garland.

      Also, I would point out that filibuster abuse began with Republican the Congress under Bill Clinton, and it was actually Bill Frist who, in 2005, first threatened to use the nuclear option vis-a-vis federal judge nominations.

      Please. Abuse is in the eye of the beholder, but even conceding that arguendo, the filibuster wasn't invented by the GOP. The GOP, as did the Democrats, availed themselves of existing means to call for mainstream judges (as Schumer currently argues). And one person threatening to eliminate the filibuster is nowhere near the decision of a party to actually do away with it. You're just twisting yourself into a pretzel to lay the blame button on the GOP.

      As for the claim that Democrats uniquely decided that their ideological opponents aren’t qualified to sit on the Supreme Court, I would suggest we look at the confirmation numbers for Kagan and Sotomayor — which would indicate that Republicans are equally culpable in that regard.

      It indicates nothing of the kind, and it is truly surprising that you'd even attempt to offer that feeble rejoinder. Please recall that the main opposition to Sotomayor was her perceived racist comment about white males. A majority of Americans didn't like that remark and she backtracked at her confirmation hearing. And after Sotomayor lied to the GOP about her support for gun rights, they were in no mood to play nice with Kagan. Was it childish for them to take out their anger on Kagan? Of course it was, but that's not the same as the longstanding Democratic position that conservatives are automatically disqualified from serving.

      Did you forget that Obama opposed Roberts and even joined the filibuster attempt against Alito? And though you mention Bork and Thomas, you attempt to sweep that under the rug by appealing to "increased polarization," as if both sides contributed to the problem. The Bork hearings, more than anything, got the polarization ball rolling. He was treated despicably and its bitter aftermath continues to this day.

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    20. Bill,
      "The Bork hearings, more than anything, got the polarization ball rolling. He was treated despicably"
      Bork was a creepy little scum who did Nixon's massacre bidding after two more senior men refused and resigned effective immediately. Those two men had integrity and guts, Bork was a pathetic little hatchet man.

      The last thing we need is a creepy unprincipled dirtbag like Bork as a Supreme Court justice.

      But Bork got a vote because Democrats have principles and integrity.

      Then Reagan nominated Kennedy who was confirmed 97-0, because Democrats have integrity and they voted for a Reagan pick even though they would have preferred a different nominee but Reagan was president, Kennedy was a qualified and decent guy, so Democrats followed regular order and voted for Kennedy.

      That's how the process has normally worked. If the president makes a bad choice he or she gets voted down and then the president makes a better choice and that nominee is confirmed.

      That is regular order. The Democrats followed regular order with Bork and Reagen was able to seat a Justice when that seat opened up on his watch.

      McConnell blew all that up with lies and hypocrisy, violating deeply held norms by refusing to vote on Merrick Garland on the pathetic excuse that it was an election year, only to then push through Amy Barrett in an election year.

      Like Bork, McConnell and all his Republican henchmen are miserable little rats. So, when scum like McConnell and Trump come along and drag the process down into the mud we Democrats, the party of integrity and regular order, have a choice, either give up and let the rats lie their way to court packing as the Republicans already have done, or use legal means to undo their hypocritical lying court packing.

      5/11ths very nearly equals 4/9ths. The Democrats should expand the court by 2 justices and then return to regular order, if possible, which may be possible without the vile corrupting influence of Trump and McConnell as majority leader.

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    21. Bill,

      I don’t see how it’s relevant to keep citing what Stephenson thinks about long-standing practice. The over-arching assumption of this conversation is that long-standing practices are in some sense binding — that is why we see Feser railing against the supposed outrage of calls from the Left to pack the court. He thinks this would be a terrible subversion of democratic norms, but of course he studiously ignores the fact that it is only being proposed as a warranted corrective to the subversion of norms that has already taken place courtesy of McConnell’s GOP.

      I have heard no argument as to why this corrective action wouldn’t in fact be warranted. All I hear, from you and others, is that court-packing just feels like it would be worse than what the Republicans did, that it would be tantamount to petty schoolyard retaliation (“neener, neener”). But that’s ridiculous. The stakes here are as high as can be, which is why I think justice requires some sort of retaliatory measure. A schoolyard analogy implies triviality, so no, it can’t be invoked here.

      “one person threatening to eliminate the filibuster is nowhere near the decision of a party to actually do away with it”

      Well, Frist was the Senate Majority Leader. Not exactly one (random) person. Also, I assume you would agree that Frist is not, in any case, entirely blameless for ratcheting up the partisanship. After all, if he made the threat presumably he had it in mind that he might follow through.

      And by the way, here is a chart showing cloture votes to end filibusters from 1979-2012. https://www.brookings.edu/blog/brookings-now/2013/11/21/chart-a-recent-history-of-senate-cloture-votes-taken-to-end-filibusters/)

      As you can see, Republicans have indeed resorted to the filibuster a good deal more than have Democrats, with a huge uptick when Obama took office (I wonder why).

      As for Bork, etc. I’ll just say that I second what Stardust says above. Bork really was unacceptable; he was rightly rejected. However, the Democratic Congress then confirmed Anthony Kennedy overwhelmingly in 1988 (an election year btw). Similarly, David Souter (thought to be a conservative) got overwhelming confirmation from a Democratic Congress. Heck, even Clarence Thomas was confirmed by a Democratic Congress. Also, Ginsburg received overwhelming support from GOP senators.

      So it seems Bork can’t be taken as a clear demarcation point. Rather, something happened after the year 2000. And no, I don’t think blame lies squarely with the Democrats. I’ll continue to insist that this is a function of polarization generally. And after the Merrick Garland stunt, it seems doubtful that Senate will ever vote to confirm an opposing president’s nominee again.

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    22. @Guy, you write:

      I don’t see how it’s relevant to keep citing what Stephenson thinks about long-standing practice.

      I explained why, and your failure to see why I bring that up shows that you're not paying attention. A side discussion we're having is the meaning of Advice and Consent. The fact that the Senate has always voted on a nominee, excepting of course Garland, does not imply that it is constitutionally mandated. That's the only point I'm making in that regard, so we can hopefully shelve that line of argumentation.

      The over-arching assumption of this conversation is that long-standing practices are in some sense binding — that is why we see Feser railing against the supposed outrage of calls from the Left to pack the court.

      I don't restrict Feser's OP to the mere breach of convention. It is the kind of breach that is outrageous (more on this below).

      I have heard no argument as to why this corrective action wouldn’t in fact be warranted. All I hear, from you and others, is that court-packing just feels like it would be worse than what the Republicans did, that it would be tantamount to petty schoolyard retaliation (“neener, neener”). But that’s ridiculous.

      And I have said repeatedly that such a maneuver would automatically undermine the Court's credibility for the obvious reason that seats would be added for the express purpose of determining express outcomes. The Court, as Justice Ginsburg warned, would become the arm of a political party and destroy all confidence in the objectivity of its rulings. It invites the opposing political party to follow suit the next time it is in the majority, thus reducing the Court to a rubber-stamping committee.

      You can argue that the current system also creates a rubber-stamping committe should the requisite vacancies arise subject to Senate confirmation. But that's a far cry from finding yourself in the minority and determining to correct that by adding seats to the Court. Conservatives lived with substantial liberal majorities for a long time and worked with the system (winning elections) to obtain a conservative majority on the Court.

      And contrary to your objection that this isn't a grade school hissy-fit, going that route is an extremely irrational reaction to the Garland Affair. All the GOP said was that it would abide by the will of the People in the election. The overwhelming consensus was that the Democrates would win the presidency in a landslide. Nobody, excepting a small handful of analyists (e.g. Allan Lichtman) thought that Trump would win, so at worst, Garland would have to wait a few months longer before assuming his seat on the Court (if, of course, Clinton chose to renominate him). Does it really have to be explained to you that the wait-unil-the-election tactic comes nowhere near stacking the Court toward a guaranteed outcome? You cannot argue that the attempt to confirm Barrett triggered the Left because they were calling for court-packing prior to Ginsburg's death. And like spoiled brats, because the Electorate didn't vote as expected, they'd rather destroy the credibility of the Supreme Court than behave like responsible adults.

      To be continued...

      Delete
    23. Well, Frist was the Senate Majority Leader. Not exactly one (random) person. Also, I assume you would agree that Frist is not, in any case, entirely blameless for ratcheting up the partisanship.

      That's entirely irrelevant. Frist didn't torpedo the filibuster; Democrats did. Fine. Democrats can be partisan, but when Republicans are, they change the rules. The GOP warned them that they would regret crossing that threshhold, to no avail. Now Democrats are bellyaching over the GOP doing what they did. Please.

      As you can see, Republicans have indeed resorted to the filibuster a good deal more than have Democrats, with a huge uptick when Obama took office (I wonder why).

      Since that was never a point of contention here, your chart hangs irrelevantly in midair. Again, Democrats killed the filibuster when they couldn't get their way.

      As for Bork, etc. I’ll just say that I second what Stardust says above. Bork really was unacceptable; he was rightly rejected.

      Stardust is a well-known troll. I made the mistake of reading a couple of his posts above and broke my rule not to reply to him. I instantly regretted it, so I've not read any of his other posts (and will not read another one of his). So, if he makes points you think are pertinent, you'll have to spell them out for me.

      Whether or not Bork was "acceptable" does not justify the despicable way he was treated. Even some liberals were disgusted over the matter, and your attempt to justify that treatment with your feeble complaint that he wasn't acceptable indicates the futility of continuing a conversation with you.

      Kennedy wasn't an originalist and Thomas was barely confirmed because there were still some decent Democrats who couldn't destroy a good man over an unproved allegation. That doesn't mitigate the outrage of attempting to kill a black man merely because he strayed from the liberal plantation. The vast majoirty of Democrats (46) voted against Thomas, and you appeal to that as an example of Democratic support?

      Sorry, but this is getting ridiculous. I see nothing productive coming from further discussion.

      Delete
    24. @ Bill

      such a maneuver would automatically undermine the Court’s credibility

      And how has the Court’s credibility not already been undermined by the Garland maneuver? Is it because that led to an outcome you like? What if the shoe were on the other foot?

      for the express purpose of determining express outcomes

      No, this is wrong. A new liberal justice would not be appointed to determine express outcomes. They could still maintain their impartiality and independence, as all judges do. They will be put there for their judicial philosophy and ideological bent, which is the exact reason McConnell held the seat open.

      as Justic Ginsburg warned

      Obviously, that warning came before her own death. She did state that her fervent wish was to have the filling of her seat postponed. Perhaps she heard Linsdsey Graham say, explicitly, that if a vacancy arose in the last year of Trump’s presidency, the Senate would wait to fill the seat, and she was just reiterating that point.

      conservatives lives with substantial liberal majorities...and worked within the system

      Of course, because working within the system is mandated unless the other party breaks the rules of the system. Which is the situation we find ourselves in.

      the overwhelming consensus was that Democrats would win the presidency in a landslide.

      This is wrong. Your timeline is confused. The committee sent a letter to McConnell stating that they would not give a hearing to any Obama nominee on February 23rd, 2016. This was well before Trump was guaranteed the nomination. It still looked like Rubio or perhaps Cruz had a chance, if the GOP would just consolidate behind one candidate. In any case, it’s an exaggeration to say that everyone was predicting a Clinton landslide. Polling was always close in the swing states. And 538 always had Trump’s chances of winning at around 25 percent.

      In any case, all that should be dismissed as irrelevant, for reasons too obvious to state.

      Delete
    25. @Bill (continued)

      The vast majority of Democrats (46) voted against Thomas, and you appeal to that as an example of Democratic support .

      They voted against him because they believed his accuser, who was eminently credible. In fact, there were other accusers waiting to come forward, but their testimony was blocked by — guess who — Joe Biden. Which is one of many reasons I was never a fan of Biden.

      Anyway, my point was that Thomas’s ultimate confirmation perhaps shows that the Democratic Senate at the time still maintained a high deference to tradition. But that point could be made by pointing to the Kennedy and Souter nominations. So ignore the Thomas affair if you wish.

      ***

      I’ll conclude by again asking you to imagine if the shoe were on the other foot. A SCOTUS with Amy Coney Barrett on it will be a huge affront to liberals, and indeed, going by opinion polls, to a vast majority of the country as well. As I said, the Court has already lost legitimacy for a sizeable portion of the population. There’s simply no getting around it. And that sense of illegitimacy will likely metastasize once the reactionary rulings start steadily dripping out. For that we can thank Mitch McConnell.

      It would be wise for Biden to add two seats. Which would restore the status quo ante of a one-seat conservative majority. Then, whoever wins in 2024 can add a 12th and 13th seat. And perhaps then the number can be capped at 13 through an act of Congress or even a Constitutional amendment. This would be a reasonable way to restore integrity to an institution whose legitimacy is already dimmed.

      Delete
    26. @Guy, you write:

      And how has the Court’s credibility not already been undermined by the Garland maneuver?

      Based on the ebb and flow of our conversation, your question shouldn't surprise me, but I am surprised nonetheless. Are you saying that since the credibility of the Court is shot you have no interest in restoring it? Since it’s a garbage dump, we might as well keep treating it as such, right? This is more grade school stuff that responsible adults should have no part of.

      Now, in direct answer to your question, since you consider illegitimate all conservative jurists, anything that conservatives do is by definition illegitimate on its face. And this is another instance why it’s probably an exercise of futility to have a conversation with you. All the GOP did was promise to abide by the election. There is therefore no possible way the People could find fault with that, especially since the Democrats are making the EXACT argument today. Now, if Clinton had won the election and the GOP had refused to take up any nomination, that’s a different story. I strongly suspect that Garland would have received strong GOP support in wake of a Clinton victory.

      Is it because that led to an outcome you like? What if the shoe were on the other foot?

      Well, I don’t take positions based on the moment. I really do believe that it’s the Senate’s prerogative to ignore a judicial nomination as part of its advice and consent responsibility. If the shoe were on the other foot, I wouldn’t like it for political reasons, but I would not deny the Senate’s right to do so.

      A new liberal justice would not be appointed to determine express outcomes. They could still maintain their impartiality and independence, as all judges do.

      This is manifestly false. GOP appointments are notoriously unreliable, but Democratic ones never are. There isn’t once instance in recent memory of a liberal judge turning conservative. A jurist who interprets the Constitution as a “living” document with emanations and penumbras will almost always be more reliably liberal. Moreover, if a guaranteed outcome weren’t sought, then what’s the point of packing?

      Of course, because working within the system is mandated unless the other party breaks the rules of the system. Which is the situation we find ourselves in.

      But no rules were broken. You don’t like a broken convention or practice, but that’s not a rule. You’re creating a false dilemma.

      McConnell stating that they would not give a hearing to any Obama nominee on February 23rd, 2016. This was well before Trump was guaranteed the nomination.

      Though that’s the case, pledging that you’ll abide by the will of the People isn’t something that will undermine a court’s credibility—except in liberal Newspeak. And it shortly became increasingly clear that Trump would be the nominee which many of the GOP “elite” felt was disastrous. Given the likelihood of a Clinton victory, the “opportunist” Republicans should have turned on a dime and confirmed a more moderate Garland over a potential flamer that Clinton would nominate. Nope—they held steady and got the shock of their lives (and everybody else’s) when Trump won.

      And 538 always had Trump’s chances of winning at around 25 percent.

      And Clinton’s final forecast was 71.4%. That’s pretty good, wouldn’t you say? Do you feel this reflexive need to respond no matter how inane your comment is?

      Delete
    27. @Guy (continued)

      They voted against him because they believed his accuser, who was eminently credible.

      That's nothing but your ideological t-shirt showing. If Anita Hill were "eminently credible," Thomas wouldn't have been confirmed. Eleven Democrats wouldn't have voted with Republicans to put him on the Court.

      And if Thomas really were a serial harasser, isn't it odd that after his appointment, nobody's accused him of harassment? That was a political hit from start to finish designed to keep a conservative black man from occupying such a high profile seat. It was Hill's word against his and the presumption of innocence rests in the accused.

      As to your lame "high deference to tradition," that had nothing to do with Democrats, per se. Every Senate up to then, regardless of party affiliation, voted on a president's nomination. You can't use their attempted character assassination as an example of a Democratic Senate confirming a GOP nominee when the vast majority of them voted against him. You're really pumping a dry well.

      I’ll conclude by again asking you to imagine if the shoe were on the other foot.

      Why you ask me the same question in two successive posts can only be explained in the Twilight Zone.

      It would be wise for Biden to add two seats. Which would restore the status quo ante of a one-seat conservative majority.

      Seriously? You have Biden's ear? Liberals are having conniption fits to maintain a one-vote conservative majority on the Court? You're just crafting that to sidestep my charge that you're destroying the Court's credibility while pretending that your sole motive is to "restore" the Court's integrity.

      If you really, truly want to "restore" the Court's integrity, then you'd quit your neener-neener garbage in "retaliation" (gotcha-back-last!) for the "outrage" of abiding by an election, and say that though you don't like the GOP's politics, you're thankful that the American People settled the matter by giving the Democrats control of the presidency and the Senate. You can then replace retiring justices and judges like always. If you believe in the will of the People, then you'll content yourself with the knowledge that they'll always come around to correcting matters.

      Are you terrified that Roe will fall? that Obergefell will get axed? that your state might have to allow your fellow citizens to defend themselves with firearms if they so choose?? If your nightmare scenario comes true, that will simply put those matters back into the hands of the People where they belonged. And if the People are on your side, you have NOTHING to fear. But you don't want the will of the People, do you? Contrary to what the Democrats have been saying in Barrett's confirmation hearing, it's the Left who's always sought an end-around the People by using the Courts to ram their agenda down everybody's throat.

      Delete
    28. Bill,
      "Stardust is a well-known troll. I made the mistake of reading a couple of his posts above and broke my rule not to reply to him. I instantly regretted it,"
      Of course you regret having your positions so easily exposed as nonsense.

      For you to provide some sound rational counter arguments would require that you rise above mere virtue signaling, but so far you have not chosen to do so.

      Delete
    29. @ Bill

      You are forcing yourself to defend an impossibly incoherent position. Hence your’e starting to sound like a broken record, and unfortunately that record doesn’t even have a solid point to repeat.

      since you consider illegitimate all conservative jurists

      I don’t believe that and never said it. The fact that you made it up proves that you are arguing in bad faith. In fact, Roberts, Alito, Thomas, and Kavanaugh are all legitimate jurists. Do I need to spell out why? It is because a duly elected president nominated them (per his right) and a duly elected Senate gave them a hearing and a vote (per their responsibility). Now, if a Senate chooses not to abide by that normative procedure for a vacant seat, then it casts a pall of illegitimacy on the jurist who does eventually fill the seat. I don’t think you actually find this hard to understand. You are just trying to dance around it because, again, you have forced yourself to defend an impossibly incoherent position.

      all the GOP did was promise to abide by the election

      And that was not their right to do based on long-standing democratic norms. If they *were* to have abided by the election, they would have given Obama’s nominee a hearing since he was, after all, the winner of the election. The people whom you suddenly claim to cherish trusted Obama with that responsibility for four years following his inauguration in 2012.

      And of course, as you acknowledge (I think), the Democrats could easily turn around and state the same argument: that their retaliatory measures can be judged by the people in the next election. After all, if we are now vesting the people with the power to vote on SCOTUS judges willy-nilly, then surely they can vote in a Republican government in 2024 to further add to the Court. Why is such an argument good for one party but not the other? You cannot say, because, again, you have forced yourself to defend an impossibly incoherent position.

      If Clinton had won and the GOP had refused to take up any nomination, that’s a different story.

      Good, I’m glad you’ll join me in condemning Feser for ignoring Cruz and Grassley’s outrageous statements, and pretending as if it is only the Democrats who are captured by norm-busting radicals.

      I really do believe it is the Senate’s prerogative to ignore a judicial appointment as part of its advice and consent responsibility.

      Of course, you acknowledge that such an action is nevertheless against the long-standing practical interpretation of that language. You just think it was all right anyway.

      Well, similarly, it is within the president’s powers to appoint new justices, despite longstanding practices that have kept them from doing so. You have no argument for this rejoinder because, again, you have forced yourself to defend an impossibly incoherent position.

      if a guaranteed outcome weren’t sought, then what’s the point of packing.

      Pose that question to McConnell.

      you don’t like a broken convention or practice, but that’s not a rule. You’re creating a false dilemma.

      There is no false dilemma. And again, the rejoinder is that it’s also not a rule that a president can’t expand the Court. See above.

      Republicans should have turned on a dime and confirmed a more moderate Garland.

      Or they could have gambled that a roughly on-in-three shot of having a bone fide conservative was worth it. But again, this is entirely irrelevant.

      Delete
    30. @Bill (continued)

      isn’t it odd that after his appointment, nobody’s accused him of harassment ?

      Well, Thomas is a smart man, and sexual harassers aren’t like serial murderers. They can be shamed into reforming. It seems likely that up until his being exposed by Hill and other women, he simply never suffered adverse consequences for his behavior.

      can only be explained in the Twilight Zone

      This is the weirdest criticism I’ve ever come across. Your pettiness is showing.

      you can then replace retiring judges and justices like always

      Ah, but there’s that phrase: “like always.” What the Republicans did to secure the Gorsuch and Barrett seats precisely wasn’t like always. But you would love for the Democrats to just brush it off, let bygones be bygones, and now go back to the old rules.

      And by the way, you haven’t mad any substantive rejoinder to the proposal that Biden should expand the Court to 11, then let the next election decide 12 and 13, then cap off the Court at that number — perhaps with term limits as well. That would be a reasonable corrective measure, but cuts against your attempt to pretend like liberals are interested in nothing more than partisan hyper-escalation.

      Delete
    31. @Guy, you repeatedly accuse me of offering an incoherent position, yet your long replies fail to demonstrate anything incoherent in what I say. That's not how you argue a position. You offer paragraph after paragraph of disagreement, but nothing that shows incoherence.

      I'm glad you don't consider textualist judges disqualified out of the gate. Given that, I apologize for the accusation. I did so because you appear to align yourself with Democratic liberals, and I stated earlier that they now consider any originalist nominee a non-starter. You neither denied that nor condemned it (not obligatory for certain), and I took that as tacit agreement. Again, I apologize.

      And that was not their right to do based on long-standing democratic norms.

      Neither Democrats nor Republicans are bound by your preferences or your conventions. If advice and consent empowers the Senate majority to ignore a nominee, then it follows that it is their right to do so, your political objections notwithstanding. And the "retaliatory measures" includes packing the court to overturn a conservative majority (your appeal to preserve a one-vote conservative majority notwithstanding). Recall that I've never argued against the right of Congress to add seats to the Supreme Court. The political wisdom of such a maneuver aside, it is perfectly legal to do so.

      To me, a legitimate "retaliatory measure" is a Democratic Senate's refusal to consider a Republican nomination in an election year. I fully expected the Democrats to follow suit the next time around. Packing the Court, though legal, is an altogether different matter for the aforesaid reasons.

      Well, similarly, it is within the president’s powers to appoint new justices, despite longstanding practices that have kept them from doing so. You have no argument for this rejoinder because, again, you have forced yourself to defend an impossibly incoherent position.

      I have no idea what that's supposed to mean. Nobody here, especially yours truly, has argued that a president cannot appoint new justices. President Trump has appointed three of them, so what are you getting at? Are you rather saying that the president is legally entitled to nominate judges after a law is enacted which expands the number of seats on the Court? If so, then the president doesn't currently have the authority to unilaterally expand the Court which obviously means that he doesn't have the authority to add judges beyond what is currently prescribed.

      continued...

      Delete
    32. As to Justice Thomas, you must really be bitter over that one. Unless you know Anita Hill personally, you have no way of knowing how credible she is. Yet, 12 women who worked with him swore they never saw him cross the lines of impropriety with them or anybody else. The holes in her testimony were worse than Ford's against Kavanaugh. At any rate, your inane claim that she was credible is an opinion not shared by the majority of Americans at the time and thankfully not shared by the majority of the Senate. And the fact you you stridently push it indicates clearly your approval of using unproven allegations to destroy a person's career.

      This is the weirdest criticism I’ve ever come across. Your pettiness is showing.

      My disagreements with you notwithstanding, and your being an apologist for the Left on a conservataive website aside, you're clearly more intelligent than the likes of Stardust. I'm just astounded that you'd ask the same question in successive posts. It's like you clearly forgot what you had just asked. Call it anything you like, but that's REALLY odd.

      What the Republicans did to secure the Gorsuch and Barrett seats precisely wasn’t like always.

      When a justice dies or resigns, the "normal" procedure is for a president to nominate a successor and the Senate to accept or reject him or her. Under the constitutional standard, there is nothing at all abnormal about Barrett's confirmation. If I recall correctly, a "Barrett situation" (vacancy so close to an election) has arisen but once prior to RBG (when Chief Justice Taney died in October of 1864), but Lincoln never said stuff like, "Let the People decide who the successor will be" or anything else Kamala Harris tried to put in his mouth. The Senate was simply out of session till December, and that's when Lincoln nominated Chase--who was confirmed the same day!

      Delete
    33. Bill,
      "When a justice dies or resigns, the "normal" procedure is for a president to nominate a successor and the Senate to accept or reject him or her."
      With a VOTE.

      Then, if the VOTE is against the nominee the normal thing was and is for the president to make a second nomination who also gets a VOTE.

      That is what happened with Bork and Kennedy. That was normal. That conformed to democratic norms. That was regular order.

      McConnell's senate didn't reject a particular nominee, McConnell categorically rejected ANY and ALL nominees.

      McConnell and his henchmen destroyed the process, not simply reject a particular nominee.

      McConnell didn't Bork Merrick Garland, rather, he flouted the normal constitutional process whereby a president nominates, the senate VOTES, and then the president nominates again, and the senate VOTES again.

      That process of democratic norms drives the court toward the center. The normal process, such as the Bork/Kennedy process forces the president to make a consensus nomination, not a radical in either direction.

      Jury packing, committee packing, panel packing, and court packing happens when one side uses some dishonest, hypocritical, corrupt, or illegal means to pack in members into a fixed number of seats, obviously.

      That is why the term "court packing" typically appears in scarequotes when applied to expansion of the court. Calling expansion of the court "packing" is a mangling of the language because "packing" is done into a fixed size container, generally, such as jury packing wherein the jury is still 12 people.

      Expanding the court does have the same intent and effect as real court packing, packing members into a fixed number of seats, because, of course, the end result is a change in the ratio of seats between appointees of opposing sides, So in that somewhat mangled but functionally equivalent sense expansion, while a mangling of the language, can with scarequotes, be called in some sense "court packing"

      The Republicans already packed the court because McConnell did not provide advice and consent to any particular nominee, rather, he deserted his duty to provide advice and consent to successive nominees if the first nominee were to be shown too radical or otherwise problematic.

      Since McConnell and all his Republican henchmen, as with jury packing, already corruptly packed the Supreme Court, we the majority will bring the balance back by expanding the court.

      Delete
    34. @ Bill

      I trust by now that the main point is clear. Your side can’t appeal to the plain meaning of the Constitution (buried, perhaps, by centuries of continuous practice in one direction) to make your case, nor can you appeal to the binding power of longstanding norms. You’re boxed in on both ends.

      Thus, again, all you have is a nebulous sense that adding seats to the court just feels like it would be an unwarranted retaliatory measure. But you’ve given no reason for that claim. The most you can do here, it seems, is claim redundantly that it just feels one shouldn’t further add to the illegitimacy of the Court by taking corrective action. We should just accept the Republican malfeasance (or heist) and let bygones by bygones. But again, there can be no argument for such a claim. Why should it be incumbent on Democrats to staunch the bleeding of legitimacy? Why shouldn’t we let the Democrat take their retaliatory measure (which, by the way, would be perfectly legal whereas McConnell’s denying a hearing to Garland was arguably not), and then apply pressure on the Republicans next time to say “Alright, this has gone far enough — let’s restore things to how they use to be”? Aren’t you just insisting that it should be the Democrats who capitulate to bullies? Here there are simply no standards to appeal to, which is why all the blame lies with the GOP who broke the institution in the first place.

      My own feeling is that we have entered a new phase in the institution fo the Court. McConnell opened Pandora’s box, so let’s deal with the messy aftermath. It seems highly likely that from now on, no Senate will ever vote to appoint a justice nominated by an opposing president. Democrats will just say (rightly) that we wouldn’t be able to trust the Republicans to do the same if the shoe were on the other foot. So the days of a Republican Anthony Kennedy or David Souter getting 90+ votes from a Dem Senate are gone.

      Furthermore, I actually wouldn’t necessarily object to an escalation whereby each party keeps adding seats to the Court when they come to power. (And by the way, whether Biden will come to power is an open question — see Thomas Edsall’s lates column in the NT Times.) There’s no reason why we shouldn’t end up with, say, a 25-seat Court — and indeed there are reasons why such would be a good thing. This would let the people decide the makeup of the Court, something Republicans post-Garland now claim to be all in favor of. Furthermore, it will force the electorate to confront the question of the Court’s legitimacy, which McConnell has dragged into the daylight. That is to say, the people will now be forced to decide which reforms to institute in order to restore integrity to the institution. Perhaps we will finally have terms limits and a Constitutional amendment specifying how many justices there shall be, and what constitutes “advice and consent.” Good can come of this.

      Delete
    35. @ Bill continued

      it’s like you clearly forgot what you had just asked

      Um, did you see where I specified that I was making the point again — as in “Again, let me say...” “The point, once again, is that ...” It’s like you’ve never encountered written or spoken discourse before.

      Justice Thomas

      Sigh. I don’t really want to go down this road. Do I personally know Anita Hill or any of the women who supported her testimony? No, but neither do you know any of the women who vouched for Thomas’s character. To me she seems credible. And there is certainly probative weight to the fact that others have backed her up. The last thirty years have shown her NOT to be the “a little bit nutty, a little bit sludgy” fame-seeker she was smeared as by Thomas and the Republican. I don’t find the alleged “holes” in her story to be all that compelling, either, since they are consistent with what we know about the personal dynamics that often govern workplace sexual harassment. And it bears mentioning, too, almost as a sidebar, that no one could accuse the #MeToo movement of being partisan. (See Franken, Al).

      Delete
    36. Modus,
      Furthermore, you act like the senses of "pack" in "court pack," "jury pack" and the colloquial "pack" are univocal. They're not. Indeed, neither are the senses of "pack" in "court pack" and "jury pack."
      Words have meanings.

      Yes, I speak univocally. I do not equivocate like the typical Christian apologist.

      Jury packing and court packing are very much the same. A jury is a panel of fixed size that hears evidence and issues a binding judgment, as does the Supreme Court. Packing a jury is just like packing the Supreme Court, using dishonest, hypocritical, corrupt, or illegal means to install biased members into a fixed number of seats.

      Words do indeed have meanings. That is what speaking univocally is, to use words according to their meanings, to not equivocate, as the typical Christian apologist is so eager to do.

      McConnell and his Republican henchmen have already packed the Supreme Court.

      When Democrats were the majority in the senate a Republican president’s nominee got a floor vote. Sometimes the vote was negative, in which case the Republican president submitted a second nominee who also got a floor vote and who was then confirmed by most Democrats voting for the Republican nominee.

      That is the democratic norm.

      That is regular order.

      That is not packing the court.

      McConnell and his Republican henchmen blew that all up. “They have sowed the wind and now they will reap the whirlwind”.

      The Republicans had the “rather childish delusion that they were going to bomb everyone else, and nobody was going to bomb them”.

      McConnell did not merely choose to not consent to a particular nominee; he refused to even take up ANY nominee of the president, a gross dereliction of duty and a vicious violation of democratic norms.

      McConnell will go down in history as the most brazen and destructive hypocrite in senate history, by far, no other even comes close.

      The OP does not have the courage, honesty, or decency to even mention Merrick Garland.

      We, the majority, are fed up with that sort of willful ignoring of the obvious fact that the Republicans have already perpetrated a heinous act of REPUBLICAN COURT PACKING.

      Delete
    37. @Guy, you write:

      I trust by now that the main point is clear. Your side can’t appeal to the plain meaning of the Constitution (buried, perhaps, by centuries of continuous practice in one direction) to make your case, nor can you appeal to the binding power of longstanding norms. You’re boxed in on both ends.

      Then you're trusting in a delusion of your own making. I can and have successfully defended the fact that the majority party in the Senate is authorized by the Constitution to ignore a presidential nomination, and nothing you've written comes close to successfully challenging that. And there is no "binding power" of longstanding norms. The filibuster was a very longstanding norm that the Democrats killed, so quit bellyaching about "norms." You don't like it when Republicans break norms, but it's okay when Democrats do it. I get it; you're an ideologue and your side can do no wrong. You obviously can't rationally attack "norm breaking" when your side did it, so you jump on the merry-go-round of they-did-it-first! Nyah, nyah....you started it! No way, Jose. I'm not boxed in at all.

      As to Court packing, I've never argued that it just feels wrong, but I guess you have to make that up because you're incapable of engaging the real argument. Why did the majority of Democrats oppose FDR when he tried to pack the Court? Why did key Democrats, decades later, including RBG, lament that it was attempted? And why do Republicans oppose packing the Court? They all speak with one voice: Because it's a transparent attempt to guarantee a political outcome which undermines the Court's credibility. This is obvious to liberals, conservatives and centrists, for they've all made the same argument. You're attempting to defend court packing because it's the flavor of the day retaliatory measure against GOP abuses. "You bludgeoned your way to a Court majority, so we'll bludgeon it away from you in one fell swoop!" Such an approach was infantile back in the 1930s, and it's equally infantile today.

      Um, did you see where I specified that I was making the point again — as in “Again, let me say...” “The point, once again, is that ...” It’s like you’ve never encountered written or spoken discourse before.

      Um, did you see where I specifically included your word "again" in my citation of you when I replied? It's still inane the ask the same question twice in successive posts.

      And if you didn't want to go down the Thomas road, you should have dropped it. Instead, you were so desperate to defend your fanciful notion that the Democrats were as pure as the wind driven snow with respect to him that you propped up lying Anita Hill as eminently credible. I can call her a liar not because I personally know her, but her sworn testimony is flatly contradicted by the FBI agents who initially interviewed her. Moreover, she swore five times that she'd not been told by a Democratic staffer that she might be able to force Thomas to withdraw without her being publicly identified only to admit afterwards that she had been told just that after interviewing with her lawyers. If all you had said initialy was "to me she's credible," I could have ignored it. But when you elevate her to sainthood, I'm crying foul. So, the point stands: The dirt the Democrats dumped on Bork and Thomas detonated a bitter legacy that remains to this day.

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    38. Guy's main point is bizarre. A case can certainly be made that the Republican hardball in 2016 wasn't great for democratic norms, although Guy is wrong that McConnell didn't emphasize that it mattered that the president and senate at the time were of different parties. But this is clearly not in the same league as court-packing. Political hardball isn't anything new. But court-packing would be to entirely eliminate what legitimacy SCOTUS has left by turning it entirely into a political body. Not only would this invite tit-for-tat from Republicans, but it would risk states just ignoring SCOTUS. If it is just an entirely political body, why even listen to it when you disagree? Court-packing is constitutional terrorism. I doubt Biden at least actually would go there.

      Bill, you make a good point that the Dems are responsible for the bitter battles over the court, but I think the real culprit is Earl Warren. There's no symmetry between so called conservative judges and liberal ones. Generally conservative judges, like the great Bork, have a judicial philosophy that differentiates law and policy. They don't treat their role as justices as that of super-legislators. The stats actually bear this out: Republican appointees are far more likely to rule against outcomes they presumably would support, if the law requires. Democratic appointees far more likely accept an outcome they dislike for the sake of good legal practice. The irony is that the best way to solve the politicization of the courts would to consistently pick judges would have a judicial philosophy that separates the law from their ideological and policy preferences. It doesn't have to be only originalists and textualists that are chosen. There are other positions that aren't just a robe for ideology, like the minimalism of Chief Justice Roberts or a common law precedent based philosophy. But judges, left or right, who replace law with ideology need to be rejected.

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    39. *Dem appointees are far less likely to accept outcomes they don't like for the sake of applying the law properly.

      Delete
    40. Bill,
      “The filibuster was a very longstanding norm that the Democrats killed,”
      No, not for Supreme Court justices they did not.

      The Republicans started their court packing in the lower courts. They routinely blocked nearly every nomination made by Obama, which resulted in a huge number of vacancies that Trump later filled.

      To reduce this blatant court packing by the Republicans the Democrats eliminated the filibuster for lower court judges but left the filibuster in place for Supreme Court justices.

      Then, when Republicans took the senate it was the Republicans who eliminated the filibuster for Supreme Court justices. This enabled further Republican court packing by a combination of Republican dereliction of duty and brazen violation of democratic norms by refusing to take up any nominee of Obama.

      Because the Republicans had gotten rid of the filibuster for Supreme Court justices the Republicans were able to complete their packing of the Supreme Court in the Trump term.

      No other majority leader has been so brazenly hypocritical and corrupt as McConnell.

      Packing, be it a jury or a court, means to install biased members by dishonest, hypocritical, or corrupt means, which McConnell and his Republican henchmen began with the Merrick Garland nomination and have completed with the Amy Barrett confirmation.

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    41. @Bill

      I can and have successfully defended the fact that the majority party in the Senate is authorized by the Constitution to ignore a presidential nomination

      And? This was never the lynchpin of your argument. However, now that you irrelevantly bring it up yet again, I wonder how it squares with your admission (made earlier) that ignoring a president’s nominee for four full years would be an egregious abdication? After all, if the Constitution grants the Senate that power, why not just go on ignoring a president’s nominees indefinitely? Would that still count as “advice and consent”? Would it just be “political hardball”?

      Let’s be clear on one thing: the Senate did not render their judgment on Garland, specifically, by declining to act. No. The Republicans on the judiciary composed a letter in February 2016 stating that they would not consider *any* Obama nominee — and this was weeks before Obama nominated Garland. No judge could possibly have gotten a hearing until after the election — and if Clinton lost, then Obama’s last 11 months in office would effectively be zeroed out in terms of what was owed to him by the Senate.

      It’s honestly laughable that anyone could consider this anything except a stripping of Obama’s rights (granted him by the people), and an abdication of the Senate’s duty. You can’t well offer advice and consent on appointments if you state at the outset that there will be no appointments.

      But okay, I’ve been willing to grant for argument’s sake that the Senate does have that authorization. The point about being boxed in is simply that those who want to expand the Court can appeal to constitutional authorization just as easily (i.e., the Constitution doesn’t forbid it). You keep saying over and over that you understand this point. And I believe you do. But instead of just admitting how it obviously undermines your position, for reasons of pride (I imagine) you keep hopping onto the carousel of obfuscation.

      They all speak with one voice: Because it’s a transparent attempt to guarantee a political outcome which undermines the Court’s credibility

      So this is the actual lynchpin of your argument. And the rejoinder is simple. I’ve stated a version of it several times already. The sweeping consensus about court-packing that you refer to developed prior to McConnell’s heist of Obama’s seat. What would the Democrats of the 1930s have though of court-packing in the aftermath of Garland’s treatment? You can’t possibly say, so you can’t possibly appeal to them. (However, I can imagine what they would have considered McConnell’s action a version of court-packing in itself, which clearly it is.)

      The fact is that the consensus has now shifted, and everyone with at least a third-grader’s reasoning ability knows the reasons why. Several eminent legal scholars are on record stating that the GOP’s withholding of advice and consent for Garland was unconstitutional. Certainly many of them are now at least sympathetic to the court-packing argument, if not outright in support of it.

      So no, people aren’t speaking with one voice any longer. Reform of the Court (including term limits and jurisdiction-stripping) will likely be a hot topic for the foreseeable future, especially if its decisions start to become glaringly unpopular (as looks increasingly likely).

      Delete
    42. @Bill continued

      Um, did you see where I specifically included your word “again” in my citation

      You said, “It’s like you clearly forgot what you had just asked.” But why would you think that if you just saw that I had written that I was making the point again? (again: adv. another time; once more.) You were just being petty and now you’re doubling down on your pettiness. Honestly, all your talk about schoolyard immaturity is starting to look like projection.

      The filibuster was a very long-standing norm that the Democrats killed, so quit bellyaching about “norms”

      Wow. Talk about a nuh-uh-you-hit-me-first kindergarten tantrum. Earlier I had started expand on the topic of the filibuster, but since you defensively brushed it aside I figured I’d drop it as well. But I guess now you’re bringing it up again as a kind of deus ex machina for yourself.

      Well, that won’t work, because again, it was the Republicans who undermined long-standing practice vis-a-vis the filibuster. I know this angers you to hear, but it’s true. The filibuster was never meant to be a permanent and automatic veto for the minority party, which is precisely what it had become under Obama — again, contrary to long-standing practice and thanks to the Republicans. I showed you that chart from the Brookings institute, but I can pull up harder numbers if you like. Also, the filibuster had already been weakened in the 1970s, so it already wasn’t the same as it had been historically. Honestly this is just lame.

      And I know you consider Stardust a troll, but he (she?) makes cogent points about the filibuster and McConnell’s unprecedented blocking of Obama’s judicial appointments. So if you can control your urge to faint I suggest you read those brief paragraphs.

      Anita Hill

      The FBI agents had credibility issues of their own. As Jane Mayer and Jill Abramson report in their book on the Thomas/Hill imbroglio, the agents claimed that statements Hill had made publicly contradicted what she told them in her FBI interview; however, records made prior to the FBI interview show Hill making statements that were *consistent* with her later public testimony. Indeed, the FBI even had one of these records in hand when they interviewed her. You can look this up yourself in the Mayer-Abramson book.

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    43. Mechanisms like the filibuster and judicial confirmations are supposed to be brakes on more extreme policies and appointments. Barack Obama was the most extreme president in US history so far. His SCOTUS were atrocious, for example, and make Ruth Bader Ginsburg look like yours truly. There may be valid criticize the Republican response to him, but it's silly to leave out half the equation.

      Delete
    44. SP has never written anything cogent in his life. Please don't feed the trolls. Have some respect for the blog.

      Delete
    45. Guy, you neglect the one reform of the courts that would really achieve something: the separation of ideology and policy from law. Why don't Democrats and Republicans come together and actually devise a framework for appointing judges who have a judicial philosophy that isn't subordinated to their ideological preferences? It doesn't have to be narrowly originalist. There are other authentic judicial philosophies. And even the originalist don't have to agree in everything with the great Bork or Scalia.

      Delete
    46. Modus,
      "Heck, apparently RGB on her deathbed made it her "fervent wish" for her seat not to be filled until a "new president is installed." That seems like a call to pack the court"
      So you admit it.

      Calling to withhold taking up a nomination until the next president takes office seems to you like "a call to pack the court".

      Refusing to take up the nomination of a justice until a new president takes office is packing the court, by your own words.

      It is good to read you admit that McConnell and the Republicans packed the Supreme Court by doing just what you say is "to pack the court".

      The Republicans have already packed the court by your own words, indeed.

      I challenge Dr. Feser to make the same admission, or offer specific rational argumentation to the contrary.

      Delete
    47. @Guy, first things first. No, I will not read another of SP's posts. Again, if you think he's written something you'd like me to reply to, you'll have to reframe it in one of your posts. I've interacted with him enough to know that it's a pointless exercise, and this after I defended him on multiple occasions.

      After all, if the Constitution grants the Senate that power [to ignore a nominee], why not just go on ignoring a president’s nominees indefinitely? Would that still count as “advice and consent”? Would it just be “political hardball”?

      Both, actually. Given that everybody involved, excepting of course the nominee(s), serves at the will of the electorate, such a maneuver would have to be politically acceptable. It would take an extreme situation (one that has never arisen in our history) to justify that tactic, but as an academic question, the Senate technically has the authority to ignore every judicial nominee.

      Let’s be clear on one thing: the Senate did not render their judgment on Garland, specifically, by declining to act. No. The Republicans on the judiciary composed a letter in February 2016 stating that they would not consider *any* Obama nominee — and this was weeks before Obama nominated Garland.

      Yes, that's correct. Quite obviously, however, if Obama had thrown up his hands and nominated Gorsuch in place of Garland, everything probably would have changed. But the letter was merely a communiqué that served the president notice that the Senate would not take up any of his nominations. Of course it wasn't a judgment on Garland because he hadn't been nominated at that point.

      Once Garland was nominated, the Senate's "advice and consent" constituted inaction. As "Scalia" noted in the link I provided above, if Johnny Smith needs his parents’ consent to go on the scouting trip, Johnny will not be allowed to go if his parents do nothing. Their express consent is necessary if Johnny is to go. They have the prerogative of signing the permission slip or throwing it away.

      No judge could possibly have gotten a hearing until after the election — and if Clinton lost, then Obama’s last 11 months in office would effectively be zeroed out in terms of what was owed to him by the Senate.

      The Senate doesn't owe him a plug nickel. You keep making that and similar assertions because you've worked yourself up into a frenzy over your false claim that the Senate acted "unconstitutionally."

      It’s honestly laughable that anyone could consider this anything except a stripping of Obama’s rights (granted him by the people), and an abdication of the Senate’s duty.

      What really laughable is your Energizer Bunny repetition when all of your arguments have been rebutted. Any president has a "right" to nominate a successor. Nobody stripped him of that right and nobody denied that he had the right to do so. And the Senate equally has the right to tell him to take a hike. Obama had the power to nominate, not the power to appoint. Appointment rests in the Senate, so no, Obama was not stripped of any of his rights. Do you just make this stuff up, like your making up the president's "right" to make multiple "appointments" to the Court?

      Delete
    48. But instead of just admitting how it [Congress' authority to add seats to the Court] obviously undermines your position, for reasons of pride (I imagine) you keep hopping onto the carousel of obfuscation.

      Since you acknowledge that I've never denied the legal authority to expand, there is no possible way it "undermines" my position, and pride has nothing to do with it. It's YOUR pride that's the sticking point. You yap about norm breaking when your side breaks norms, so you've got to play the he-did-it-first card that you learned from others at preschool. Even conceding the point, why do you have to act like a baby because the other side does? The answer? Because you are a baby.

      The sweeping consensus about court-packing that you refer to developed prior to McConnell’s heist of Obama’s seat.

      It was obviously not a "heist" to the American People. That's just your panties getting tied in a wad over the People electing Trump over Clinton and retaining a Republican majority in the Senate to boot! And it wasn't a "heist" in constitutional terms because, for the umpteenth time, it’s the Senate's prerogative to ignore a nominee.

      What would the Democrats of the 1930s have though of court-packing in the aftermath of Garland’s treatment? You can’t possibly say, so you can’t possibly appeal to them.

      And you can't possibly say what they would have done either, but we know what they DID say about the concept itself. You're saying what your mommy tried to warn you to avoid: Two wrongs make a right! No Little Guy, two wrongs don't make a right. Even conceding the egregious outrage of the Senate exercising its constitutional prerogative, court packing was wrong then and it’s wrong now.

      And one of the liberals in the aftermath of Garland said, "Nine seems to be a good number. It's been that way for a long time...I think it was a bad idea when President Franklin Roosevelt tried to pack the court...If anything would make the court look partisan, it would be that—one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to. That would impair the idea of an independent judiciary." That was, of course, Ruth Bader Ginsburg. But of course she wasn't the only one offering those sentiments. You're so obsessed with "gotcha-back-last" you're willing to trash the institution she cherished. You need to grow up.

      You can't, of course, deny that she said that, so you dredge up what she supposedly said before she died. Maybe she said it, maybe she didn't. We don't know because we heard it second-hand, but we do know what she said about a president being elected for four years, not three, and the Constitution not being affected by the calendar. Now, we've got to conclude that she was either a partisan hack like you, or she really believed what we know she said. I think her life's testimony strongly indicates the latter.

      Delete
    49. You said, “It’s like you clearly forgot what you had just asked.” But why would you think that if you just saw that I had written that I was making the point again? (again: adv. another time; once more.) You were just being petty and now you’re doubling down on your pettiness.

      Call it what you will. In two successive posts asking the same question is a doofus thing to do. It's not like you're writing an essay and five pages later you repack as a reminder. Man alive, it's the very next post due to character count limitations. Yeah, it's a stupid thing to do, and you deserved the "it’s like you forgot" remark which is obvious snark because of the stupidity of your act.

      Well, that won’t work, because again, it was the Republicans who undermined long-standing practice vis-a-vis the filibuster. I know this angers you to hear, but it’s true..

      There you go again. It's....it's....the nasty Republicans....in order to deflect the truth that the Democrats killed the filibuster for federal judicial nominations. In eight years, Obama nominated and the Senate confirmed some 329 judges to lifetime appointments, representing almost 40% of the entire federal judiciary. The GOP confirmed 99% of Obama's judicial nominations. According to that rabid, right-wing rag called The Washington Post, "only 29 nominees (12 during the Obama presidency and 14 during the George W. Bush presidency) did not receive a final vote or had their nomination withdrawn. In other words, eventually most of the nominees were approved, either by voice vote or with overwhelming support." The Post goes on to say:

      While Obama’s judicial nominees have often waited a long time for a vote after committee approval, we have earlier documented how George W. Bush’s nominees were slow-walked by Democrats before the committee hearing. Bush’s appeals court nominees, in fact, took four times as long to get a hearing as Obama’s nominees.

      At bottom, the Post rated the Democrats' claim about "filibusters" two Pinocchios.

      You're gonna pump that merry-go-round for all its worth of who started it, but the fact remains that the Democrats killed the filibuster, and the fact remains that they lack the slightest shred of justification for doing so.

      Finally, Saint Anita Hill. Yeah, two FBI agents have "credibility problems" and I guess 9/11 was an inside job too, right? Your Lady SWEARS five times that she wasn't told something only to admit before the committee that she was told what she denied, and you complain about credibility problems with FBI agents?? Do you have any experience in law enforcement? Do you know what would motivate an FBI agent to retain information to determine whether a witness is credible? So, the agents are briefed or are aware that the witness makes certain claims. They then interview her and she gives them a vague narrative when they encourage her to be as detailed as possible. Hill, in damage control, flatly denied they told her that. Sorry, Bub, when a proven liar contradicts FBI agents, I go with the law. Not you, of course, because you're a partisan hack.

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    50. Modus,
      “the analogy falls apart because the typical understanding of court packing involves the positive power to spam candidates for confirmation that is only afforded to the executive of the presidency, not the negative power of the Senate to block whatever candidates the president may choose. McConnell as Senate majority leader only has the latter power, not the former.”
      McConnell did not complete the process of Republican court packing by himself, rather, McConnell conspired with his Republican henchmen, the Republican senators and the Republican president, to achieve the Republican court packing that began by corruptly refusing to take up any nomination by Obama, and is now near completion with the confirmation of Amy Barrett.

      Republican court packing was made a reality by a team of thieves, McConnell being the lead thief, but unable to complete the heist without the aid of his Republican henchmen.

      It used to be a democratic norm that even when the president was of the other party he would seat a justice. It has been normal for my whole life, at least, for there to be filibusters, accusations, and negative votes, but then there would always be a floor vote on a nominee and the president, even of the other party, always got to seat a justice when a seat opened up in his term.

      McConnell destroyed that democratic norm.

      But, McConnell’s destruction of the democratic norm of voting on at least 1 nominee and eventually seating a justice was just the beginning of the Republican court packing conspiracy of thieves.

      To ensure that the Democrats could not halt the heist in progress McConnell destroyed a second democratic norm by eliminating the filibuster for Supreme Court justices. By blowing up 2 major democratic norms McConnell cleared the way for one of his henchmen, Donald Trump, to contribute his part to the heist.

      Now we see McConnell in the most brazen example of hypocrisy in senate history, his push to complete the heist by confirming Amy Barrett.

      The court, by all democratic norms, by the constitutional intent as acted out in every prior instance in my lifetime, was rightfully due to be a 4/5 split. Because of the brazenly hypocritical treachery of McConnell and his Republican henchmen the court is now about to be a 3/6 split with the confirmation of Amy Barrett.

      To bring the balance back it is fair, and right, and moral, and constitutional for a president Biden and the Democrats to right this terrible theft perpetrated by the Republicans and expand the court to a 5/6 split.

      4/9 = .44
      5/11 = .45
      So, 4/9 is virtually the same ratio as 5/11.
      Further, with a 4/5 split the minority needs to convince 1 moderate to prevail.
      Whereas, with a 5/6 split the minority also needs to convince 1 moderate to prevail.

      One of the truly great things about our constitutional democratic republican system of government is the intricate network of checks and balances such that it is very difficult for any 1 person or even any 1 party to establish a monopoly on power.

      By breaking the democratic norms of advice and consent, as well as breaking the filibuster for Supreme Court justices, the Republicans have succeeded in packing the court in an attempt to move toward a Republican monopoly on power.

      But, there are also legal means to nullify the Republican court packing already perpetrated. I very much hope that the Democrats will sweep the house, senate, and executive, then expand the court by 2 seats to right the court packing wrong already perpetrated by the Republicans.

      Delete
    51. Bill,
      “Two wrongs make a right! No Little Guy, two wrongs don't make a right.”
      You said it wasn’t wrong in the first instance, just the senate exercising its constitutional prerogative. Ok, fine, then it won’t be wrong in the second instance, just the congress exercising its constitutional prerogative.

      Oh, wait, I’m sorry, like McConnell you are a hypocrite, so you want heads you win tails I lose. Nope, daddy don’t play dat.

      “so we would have more people who would vote the way we want them to. That would impair the idea of an independent judiciary."
      You mean by hypocritically refusing to act in the one case but not in the other, against democratic norms? Yes, the Republicans have impaired the independence of the judiciary, agreed.

      “you're willing to trash the institution she cherished. You need to grow up.”
      So, destroying the democratic norms of confirming an opposing party justice nominee and having the filibuster for Supreme Court nominees somehow does not trash the institution, but expanding the court does? Why?

      How is an 11 member Supreme Court somehow “trash”? What makes congress exercising its prerogative “trash”?

      Oh, never mind, I forgot again, you are hypocrite like McConnell, you get to destroy democratic norms and exercise prerogatives but if the other side exercises a prerogative that is somehow “trashing” in your little hypocritical parallel universe.

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    52. @ Bill

      The Senate doesn't owe him a plug nickel. You keep making that and similar assertions because you've worked yourself up into a frenzy over your false claim that the Senate acted "unconstitutionally."

      This remark says everything about your lack of integrity in this exchange. As you well know, I have not been claiming that the Senate acted unconstitutionally.

      The only point I “keep making” is that the practice of “advice and consent” has been fixed by long-standing norms. And the question is: Does one party’s abandoning of those norms — and their hypocritical about-face four years later — justify another party’s busting the norms that have governed against court-expansion? It is irrelevant whether the norms of advice and consent are expressed in the Constitution, simply because it is irrelevant whether the norms prohibiting court-expansion are expressed in the Constitution (since everyone agrees that the latter are not, nor can they be plausibly grounded in it.)

      Simply put, your side can never appeal to constitutional prohibition in this argument, so the issue of what the Constitution indisputably says about advice and consent can be dropped in turn. We’ve only been talking about normative practices.

      You reintroduced this issue of constitutional interpretation in your prior post. I pointed out that was irrelevant and was never the lynchpin of your argument, and I explicitly reminded you that for argument’s sake I have been granting you your point. Now I did indulge you for a brief moment, which I almost regret, because it gave you rein to take up over one-third of your latest post going on about something that was never actually in dispute in this exchange, and then (predictably) pretending as if that were the central issue all along. (I guess you were acting in the spirit of the debater’s maxim that if you know you’re losing, try to run down the clock answering a question you wish you’d been asked instead of the one you had been.)

      However, I don’t actually regret it, if only because you ended up saying, vis-a-vis indefinite failure to act, that “given that everybody involved, excepting of course the nominee(s), serves at the will of the electorate, such a maneuver would have to be politically acceptable

      Good. So you do acknowledge the existence of some practice governing SCOTUS nominations that is 1) allowed by the Constitution, 2) currently beyond the pale, but nevertheless 3) acceptable under certain political circumstance, to be determined by the political branches exercising the will of the electorate.

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    53. (Continued)

      This should be obvious to anyone but I’m glad to see you spell it out because, as I’ve been arguing all along, court-expansion has precisely been one practice that fits those 3 criteria; and the political circumstances brought on by the GOP — through, again, the Gorsuch and Barrett two-step — currently make it acceptable, and indeed warranted. You claim to disagree, but instead of admitting that you have nothing in which to ground that disagreement beyond your own partisan preferences, you resort to obfuscation through insults and flamboyance. Which is to be expected based on your evident maturity level. However, I will note that you (probably unwittingly) tipped your hand as to what you think would count as a sound test to determine political acceptability in this regard. To wit, you write:

      It was obviously not a "heist" to the American People. That's just your panties getting tied in a wad over the People electing Trump over Clinton and retaining a Republican majority in the Senate to boot!

      Ah, ok, so if Joe Biden and the Senate Democrats do prevail next month, and they do pack the Court, and then they win again in 2024 — if that happens, you’re willing to say that Court packing will have been just fine and dandy after all, because then it will have been ratified by the people. And any complaints about it can be dismissed as people “getting their panties in a wad” over an election they lost?

      Great! I say we try it. It should not be a hard case to make, especially if the expansion is offered as a compromise by, namely, agreeing to let the conservative wing keep its majority by adding only 2 new seats, or 3 seats with the 4th to be appointed by the 2024 winner. It’s good to see you finally coming around to what I said previously about putting it in the people’s hands to restore legitimacy to the Court, which is about to be left in tatters following Barrett’s confirmation

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    54. which is obviously snark because of the stupidity of your act.

      Buddy, look where we are. About 140 comments deep in the combox of a modestly known academic cum prolific blogger. The fact that you think you can cite rhetorical inelegancies to score cheap points (because you haven’t been able to score real points) is honestly really sad. You really have no sense of proportion or of what’s important. I know it sounds like just snark, but honestly, I’d be embarrassed for you if I thought any other human were looking in on this.

      You're saying what your mommy tried to warn you to avoid: Two wrongs make a right! No Little Guy, two wrongs don't make a right.

      Well, you see, that’s the kind of thing people with poor impulse control have to continue to believe their entire lives. But you should know, as all mature adults do, that sometimes two “wrongs” do make a right. It is called the regular workings of justice.

      You see, sometimes, when a bad guy does something wrong, we have to inflict some harm on him in order to make things right. Suppose we say that taking away someone’s freedom is generally wrong. Well, ok, but if the bad guy kills your granny, then you have to take away his freedom — in order to prevent him from doing it again, to deter others from doing the same, and to carry out justice. And so, in that case, taking away someone’s freedom isn’t wrong, even though in general we say that it is. And it fact it becomes the *right* thing to do in that circumstance. Honestly it’s a little disconcerting that I have to explain this to someone who is (I presume) a grown man.

      You can't, of course, deny that she said that, so you dredge up what she supposedly said before she died. Maybe she said it, maybe she didn't.

      Ah, so we’re back to this. Honestly, the old hits are starting to lose their magic. Instead of being redundant I’ll let you go back and read my previous response to this. And don’t forget to consider this quote from Senator Lindsey Graham (R, South Carolina), currently chairman of the Senate Judiciary: “If an opening comes in the last year of President Trumps’ term, and the primary process has started, we’ll wait till the next election.”

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    55. Washington Post

      Please. Read the last paragraph of the Post piece. He said they wanted to give it one Pinocchio (meaning mostly true, containing no outright falsehoods) but gave it two instead because the authors of the report Reid cited thought the issue should be discussed with more nuance. The important fact is undisputed. Obama suffered about as much procedural obstruction from the minority party in his first 4 years as had occurred in the prior 40 years. That is evidenced by the cloture votes.

      As for Bush, yes, some Democrats made a push to obstruct some of Bush’s judicial nominees, the Senate under Frist told them to knock it off or they’d go nuclear, and the Democrats backed down. And when they did back down they reaffirmed that the filibuster would only be used for “extraordinary circumstances.” Then the Republicans tried the same thing with Obama, the Senate under Reid told them to knock it off, and that time the Democrats ended up not blinking. The Republicans were trying to prevent Obama from filling any seats on the D.C. Circuit court, not because they objected to particular nominees, but because they didn’t want to see the ideological balance shift. The Democrats then said, sorry, if you don’t win the election you don’t get to determine that. It was that incident — coupled with the aforementioned unprecedented obstruction — that finally led the Democrats to nuke the filibuster for lower-court judicial nominees. It was the proper thing to do. And sure, you can say that the GOP got its revenge by ending the filibuster for SCOTUS nominees in 2017. Tit-for-tat.

      Of course there’s tons more that can be said about this (about, for example, how the legislative filibuster has now become a permanent and automatic veto for the minority), but really it’s all irrelevant, which is why you want to keep harping on it, I’m sure.

      Finally, Saint Anita Hill. Yeah, two FBI agents have "credibility problems" and I guess 9/11 was an inside job too, right?

      If you actually think the notion that a couple of FBI agents would twist the truth is tantamount to a 9/11 conspiracy theory — I don’t know what to say. You must not have ever lived in the world. See what I said above about lacking a sense of proportion, I guess.

      Anyway, per Abramson and Mayer, Hill had said in her testimony that Thomas claimed that if she ever disclosed his behavior it would ruin his career. The FBI then signed out independent affidavits saying that, in Hill’s testimony to them, she had claimed that Thomas said it would ruin her career. However, Hill had already told the judiciary committee in a statement that she said Thomas warned about ruining his career. So why would Hill change her story for the FBI when she had already given a statement to the committee? Similarity, the FBI implied that Hill didn’t disclose details about Long Dong Silver, the Coke can, etc., which was touted as implying that she embellished the story after her FBI interview. However, a Democratic staffer evidently took contemporaneous notes on Hill’s story, prior to the FBI interview, in which those details do disappear.

      As to this stuff about her lying five times, I presume that refers to the incident where Arlen Specter went before the media and accused Hill of committing perjury during her testimony (after she had left the building). Which is stupid because if you correct your testimony you can’t be guilty of perjury. I don’t have the video in front of me, but based on what I’ve read, what happened was that Hill was asked a question that was somewhat confusing, gave a confused answer, then consulted with her attorneys to clarify the matter. This is not perjury. The most charitable interpretation is that it’s a lapse in communication, which happens all the time in legal proceedings and in life. The fact that so few sources (even anti-Hill ones, I just googled it) seem to harp on this leads me to believe it’s a nothingburger.

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    56. Guy,
      "Ah, ok, so if Joe Biden and the Senate Democrats do prevail next month, and they do pack the Court,"
      A Biden/Democratic expansion of the court will be an unpacking of the court, if they do not go too far.

      4/9 is virtually equal to 5/11, both numerically as a fraction and dynamically regarding the impact of a single swing vote.

      A Democratic expansion from 9 to 11 justices would be an unpacking of the court.

      Delete
    57. @Guy, writes:

      This remark says everything about your lack of integrity in this exchange. As you well know, I have not been claiming that the Senate acted unconstitutionally.

      Rather, liars are the ones who lack integrity. HERE you wrote:

      Let me remind you of what the Constitution mandates: a president shall have the power appoint Supreme Court Justices with the “advice and consent” of the Senate. This means that when Obama was elected in 2012, the people vested him with the power to appoint a justice should a vacancy arise. The Senate then had an obligation to *advise* — that is, to conduct hearings and a vote.

      You are thus insisting that the Constitution mandates the Senate to conduct both hearings on a nominee and a vote. It then follows that if the Senate does not perform what it is mandated to perform, it is acting unconstitutionally.

      Moreover, you said HERE:

      Does the blog you linked to prove that “inaction” falls within the scope of the Senate’s powers? No, at least not according to this article. [citation omitted] — which, to my mind, decisively refutes that claim, which has been made by Adam White. The author, Matthew Stephenson, shows that even on an originalist interpretation the claim does not hold water. And furthermore he argues (again, persuasively) that Senate inaction actually *implies* consent.

      In other words, the assertion that Senate inaction with respect to judicial nominees is within the scope of the Senate's prerogatives is "decisively" refuted by the article you cited. Since the claim that Senate inaction is refuted, unproven and does not hold water with respect to the Constitution, it follows that it is unconstitutional. If you cannot remember what you have argued, then perhaps you need a breather.

      The only point I “keep making” is that the practice of “advice and consent” has been fixed by long-standing norms.

      And I have replied in various ways. First, there's a difference between an unmandated convention and an authorized exercise of a departure from convention. Second, convention breaking has occurred all around, especially with respect to judicial confirmations and the Democratic elimination of the filibuster. Third, it is obvious in light of Feser's OP that it cannot be mere convention breaking that is objectionable. Rather, it's the kind of break, as in court packing, that is beyond the pale.

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    58. It’s good to see you finally coming around to what I said previously about putting it in the people’s hands to restore legitimacy to the Court, which is about to be left in tatters following Barrett’s confirmation

      And more of your glaring lack of integrity is showing. You are not only dishonest about what you claimed is the constitutionality of what the Senate did in the Garland affair, you're dishonestly reframing your other argument about norms. You mentioned in an uncited (here) remark that the GOP engaged in a Gorsuch and Barrett "two-step." You called it unconstitutional and a heist. You argued that the GOP stripped Obama of his right to appoint judges and engaged in court packing. You furthermore insisted that the credibility of the court was already in shambles (so it wouldn't hurt to perpetuate it in leftist retaliation). I correctly argued that there was nothing unconstitutional about Senate inaction, there is nothing unconstitutional about Barret's nomination and confirmation, nobody stripped Obama of his right to nominate whomever he chose, and the alleged "heist" and "credibility" issues exist only in the minds of swamp fever leftists whose opinions were not shared by the 2016 Electorate.

      I have also argued that there is nothing illegal about court packing. I will also add that there's nothing illegal about spitting in the wind. It's legal, but it's a stupid idea, the reasons for which have been articulated across the political spectrum.

      The justifications you've offered here for court packing do not hold water. An unsound idea is proposed because “the GOP did something unconstitutional.” Well, no, they didn't do anything unconstitutional. “The GOP engaged in a judicial ‘heist.’" Well, no, nothing was "stolen" at all. The Senate was under no obligation to act on Obama's nomination. “The Senate robbed Obama of his appointment rights.” Well, no, Obama did nominate Garland, and he could have appointed him only if the Senate gave its express approval. It did not (which was its right), so nothing was robbed. “The Senate engaged in court packing.” Well, no, "court packing" as it has been consistently and commonly used, is adding to the existing number of seats on a court in order to change the political outcome of future rulings. This the Senate of course did not do. One has to engage in equivocation to sustain that ridiculous charge. “Moreover, the GOP already trashed the Court's credibility, so continued trashing doesn't matter.” Well, no, the GOP asked the People to settle the matter and the People elected Donald Trump and a GOP-majority Senate. Since nothing conservatives decide on the Court is accepted by liberals, it was already a given that the Court was and always will be discredited in their eyes, so that's merely an empty claim. I guess it's the old throw-everything-against-the-wall-to-see-if-something-sticks routine. Well, nothing here sticks, so your justification for employing an unsound idea doesn't exist.

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    59. Additionally, you've argued that the GOP broke longstanding precedent—precedent so longstanding and consistently adhered to as to establish an expectation. And given that breach of convention, retaliation is called for. So, are the Democrats calling for equal measure or tit-for-tat? Are they arguing that once they get a Senate majority, they will rely on strict majorities for all SCOTUS nominees like the GOP? Are they promising inaction in the event a Republican nominates a judge in an election year? If that were your position, you'd get no argument from me. In fact, as I stated above, I would expect that kind of retaliation. And as I stated above, this is beyond the pale. It is a nuclear bomb replacing a fly swatter. And it is precisely a nuclear bomb for the reasons Ginsberg, Biden and others have articulated in the past. Conceding arguendo that it's all the GOP's fault does not justify a bad idea. Two wrongs don't make a right.

      Now, you pretend that an appeal to the electorate is something that we "try" given my argument. But you cannot appeal to the electorate as I have done because Biden to this point declares that the American people don't even deserve to know what his position is on the issue (of court packing). The GOP directly and specifically appealed to the People to settle the issue in the forthcoming election. Candidate Trump made SCOTUS appointments a major campaign issue, even submitting a list of judges he would consider in the event of a court vacancy. That's not the case here. Biden has submitted no list of ideal nominees and refuses to disclose his position on court packing. People hate Trump because they consider him a white supremacist, a liar, incompetent, a poor representative of the nation, a general bigot, a sexual assailant, and probably criminally culpable in any number of schemes. A vote against Trump will not be seen as a vote against his judicial appointments.

      But you should know, as all mature adults do, that sometimes two “wrongs” do make a right. It is called the regular workings of justice.

      Uh, no. It's always wrong to do wrong. And as you go on to admit, since there is nothing wrong with imprisoning somebody who has legally violated the rights of others, your fatuous "two wrongs do make a right" bears no relevance to your analogy. In order to sustain your two-wrongs-make-a-right thesis, you'd have to say something akin to, "Well, he stole my motorcycle, so I stole his car." No, stealing in the name of justice is still stealing, and robbing in retaliation is always wrong. Surely somebody of your alleged great maturity can see that simple point, no?

      Delete
    60. As to the Washington Post, I read the entire piece, so no need to focus like a laser on one sentence. There were actually three Pinocchios but when the chart was amended to remove the word "block," it was technically less deceptive. It doesn't change the fact that the GOP confirmed 99% of Obama's nominations and that fewer judges were actually blocked under Obama than were blocked under Bush. And it doesn't change the fact that the Democratic argument about filibusters was dishonest.

      Back to Saint Anita. As is typical of ideologues, you twist and turn every fact to make Hill look as pure as the wind driven snow, and at the same time imply that two FBI agents lied in their affidavits for some unstated reason. You ask why Hill would lie about whose career it would ruin, but the two are not mutually exclusive. She most certainly could have said both. An unsubstantiated allegation could, at least in Hill's mind, jeopardize her career for several reasons, one of which is her continued following of and calling Thomas after the alleged harassment. One of the justifications for that behavior is her alleged need to maintain a business relationship because she feared for her career. The veracity of that claim notwithstanding, accepting it at face value clearly indicates why she would allege that both of their careers stood to be jeopardized by her accusations. Even if Thomas himself couldn’t hurt her pocketbook, public disapproval could make current employment unbearable. It does not at all impeach the credibility of the agents who interviewed her.

      At bottom, Americans at the time, with no gender gap, believed Thomas over Hill (58% to 24%). She wasn’t credible then, and only after considerable media massaging and Hollywood propaganda has that perception changed. She was thus NOT the eminently believable witness that you claim. You’re defending the indefensible because, well because, that’s what ideologues do. You have to sustain this fiction that the despicable treatment Bork and Thomas suffered contributed to the bitter divisions we see today. You can point to no comparable treatment of Republicans to Democratic nominees.

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    61. @ Bill

      This conversation has descended into Gish Gallop territory on your end — walls of staccato sentences meant to shore up a fragile ego more so than contribute to the sum total of rationality in the universe . Which is fitting and completely expected. Your fat lady has sung. I will be winding things down.

      However, I do want to focus on the above points, because I am not a liar, and a part of me wants to believe that you really don’t know how slimily disingenuous you’re being, and that having it pointed out to you will perhaps let you reach some sort of realization — if not now, maybe in the future.

      Bottom line: No, I have NOT been claiming that the Senate acted unconstitutionally. Indeed, you yourself acknowledged that I haven’t been.

      To wit, I wrote — in plain English — “The over-arching assumption of this conversation is that long-standing practices are in some sense binding.” This was written many, many paragraphs ago. Note what I did NOT say — I did not say that the over-arching assumption of this conversation is that the Constitution (its plain language) was binding.

      And to this you gave the following response:

      A side discussion we're having is the meaning of Advice and Consent. The fact that the Senate has always voted on a nominee, excepting of course Garland, does not imply that it is constitutionally mandated. That's the only point I'm making in that regard, so we can hopefully shelve that line of argumentation.

      That’s right. Read your words again. By your own admission, the issue you’re now claiming has been central to my argument (namely, the constitutional meaning of “advice and consent) amounted to “a side discussion,” one that was long ago “shelved”.

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    62. @ Bill, note

      In my second paragraph above (1st sentence) the “above points” are these statements from you, which I forgot to include:

      liars lack integrity...You are thus insisting that the Constitution mandates conduct both hearings on a nominee and a vote.

      Delete
    63. @ Bill continued

      So what’s going on here?

      You see, whenever we are dealing with a complex phenomenon, we are confronted with many different components and lines of inquiry. Thus, if we wish to rationally engage the phenomenon, it becomes necessary to zero in on some specific aspect of it while temporarily bracketing (you might say “shelving”) other interesting considerations. Otherwise we will surely discover that our task is becoming unwieldy and overwhelming.

      Many centuries ago, the Greeks coined a brilliant image representing this dynamic. It was a monster called the Hydra. The Hydra had many heads. But for every head you cut off, two more would grow in its place. I trust you grasp the analogy.

      Now in the course of this argument, as the above quote from you attests, you have demonstrated that you understood that we were dealing with an issue separate from whether the Senate acted unconstitutionally (in the sense that they affronted the plain, unambiguous, original meaning of “advice and consent”).

      However, at some point you became frustrated that all your arguments were being rebutted, so then you went looking for a Hydra head to cut off, and thus you re-invoked an issue that was long ago “shelved” (as you said). But when I pointed this out to you, you dishonestly tried to claim that the shelved issue was actually what I was claiming all along.

      And to make that case, you reached back WAY to the beginning of the debate, before the lines of inquiry were firmly established. You even pulled up a quote from a comment I had made to someone else entirely, thinking you could thereby score a cheap point. That comment stated that “the Constitution mandates [...hearings and a vote]” — which somehow you take to directly contradict my statement that i have not been arguing that the Senate acted unconstitutionally.

      Well, it isn’t a contradiction, which you can clearly see if you put the two statements side by side:

      1) The Constitution mandates hearings and a vote

      2) I have not been claiming that the Constitution mandates hearings and a vote.

      Do you see how both (1) and (2) can be affirmed as true by the same person without contradiction? By analogy, I might believe that Trinity is indispensable to Christian faith, but there are instance where I would be justified in saying “I have not been claiming that the Trinity is indispensable to Christian faith” — if, for example, I have just been engaging in an argument about which of the two actresses who played the character Aunt Viv on The Fresh Prince of Bel-Air did a better job.

      So we already had our lesson in Greek mythology. You can use this as a springboard for a lesson in English grammar. Go ahead and google the uses of the past progressive tense.

      Is any of this unclear to you?

      Delete
    64. @ Bill


      Uh, no. It's always wrong to do wrong.

      Since everything else you wrote is just Gish-galloping summations of your previously-stated bad points — and since your latest takes on the Washington Post and Anita Hill stuff are laughably flimsy — this is the final thing I will comment on from your latest screed.

      To that end, I will simply quote from the University of Sussex website: “Quotation marks used in this way are informally called scare quotes. Scare quotes are quotation marks placed around a word or phrase from which you, the writer, wish to distance yourself because you consider that word or phrase to be odd or inappropriate for some reason.”

      Let’s again do a side-by-side comparison

      Two wrongs sometimes make a right.

      Two “wrongs” sometimes make a right.


      The second sentence is the one I wrote. Do you see how it differs in meaning from the first, in light of the above explanation of scare quotes? If in the future you encounter a word enclosed in quotations marks like this, you should realize that the word is not being used in its precise literal sense, and you should expect the author to introduce some nuance or dialectical wrinkle.

      Delete
    65. @Guy, writes:

      That’s right. Read your words again. By your own admission, the issue you’re now claiming has been central to my argument (namely, the constitutional meaning of “advice and consent) amounted to “a side discussion,” one that was long ago “shelved”.

      And liars can't stop lying. In your batten-down-the-hatches, save-my-face-at-all-cost mode, you forget that I simply replied to your avowal that you haven’t argued against the constitutionality of the Senate's treatment of Garland. You wrote:

      As you well know, I have not been claiming that the Senate acted unconstitutionally.

      And as I proved with your own words, you most certainly did:

      Let me remind you of what the Constitution mandates: a president shall have the power appoint Supreme Court Justices with the “advice and consent” of the Senate. This means that when Obama was elected in 2012, the people vested him with the power to appoint a justice should a vacancy arise. The Senate then had an obligation to *advise* — that is, to conduct hearings and a vote.

      You cannot legitimately say that you haven’t argued something when you directly did—at least twice! I never claimed it was your "central" argument, you lying loon. I repeat: If you cannot remember what you've argued, then take a breather. Of course, that won't help when you're in lying mode.

      Now in the course of this argument, as the above quote from you attests, you have demonstrated that you understood that we were dealing with an issue separate from whether the Senate acted unconstitutionally (in the sense that they affronted the plain, unambiguous, original meaning of “advice and consent”).

      And you're pretending that I stated otherwise. I covered all those points in my last rebuttal, Little Guy. In your maniacal groping to dredge up slivers of justification for your going nuclear, you accused the Senate of acting unconstitutionally, heisting, robbing Obama of his rights, packing the court, and trashing the Court's credibility (so more trashing by you wouldn't hurt). You threw everything, including the kitchen sink, at the GOP as a smokescreen to prop up your very weak rationale for going nuclear. I rightly addressed every point YOU made and demonstrated that your charges are FALSE.

      I directly and specifically addressed your bellyaching about convention busting and clearly showed that your swamp fevered mind wasn't suggesting tit-for-tat. You'd rather trash the whole system with your hair on fire, hysterical, Chicken Little shrieks about the alleged GOP outrage which the Public endorsed. You despised the GOP for specifically asking for a public referendum on their acts and you despised it even more when the People agreed with them. You see, left-wing loons like you hate the will of the People, and that's why you have ram your agenda down their throats through the courts. And now that you can no longer depend on the SCOTUS to do your bidding, your freak out because you’re terrified that the People will actually govern instead of being subject to judicial autocrats.

      Delete
    66. Now that your argument is stripped of its veneer, you do a 180 and claim that this election too can be a referendum on court packing when you know good and well it's nothing of the kind. Biden says nothing on the topic and says that the People, whom you claim may certify your non-proposal (because it's not on the table), don't even deserve to know what his stance is.

      And it shouldn't surprise anybody that you attempt to pass your two "wrongs" snake oil as justification for the clear logical misstep you made. You do so because liberals reflexively lie when they have their backsides handed to them. You were replying to MY statement that two wrongs don't make a right. I don't have scare quotes around the word "wrongs," so I'm not using the word equivocally. Your "rebuttal" that an act which isn't really wrong can be classified as a "wrong" in a particular sense has nothing to do with my assertion because that's not what I said. Since there is nothing at all wrong with imprisoning or fining somebody for breaking the law, your "rebuttal" fails for want of relevance. If the GOP's perfectly legal act is wrong because it breaks longstanding norms, then to retaliate with a perfectly legal act that destroys the credibility of a branch of government is even more wrong. The latter is not justified by the former because TWO WRONGS DON’T MAKE A RIGHT. It is substantively no different than justifying the theft of your neighbor's car because he stole your bicycle. More to the point, you're the Antifa who thinks that looting and destroying your neighbor's business is justified because of systemic racism. You don't care who's harmed because your urge to "get even" is greater than your regard for the welfare of others. You'd rather trash the Court just so you can say that you stuck it to the GOP than to abide a temporary setback and reinforce the integrity of a court by living the model you want everybody else to abide by. Grow up, baby.

      You don't care about the Constitution, you don't care about the will of the People, you don't care about the presumption of innocence, and you don't care about the Republic. All you care about is your political agenda, as your "argumentation" here clearly demonstrates.

      I will be winding things down.

      One can only hope, since you're offering nothing but piles of a commodity found in abundance where bulls congregate.

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    67. I don’t know if you’re still following this ridiculous mess, but I hope you took yesterday off to come down from your hysterical lather. Truly, you sound completely unhinged.

      I guess you didn’t take my advice to look up the progressive tense. Which is fine. But the point remains. The fact is, you don’t know how i might try to justify the claim that the Senate acted unconstitutionally in the Garland affair. Perhaps I think that the evidence from the 18th-century Massachusetts legislature is unconvincing, and so even on originalist grounds we must look to the original norms that were established. Perhaps I think the penumbra of the Constitution makes it so. Perhaps I think the ghost of RBG told me as much. You have no idea, because, once again, that is not the point I have been arguing. (There’s that tense again — you would save yourself so much confusion and needless rage if you just spent a few minutes to look it up.) So for you to say that I “keep making” statements that are grounded in that claim, and that I’ve been working myself into “a frenzy” over it, is completely disingenuous. Again, you’re only saying it because it’s the argument you wish we had been having.

      For the umpeenth time, the only claim I kept making in this exchange was that, even if we shelve the constitutional question and focus only on norms, your side cannot slice the issue in such a way as to make a compelling case for why the two sorts of norm-breaking differ in kind — why a rational person should be compelled to accept one but not the other, or not to see how one counts as legitimate retaliation for the other. I stand by that claim. Go ahead and walk away disagreeing.

      you do a 180 and claim that this election too can be a referendum on court packing when you know good and well it's nothing of the kind.

      You see. You’re so hot with rage that you fail to see how even your individual sentences are incoherent. Do I say that the election can be a referendum on that issue? Yes, of course it can be — if Biden comes out and says it is. Do I think it currently is? Well, no, but the two claims are not in tension. It is possible that X is not currently the case, but that does not imply that X can’t be the case in the future. Anyway, whatever Biden does is not at issue. This exchange has always been about my preferences and about the general principle. You should know that.

      It is substantively no different than justifying the theft of your neighbor's car because he stole your bicycle. More to the point, you're the Antifa who thinks that looting and destroying your neighbor's business is justified because of systemic racism. You don't care who's harmed because your urge to "get even"

      This is just lame. As you know, stealing someone’s property in retaliation for them stealing you property is wrong because it is illegal — and committing illegal acts is wrong. Of course, people who do steal in retaliation for being robbed are acting under some rudimentary principle of justice, which is that the victim of some wrong act is entitled to equal compensation. Recognizing this principle, every legal system throughout history has allowed from some type of lawfully sanctioned tit-for-tat.

      Now when it comes to the issue we’ve been discussing, the matter is complicated only because we are dealing with the very pinnacle of law — with the ultimate body that is charged with making laws. But it seems to me this makes the issue somewhat clearer. There are no legal constraints whatsoever on a president and Senate who want to add to the Court. So if they do decide to take that action as redress for what McConnell did, then the action is ipso facto legitimate. After all, one surely wouldn’t say that adding to the Court is per se a wrong thing to do.

      And BTW the use of scare quotes in that manner can be a pedagogical tool to help along people who are too immature to understand certain elementary lessons, or who willfully refuse to.

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    68. @Guy, writes:

      I guess you didn’t take my advice to look up the progressive tense. Which is fine. But the point remains. The fact is, you don’t know how i might try to justify the claim that the Senate acted unconstitutionally in the Garland affair.

      You just pump one lie after another, don't you? You're "winding things down" (quotation marks, not scare quotes), but when it's plain for all the world to see that you're a liar, you feel this need to defend your shot honor. If it's so plain that you've told the truth, you'd have dropped the whole thing a long time ago. The truth is, you've had your backside handed to you, and your swamp fever leftist pride won't let it go.

      As you well know, I have not been claiming that the Senate acted unconstitutionally.

      When you at least twice claim that the Senate acted unconstitutionally (I have not read all your comments throughout this thread), then you indeed have been claiming that. That's not the only thing you've been claiming and it's not the main thing that you're claiming, but nobody said it was. You said you didn't do what you did. Charity might give you a pass by attributing it to your memory neurons misfiring, but the fact that you're doubling down proves your dishonesty.

      So for you to say that I “keep making” statements that are grounded in that claim, and that I’ve been working myself into “a frenzy” over it, is completely disingenuous."

      And in your crazed attempt to score a gotcha over your blatant lie, you further show your inability to comprehend English (I suggest Google Translate). Your claims very clearly state that you believe the Senate acted unconstitutionally, and if you really believe that, then it follows that the Senate "heisted" nominees that belonged to Obama and "robbed" him of his prerogatives as President. That's what's worked you into a frenzy, and that's what justifies, in your mind, your hissy fit, As I clearly stated:

      "The justifications you've offered here for court packing do not hold water. An unsound idea is proposed because 'the GOP did something unconstitutional.' Well, no, they didn't do anything unconstitutional. 'The GOP engaged in a judicial ‘heist.’' Well, no, nothing was 'stolen' at all. The Senate was under no obligation to act on Obama's nomination. 'The Senate robbed Obama of his appointment rights.' Well, no, Obama did nominate Garland, and he could have appointed him only if the Senate gave its express approval. It did not (which was its right), so nothing was robbed. 'The Senate engaged in court packing.' Well, no, 'court packing' as it has been consistently and commonly used, is adding to the existing number of seats on a court in order to change the political outcome of future rulings. This the Senate of course did not do. One has to engage in equivocation to sustain that ridiculous charge. 'Moreover, the GOP already trashed the Court's credibility, so continued trashing doesn't matter.' Well, no, the GOP asked the People to settle the matter and the People elected Donald Trump and a GOP-majority Senate. Since nothing conservatives decide on the Court is accepted by liberals, it was already a given that the Court was and always will be discredited in their eyes, so that's merely an empty claim. I guess it's the old throw-everything-against-the-wall-to-see-if-something-sticks routine. Well, nothing here sticks, so your justification for employing an unsound idea doesn't exist."

      Delete
    69. So, yes, I most certainly believe that your conviction that the Senate acted unconstitutionally fuels your angst and works you into the frenzy (a perpetual state for most liberals) you find yourself in. That you've crafted a different argument in response to Feser I have clearly acknowledged and addressed. The Senate broke longstanding precedent which deprived the opposing party of what it was entitled under precedent, but since any majority party has the prerogative of ignoring nominees, all the deranged foaming at the mouth over court packing and robbing Obama of his rights is sour grapes masquerading as principle.

      Do I say that the election can be a referendum on that issue? Yes, of course it can be — if Biden comes out and says it is. Do I think it currently is? Well, no, but the two claims are not in tension. It is possible that X is not currently the case, but that does not imply that X can’t be the case in the future.

      Well, of course it's currently NOT the case, and this close to the election, it's not going to be the case, even if, upon Barrett's confirmation, Biden jumps out and cheerleads court packing. But of course that's not the point. You referred to the Senate's treatment of Garland as a heist, and I correctly replied that the People certainly didn't think it was, and the GOP made it no secret that they wanted the People to decide the matter. Thus, stripped of your "heist" argument, you twisted to counter that if the Democrats win the Senate and the presidency, that too could be deemed a mandate of sorts that court packing has been endorsed. That's of course wrong on all counts. If it's a referendum, you can't say it's a "heist." Thus, the pejorative is just another example of your hysteria. But it doesn't work the other way because neither Biden nor Harris have proposed it. You know, the American People don't deserve to know his stance on that. And if it's just your private argument, it's only because it's a tactic meant to deflect the force of the counter that the "heist" occurred in nobody's minds but those of swamp fever leftists.

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    70. As you know, stealing someone’s property in retaliation for them stealing you property is wrong because it is illegal — and committing illegal acts is wrong.

      Man alive, you're a dolt. Wrong doesn't have to be illegal. There are all kinds of things that are morally wrong but perfectly legal to do. Congress exempting itself from the laws it imposes on the rest of the country is morally wrong, but it's legal. Do you really need me to spell this out for you? Stealing a car because somebody stole your bike is morally wrong even if it were legal to do so. There are many crimes for which there is no corresponding compensation (e.g. a drunk driver killing your little girl). If it were legal to kill his daughter in return, is that morally acceptable? In Texas, you can literally kill another human being for stealing your property. Is that morally acceptable? You're stealing my bicycle, so I can blow your head off?

      And you clearly put your fingers in your mouth when you typed that clap-trap about "scare quotes" around the word wrong. Your entire point is irrelevant to what I was saying. A morally wrong but legal act and is not rectified by a morally wrong but legal act. TWO WRONGS DON'T MAKE A RIGHT. You must has skipped Logic 101. There are some decent online courses you can take.

      I will be winding things down.

      Doesn't look like it. I guess that was another lie.

      Delete
  12. Tennenbaum,

    That tension arises with anyone that has principles. Democracy can result in democratic slavery. It can result in democratic infantacide. Democracy could bring about a dictatorship it would just need a vote. It can result in a democratic decision that there are no inaliable rights. As well as any number of things. Also if democracy is the highest thing then unless polls from 1820 indicate that a majority was anti slavery then slavery was ok? If you say that politics must be representative/democratic then you are in a way against democracy/representative government as your saying that democracy can't vote it away. If majority will is your absolute they you must drop all political and moral notions and advise by the will of the people in all things. That would be your sole principle it has all the problems of DCT without any of the stability.

    In short it butts heads or has the potential to do so with anyone who has any no negotiable standards. Especially in regards to the rights of those who cannot vote. It is very easy for the people that can vote to decide you can kill your 2 year old. They just have to decide they want it they don't even have to have a principle because it's not about what's right but about what you want.

    Also as the other poster mention what does morally at odds mean when one side says all is subjective. While the other says there is objective truth to morality. If I say one plus on equals 2 or the earth is round I way be incorrect but saying I'm at odds with majority opinion is pointless. Also if you really accept that the majority should decide don't consult reason or your mind consult polling data for your moral views.

    You could be racially slavery was pretty bad oh wait I'm not sure what everyone else thinks let me go get that trusty polling data.

    Slight correction their wills are against you. Objective values cannot be at odds. It would be like a scientist saying I told my 8 year old the earth is round but he said no there are no objective scientific facts also since my sisters agree with me we are scientifically at odds with you. This is a lighthearted example but it gets to the point. If you think the goal of human life is liberty for all humans and that all humans have a right to not be enslaved if *the people* disagree. Then you are at odds with them. If *the people* institute slavery and white supremacy or if they would have if the goverment was more in the model you prefer. Not you can't say it's tru ewithout apealing above and beyond politics. But I disagree if they have a model such as that if you say it's wrong your making a higher apeal and your fundamentally at odds with *the people.* was not the civil rights movement then agaisnt *the people* even if black could vote that wouldn't have been enough. When you make moral arguments do you furnish polling data and leave it at that you couldn't be a conservative progressive with your position. If you try to conserve the environment but *the people* don't want to. Then what do you say if you tell the people what you should do your apealing to an authority above *the people.* If your progressive then you have a goal to get society too do you abandon his goal unless *the people* agree.


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    1. Unknown,

      You make some good points that get into the very heady area of high moral theory.

      Let me just respond by saying that the point of my response to Feser was to point out his hypocrisy. He writes as if the Democratic Party is unique in calling for a subversion of the norms that have governed SCOTUS appointments, but of course they aren’t. Feser seems just fine with bulldozing norms (or with calls for bllldozing them — a la Cruz and Grassley) when the outcome is one he prefers. So for him to turn around now and say that he is opposing the Democrats on principle is preposterous.

      Now, as for the other stuff, all I’ll say is that my point was intended as a rather specific one. Traditionally, the Church looked on liberal democracy with skepticism. And I perceive that skepticism to persist in very conservative Catholics like Feser, despite the fact that Feser never seems to openly air his reservations about liberal democracy as a whole —no, the problem for him seems always to be the iniquity of the Democratic Party or the Left.

      You are right, of course, that anyone who would claim to have some non-negotiable moral standards could *potentially* butt heads with liberal forms of government. But here, liberals tend to appeal to history. They look to the great liberal democracies that have existed for the past 200 years — Great Britain, France, The U.S., Scandinavia — and point out that these are the best societies that have been devised so far. They are the most open, the most tolerant, the most prosperous, the happiest. Yes, they have had histories that are full of horrors (slavery, Jim Crow, etc.) but they have been able to institute reforms from within and remain intact. Hence the argument is “Hey, it’s working so far, so let’s keep it going.”

      By contrast, very conservative people tend not to like the tolerant direction that liberal democracies have moved in. So the task of critiquing liberalism lies with them, not so much with people who openly proclaim their commitment to liberalism.

      Delete
  13. Balanced Tryte,

    A minor point you are railing against the system they made. Also is what matters what they wanted or what the people wanted. Did they hollier than thou like as you say impose what they wanted on the people? Wouldn't it matter on your argument what the people wanted not the Founders? So why do you apeal to what they wanted?

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  14. Stardust,

    "Ok, two can play that game, which is why the Democrats expanding the court in response to Republican Merrick Garland/Amy Barrett actions is entirely justified"

    In other places you say all values are subjective yet you apeal to justice. It adds nothing to what I like/want to label it Just. Are you not apealing to an objective standard of behavior in saying Just yet you say no such thing exists. One can figure out what harms a certain creature by reason (as a tool) but unless reason is a misaive from a master that's were it stops. Likewise here. You clearly want certian political ends. You make arguments as to why the means you propose are Just. Your saying that human behavior needs to be justified and yet you sate a position elsewhere discordant with that. If everything is subjective values then why would anyone have to justify anything. You may value a cold beer or a paved back lane you may also value healthcare. If they are all based on your subjective will if I can decline doing anything to help you obtain the former 2 values why can I not decline the 3rd. If I can't decline any of your values then I would suggest your an autodeist not an atheist. If I have an obligation to help you get healthcare where does this come from? Why not make your argument less burdened by inaccurate terms and simply say I want x.

    If you apeal to reason that I have moral obligations not just pragmatic considerations towards your wants. Then reson turns out not to me a tool but a master or a missive from a master. If all is subjective values so too then is the use of reason one can use it as one sees for in accordance with ones will.

    You seem to be asserting an objective principle in claiming that x is justified. How do you explain the apparent contradiction with your earlier statements.

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  15. Some memories seem short here.

    Was it not the Democrats who sallied scurrilous calumnies of gang-rape and sexual assault against Brett Kavanaugh to hamstring his confirmation on the nation's highest court?

    Wasn't the same sort of tactic used with Clarence Thomas earlier?

    Wasn't Robert Bork not confirmed thanks to the democratic norm-breaking by a certain Joseph Robbinette Biden?

    Correct me if I'm wrong, but wasn't the Supreme Court supposed to be an apolitical institution? That's why the justices are supposed to serve for life, generally speaking. And yet, the appointment of justices, as well as the court's composition, has become a major campaign point for both parties.

    Why is that? Well, one particular party has a norm-breaking, Constitution-defying tendency to use the Court as a means of making policy and law often with a stamp of moral imprimatur ever since Brown v. Board of Education. Nevermind that this maneuver has taken the larger debates on various issues that ought to occur at local levels of state legislatures, or even the House or Senate, to inside courtrooms filled with unelected, often partisan lawyers. Nevermind that rulings of judges have overturned democratically-decided referenda. Disregard that both trends that both trends are decidedly undemocratic.

    Our resident dweller underneath the bridge talks of a bare majority restoring "Constitutional balance" for the sake of democratic fairness. Methinks it more has to do with anxiety about not having the unilateral means to socially engineer that too many in this country believe to be enlightened progress. Confronted with that horrifying reality, he decries a time-honored system and demands its overhaul. Ironically, it seems he can't face the implication that he might have to entreat with those backward "farmers" with disproportionate influence in national elections instead of merely going to blogs he knows are full of people who disagree with him to smugly and anonymously antagonize them.

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    1. Here is an example to prove your point about how the Democrat Party changed the US Supreme Court to be method of achieving their policy goals.

      Frontiero v Richardson 1973
      was a landmark United States Supreme Court case which decided that benefits given by the United States military to the family of service members cannot be given out differently because of sex.

      From a second hand source who worked for a high ranking US Rep from Massachusetts that later became Speaker of the House. The Democratic caucus in 1972 proposed legislation that would have solved this court case, but an attorney, Ruth Ginsburg, asked them not to pass the legislation because they wanted the SCOTUS precedent. You may ask if this bill would have become law the answer is undoubtedly yes. This was the same House and Senate that passed the Equal Rights Amendment, and President Nixon proudly proclaimed his support for the amendment.

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    2. @Anonymous

      Yes, similar tactics were used in Griswold. The contraception law wasn't being enforced, so they had to manufacture a "harm" in order to get it in the courts. Overturning the will of the People is the Left's specialty.

      Delete
  16. I also wish that Biden and Harris would say, “No, we won’t pack the courts.” The idea is moronic. The objections are definitive. Biden himself has stated them as well as anyone. Whether he’s since forgotten or rejected them, I don’t know, but it’s awful.

    That said, this post is dead wrong. Packing the courts may be asinine, but it is constitutional. Trump on the other hand has plausibly violated the emoluments clause, obstructed justice, and infringed freedom of the press by threatening to use his office to punish news outlets. He also recently told voters to send in two ballots (a federal crime). Good grief, I could go on for quite some time listing the manifold ways he’s broken or disregarded our constitution and laws. So it’s simple foolishness to pretend that Joe Biden is equally debased, just because he won’t refuse to do something which our system of government allows anyway.

    In other words, you’re comparing a man who refuses to say “I won’t ever get drunk” with a man who’s spent four years downing 40s on the freeway. Have some perspective.

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    1. Agree on all counts Mr. Anonymous

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    2. Anonymous, you write that "...this post is dead wrong. Packing the courts may be asinine, but it is constitutional."

      I don't believe Ed ever argued that court-packing is unconstitutional. Rather, he claimed that it violates democratic norms. And he is right about that. Though, in principle, a political party could pack the court, such action would alter the country's political institutions to serve its own political advantage. The effect of this infraction has further constitutional implications which many proponents of court-packing have failed to tease out.

      When one politicizes the courts in this manner, it threatens to de-legitimize the judiciary as an institution because it would give the appearance--to any reasonable observer--that a potentially infinite number of judges could be added to the bench who would vote the way the party in power wants them to. This, in turn, would imperil the idea that the judiciary is an independent institution. And judicial independence is a constitutional norm prescribed by the American Constitution.

      Delete
    3. Aquino77, you missed the point. A president who does something our system of government disallows threatens norms more than a president who does something our system of government allows. Trump has done the former; Biden is at worst contemplating the latter.

      So no, Ed did not argue that court packing is unconstitutional. Nor did I say he did; I just said his point is obviously wrong.

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    4. This comment has been removed by the author.

      Delete
    5. False. Trump hasn't violated the Constitution in the ways you claim he has. But even supposing that you were correct that Trump did commit such violations, Biden's threat to the democratic norm of judicial independence is far more dangerous than anything you accuse Trump of. Politicians are rightly criticized when they fail to clarify their positions in order to have it both ways with the electorate. Joe Biden's intentional evasion of the question has rightly earned the opprobrium of his detractors.

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    6. Good Lord. Before you even showed up I called court packing “moronic” and Biden’s evasion of the issue “awful.” So you can save your breath and stop pressing a point that I made first.

      As to the other issue, go ahead and insist that court packing is worse than Trump’s abuses of power and obstruction of justice. But you’ve not given a reason to believe the preposterous claim, and unless you move in a circle of blind dunces, nobody should take you seriously.

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    7. @Aquino77

      Right. As Feser notes in the OP, cries that Trump is a dictator, therefore let's vote him out, are clear examples of cognitive dissonance.

      Delete
  17. The FBI has stated white supremacists are our greatest threat. As for the Supreme Court 9 is not a fixed number.Nor is life tenure. That is up to Congress to decide.

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    1. First, what's your source on that FBI claim? Second, even if they did claim that I would severely doubt their reasoning. The recent rioting, lawlessness, burning down of buildings, and attacks on police officers have all come from left-wing radicals, not white supremacists. White supremacism is an extreme fringe position in the US and has almost no power, unless you have a very broad and flexible definition of "white supremacism" that goes far beyond "people who think whites are the superior race".

      Delete
    2. The FBI also used knowingly fake and absurd information to get FISA warrants.

      Delete
  18. What Democrats fail to understand amidst their threats to pack the court is that Republicans can do the exact same thing when they regain power.

    SCOTUS rulings only have power if people choose to follow them.

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    1. Neophyte
      "What Democrats fail to understand amidst their threats to pack the court is that Republicans can do the exact same thing when they regain power."
      Republicans already have packed the court, all the nonsensical rationalizations presented here above notwithstanding.

      Packing a jury, committee, panel, or court is dishonestly, hypocritically, corruptly, or illegally installing members in a fixed size group. Everybody knows that but Republicans tend to be very dishonest people so they come up with a great many half-baked nonsense excuses to try to deny the obvious fact that Republicans already packed the Supreme Court as well as the lower courts.

      In the event that the Democrats take power they must expand the court to redress this gross injustice already perpetrated by the Republicans.

      Once we right the horribly deceitful wrong already perpetrated by the Republicans we can return to regular order.

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    2. Bill,
      “The dirt the Democrats dumped on Bork and Thomas detonated a bitter legacy that remains to this day.”
      The Democratic legacy does not remain today.

      The Democratic legacy is to give a Republican president’s nominee a vote, and if that vote is negative to then give the second nominee of the Republican president a vote, which normally resulted in the Republican president seating a Republican nominee on the Supreme Court.

      McConnell destroyed the Democratic legacy and democratic norms by refusing to do what Democrats had normally done, give the nominee a floor vote, and if that was negative give the next nominee a floor vote until the Republican president was able to seat a justice.

      Dr. Feser does not even mention Merrick Garland in the OP, even though that Republican breaking of democratic norms is so obviously a case of Republican court packing.

      Dr. Feser, I challenge you to make a follow up post, as you sometimes do. This time include the fact that McConnell broke democratic norms by refusing to do what Democrats and Republicans alike have normally done, bring a nominee to the floor for a vote, such that a second nominee will also be brought to the floor for a vote should the first nominee be voted down.

      I further challenge you to analyze terminology, as you sometimes do, and juxtapose the term “jury packing” with “court packing” to detail, if you can, why what McConnell did somehow is not a case of court packing.

      Delete
  19. This comment has been removed by the author.

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  20. Packing and Unpacking the Court
    By Michael S. Kochin

    July 28, 2018

    In response to President Trump being called upon, once again, to exercise his constitutional power to fill a seat on the Supreme Court, Democrats broke the outrage meter. University of Baltimore Law School teacher Garrett Epps wrote at The Atlantic that “on the day the Democrats hold power to alter the makeup of the court by bare-knuckle means, they will do it. And they should.” “‘Eleven Justices,” writes the Huffington Post’s Zach Carter, “is the next ‘Abolish ICE.’”

    After all, as journalist Michael Hiltzik tells us, “The fact of the matter is that the current court already is packed.” Senate Majority Leader Mitch McConnell (R-Ky.) and his fellow Republicans refused to hold hearings on President Obama’s nominee, Judge Merrick Garland, to fill the vacancy left by Antonin Scalia. The Senate “unpacked” the court—it held the court to eight members until after the 2016 presidential election, whereupon President Trump chose the young but white-haired conservative Neil Gorsuch to replace the deceased conservative Scalia.

    Some of our conservative friends, such as John Yoo and Robert Delahunty, writing in a once-influential conservative fortnightly, think the Democrats’ current craze for court-packing is “foolish.” Indeed, in the run up to the 2018 midterms, with the Democrats out of power in Congress and the White House, it is electorally foolish. The liberal but cool-headed dean of UC Berkeley’s Law School, Erwin Chemerinsky, has explained why: “Progressives should be very careful about suggesting this might happen. Exit polls from the 2016 election indicated that the Supreme Court was the most important consideration for Trump voters, but not for Clinton voters . . . If they perceive Democrats might try and take the Court by changing its size, it will provide a strong appeal to conservative voters.”

    But a little political science can help us distinguish between foolish and sensible occasions to pack the court. Empirical studies of the justices’ rulings shows that they are generally careful never to place the court as whole to the right or the left of both the president and Congress. This literature is much more coy about the explanation for this “moderation”: the president and Congress, if they are willing to act together, can make the Supreme Court they want....

    But if not, and if in 2017 and 2018 the liberal majority had sought to thwart key elements of a program that a Republican president had managed to push through Congress, court-packing—actual or threatened—would have been a wise response to restore constitutional democracy.



    Surely Yoo and Delahunty are correct that it is better for the justices to restrain themselves and leave vital matters on which the text of the Constitution is silent to the elected branches, the states, or the people. It would be even nicer if we could all go back to the pre-Bork rule where clearly qualified men and women were confirmed for judgeships higher and lower without inquiry into every jot and tittle of their views. But failing a niceness revolution, constitutional officers must always be ready to use their full constitutional powers to realize their constitutional agendas.

    Israel and India have genuinely independent judiciaries, where the Supreme Court is entirely (India) or largely (Israel) selected independent of the elected branches. America’s Founders were wiser, and left the responsible politicians to check the “least dangerous branch”—and defang it, when necessary, through packing and unpacking.

    https://amgreatness.com/2018/07/28/packing-and-unpacking-the-court/?fbclid=IwAR3CDKpb0x3waXUurKApr-2_dDgLGafWvMe0Mg6xdyGDZBK_JltcWJX3Fx4

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  21. The GOP has been hijacked and beaten into submission by the filth perpetrated under the rubric of Trumpism. The Republican Party has mutated into a snivelling caricature of its once pre-eminent and distinguished former self. The ubiquity of its Stockholm Syndromic character is but a parody of telling proportion. History shows us Trump's evil knows no bounds.
    I'm sad to have witnessed, from the outside, the besmirching of American grace, honour and integrity by this man and his enablers.
    I don't think there is any way or path to recovery of the Republican Party as a true home for decent, ethical and moral conservatives. Political conservatives, those that value truth, honesty and integrity, as do the founders of the Lincoln Project and the myriad of conservative groups who want their party back, I think, will be unable to resurrect a party so infected with Trumpism, and will ineluctably move to cremating the GOP.
    So sad.

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    1. Nice try. Too bad your fake dismay over a fake narrative about the GOP's fall from grace as "a true home for decent ethical, and moral conservatives" is negated by real attempts to trace the political trajectories of the US's two principal parties. Findings from the Manifesto Project, which the NYT, no less, has documented shows the Republican party retaining its mean-level ebb and flow leanings, whereas post-2008 the Democrat party not only dramatically shifts leftward from its mean-level trends, by 2014 it actually crosses the *world's* median divide into an embrace of global leftism. The GOP went nowhere. So concerning actual party policy shifting relative to actual trends, if any party has gone off the rails into uncharted territory,
      it's the Democrat party. Anyway, I feel uncomfortably close to having already violated the biblical principle about swine and the casting of pearls. It's sufficient that your pseudo-disappointment has been called out as the transparently fraudulent narrative that it is, why ever it is.

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    2. I wish that your commentary were true, Dane Parker. Like so much of the Trumpian world, you commentary is little more than dated scuttlebutt. The latest opinion piece from Project Manifesto notes this: "The Republican Party leans much farther right than most traditional conservative parties in Western Europe and Canada, according to an analysis of their election manifestos. It is more extreme than Britain’s Independence Party and France’s National Rally (formerly the National Front), which some consider far-right populist parties. The Democratic Party, in contrast, is positioned closer to mainstream liberal parties."

      There is one take-away from your comment: "The GOP went nowhere." Indeed. The metastatic nature of the Trump canker has neutered the Republican body politic.
      So sad.
      By the way, the article I refer is:
      'What Happened to America’s
      Political Center of Gravity?
      By Sahil Chinoy
      JUNE 26, 2019




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    3. @Dane Parker

      Of course you're correct. The Democratic party has lurched to the left dramatically, whereas conservativism has remained relatively stable. Our stance on social issues has been the same, and even in that arena we are but calling for the states to decide certain hot-button issues, not Congress or the Supreme Court.

      The neo/paleo conservative divide has been around for some time now, but traditional conservatives have always been opposed to global entanglements and have affirmed the free market.

      Leftists never stop revising history.

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  22. I think these critiques don’t go far enough to get to the root of the problem. The fundamental problem isn’t that Vice President Biden would “violate democratic norms” by packing the courts, the problem is that he will pack them with judges that will continue to enforce the abortion holocaust, the destruction of families and proper sexual mores, and the general unnecessary, inefficient, unintended-consequences-rich increase of federal power in violation of and in conflict with subsidiarity authorities. And to be honest, I think focusing the critique on structural changes is a distraction from this point that I think many here actually agree with.

    With a holocaust with much greater scope and gravity than Hitler’s, one that has been enforced by the U. S. Government for ~40+ years, maybe the structure needs to change. Put it this way, if packing the court would keep the U. S. Government from oppressing state and local governments from banning and prosecuting at least those who provide abortions, I would be much more ambivalent about using it as an option.

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    1. Lucretius,
      "prosecuting at least those who provide abortions,"
      At least those...so that means you would favor prosecuting all those involved in an abortion, the mother, anybody who arranged or or paid for the abortion, the provider of the facility, and the abortionist, correct?

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    2. Justice would be fully and properly served only when those who formally participate in an abortion are punished as accomplices or accessories to murder. Those who materially participate may or may not be morally and/or criminally liable, depending on the circumstances.

      And to make what I’m saying as clear as possible, a mother who seek an abortion is nothing less than an accomplice to the murder, and would be justly punished as such, even though I think the primary focus, as a practical matter, should be on the facilities and the ones who actually perform abortions.

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    3. Lucretius,
      On the premise that a particular abortion is a murder, a first degree homicide, then your position is entirely logical.

      However, I have not yet read from your writing a definition of the word "abortion", specifically, medically, scientifically, with full consideration for the specific details that are well known in the biological development from a fertilized egg to a new born baby.

      Is your definition of "abortion" dependent on mere speculation from religions imagination?

      Do you conflate general plans for a future human life with an actual present moment human life?

      How do you differentiate, clearly, specifically, rationally, between a mere collection of living cells as opposed to a living human being?

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  23. How do you differentiate, clearly, specifically, rationally, between a mere collection of living cells as opposed to a living human being?

    A more accurate question is, when is a collection of living cells a living human organism? Because the answer to that question is remarkably unambiguous, so much so that the pro-abortion crowd has to intentionally obfuscate in order to appear rational.

    The more practical question that does have shades of gray, unlike the simple question of when a human life biologically begins, is when does a living human have enough value for legal protection?

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    1. Kevin,
      "A more accurate question is, when is a collection of living cells a living human organism? "
      No, the assertion of a "human organism" is irrelevant to abortion.

      A brain dead former person on life support is a living organism and human as is a zygote. Like a zygote, without life support that organism will die. Like a zygote, that living organism is not a living human being.

      Republican Court Packing has already placed rational consideration of this major issue at risk of being overwhelmed by your sort of religiously biased nonsense.

      Democrats should unpack the Supreme Court, already packed by the Republicans.

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