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Ynglaur posted:I know this was semi-off topic, but thanks for posting it. Breyers was my favorite ice cream for years, but I went for about a decade-and-a-half without it, had some the other day and went WTF this tastes like Hood. This explains it.
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Jan 26, 2022 23:39
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Pants Donkey posted:Thomas is 73 and Alito is 71; Scalia died in his late 70s so 30+ years might be a bit overstating it. The court was always politicized. The saving grace here might be that the judges are so egotistical and insulated that they don't care even if people are putting pressure on them, like RBG
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Jan 27, 2022 00:14
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Bill Kristol made a tweet saying that Harris would be SC nominee so that Biden can appoint Romney and they would be a unity ticket. loving galaxy brain right there. I do not know if Manchin or Sinema step out against a nominee. Like someone said, they have already have a SC that reflects their own lovely ideology. But, this will be a very public moment so I could definitely see either of the two (Sinema especially) do it for show. Chaos moment: One of them announces that they are switching parties because McConnell bribed them with a worry free primary and a sweet sweet chair seat.
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Jan 27, 2022 00:39
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McConnell can't bribe either one with a worry free primary, because central party control isn't even remotely that strong. Both Arizona and West Virginia would see a centrist Republican primaried successfully by "actually we should turn immigrants into Soylent Green" and the villain from Ferngully, respectively.
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Jan 27, 2022 00:42
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Bizarro Kanyon posted:Bill Kristol made a tweet saying that Harris would be SC nominee so that Biden can appoint Romney and they would be a unity ticket. I was worried for that 5 minutes when he was saying accurate stuff about Trump that somehow he wasn't one of the Wrongest Dudes Ever but he's back in fine form
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Jan 27, 2022 00:59
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 Opinion! This one slipped my notice, but it’s a criminal case where the defendant won, which is surprising. Thomas was the lone dissenter, which is less so. I'll get to the other from Monday eventually.HEMPHILL v. NEW YORK TLDR: Hemphill put on testimony that police got 9mm (stray bullet size) ammo from a different person’s apartment to point to them as the shooter. That guy was out of the US, but the prosecution was allowed to bring in parts of that guy’s plea testimony pleading to having a .357 (i.e., not a 9mm) firearm. The prosecution should not have been allowed to do that, since Hemphill couldn’t confront that guy. Holding / Majority Opinion (Sotomayor) In 2006, a stray 9-millimeter bullet killed a 2-year-old child in the Bronx. The State charged Nicholas Morris with the murder, but after trial commenced, it offered him a plea deal for a lesser charge. The State specifically required Morris to admit to a new charge of possession of a .357-magnum revolver, not the 9-millimeter handgun originally charged in the indictment and used in the killing. Years later, the State prosecuted petitioner Darrell Hemphill for the same murder. At his trial, Hemphill blamed Morris, and he elicited undisputed testimony from a prosecution witness that police had recovered 9-millimeter ammunition from Morris’ nightstand. Morris was outside the United States and not available to testify. The trial court allowed the State to introduce parts of the transcript of Morris’ plea allocution as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that Hemphill’s arguments and evidence had “open[ed] the door” to the introduction of these testimonial out-of-court statements, not subjected to cross-examination, because they were “‘reasonably necessary’” to “‘correct’” the “‘misleading impression’” Hemphill had created. The question is whether the admission of the plea allocution under New York’s rule in People v. Reid violated Hemphill’s Sixth Amendment right to confront the witnesses against him. The Court holds that it did. Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense. In April 2006, Ronnell Gilliam and several other individuals got into a physical fight near Tremont Avenue in the Bronx. Shortly after the fight, someone fired a 9-millimeter handgun. The bullet killed a 2-year-old child sitting in a nearby minivan. Police officers determined that Gilliam was involved and that Nicholas Morris, Gilliam’s best friend, had been at the scene. Officers searched Morris’ apartment. On Morris’ nightstand, the officers found a 9-millimeter cartridge and three .357-caliber bullets. Three witnesses identified Morris as the shooter out of a police lineup. The police arrested Morris the next day and observed bruising on his knuckles consistent with fist fighting. Gilliam then surrendered and identified Morris as the shooter. Gilliam later returned to the police station and recanted, stating that Hemphill, Gilliam’s cousin, had in fact been the shooter. [Morris eventually pled to possession of a .357 and the State dropped the charges against him] In 2011, the State learned that Hemphill’s DNA matched a sample from a blue sweater that police had recovered in a search of Gilliam’s apartment shortly after the crime. Eyewitnesses had described the shooter as wearing a blue shirt or sweater. In 2013, Hemphill was arrested and indicted for the murder. [Hemphill consistently goes with “Morris was the shooter” at his trial, but loses. The trial court relies on People v. Reid, a NY case that held that “held that a criminal defendant could “ope[n] the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was “‘reasonably necessary to correct [a] misleading impression’” made by the defense’s “‘evidence or argument.’””] Hemphill appealed. Before the Appellate Division, he argued, citing the State and Federal Constitutions, that “[t]he court denied Mr. Hemphill his right to confront the witness against him where it admitted Nicholas Morris’s guilty plea statements . . . because the defense had opened the door to this evidence even though counsel had scrupulously followed the court’s in limine rulings.” He added, “the prosecution’s conduct here represented the type of overreach the Confrontation Clause was enacted to prevent: the production of evidence procured by the government without affording the accused the opportunity to question its reliability through cross-examination.” … Before proceeding to the merits, the Court must address the State’s threshold argument that Hemphill failed to present his claim adequately to the state courts. This Court “has almost unfailingly refused to consider any federal-law challenge to a state-court decision unless the federal claim ‘was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.’” “‘No particular form of words or phrases is essential’” for satisfying the presentation requirement, so long as the claim is “‘brought to the attention of the state court with fair precision and in due time.’” Hemphill has satisfied this requirement. At every level of his proceedings in state court, Hemphill argued that the admission of Morris’ plea allocution violated his Sixth Amendment right to confrontation as interpreted by this Court in Crawford…The Court may therefore consider any argument Hemphill raises in support of his claim that he did not “forfei[t] his right to exclude evidence otherwise barred by the Confrontation Clause” by “open[ing] the door to responsive evidence.” … One of the bedrock constitutional protections afforded to criminal defendants is the Confrontation Clause of the Sixth Amendment, which states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” … In [2004], the Crawford Court examined the history of the confrontation right at common law and concluded that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” The Court continued, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” … The State accepts all of the foregoing principles…The State’s primary contention is that the Reid rule “is not an exception to the Confrontation Clause at all.” Instead, the State attempts to characterize the Reid rule as a mere “procedural rule” that “treats the misleading door-opening actions of counsel as the equivalent of failing to object to the confrontation violation.” … It is true that the Sixth Amendment leaves States with flexibility to adopt reasonable procedural rules governing the exercise of a defendant’s right to confrontation…The door-opening principle incorporated in Reid, however, is not a member of this class of procedural rules. Rather, it is a substantive principle of evidence that dictates what material is relevant and admissible in a case. … Moreover, the State’s argument would negate Crawford’s emphatic rejection of the reliability-based approach of Ohio v. Roberts. If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees. The Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” … The State next insists that the Reid rule is necessary to safeguard the truth-finding function of courts because it prevents the selective and misleading introduction of evidence.…The State cites a series of cases in which this Court permitted a State to impeach a defendant using evidence that would normally be barred from use at trial. None of those cases, however, involved exceptions to constitutional requirements. … In contrast, the Court has not held that defendants can “open the door” to violations of constitutional requirements merely by making evidence relevant to contradict their defense….Courts may not overlook [the 6th Amendment’s] command, no matter how noble the motive. (“It is true enough that the purpose of the rights set forth in [the Sixth] Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair”). … The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Lineup: Sotomayor, joined by Roberts, Breyer, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett. Concurrence by Alito, joined by Kavanaugh. Dissent by Thomas. Concurrence (Alito, joined by Kavanaugh) I agree with the Court’s conclusion that—assuming Morris’s statement was testimonial—its admission violated the Confrontation Clause of the Sixth Amendment. I write separately to address the conditions under which a defendant can be deemed to have validly waived the right to confront adverse witnesses. “The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.” Waiver consists in the “intentional relinquishment or abandonment of a known right or privilege.” But a valid waiver need not be express. Implied waiver can be established through “‘a course of conduct’” even “absent formal or express statements of waiver.” In the prototypical case of implied waiver, the relevant course of conduct signals an intention to relinquish the right at issue. But “[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Our precedents establish that a defendant can impliedly waive the Sixth Amendment right to confront adverse witnesses through conduct….The problem with the New York rule at issue in this case is that its application is predicated on neither conduct evincing intent to relinquish the right of confrontation nor action inconsistent with the assertion of that right. … There are…circumstances, however, under which a defendant’s introduction of evidence may be regarded as an implicit waiver of the right to object to the prosecution’s use of evidence that might otherwise be barred by the Confrontation Clause. … The Court emphasizes that its decision does not call into question the rule of completeness or other principles that may support implied waiver of the confrontation right. On this understanding, I join the opinion of the Court in full. Dissent (Thomas) This Court may review “[f]inal judgments or decrees rendered by the highest court of a State” only where, as relevant here, a federal right “is specially set up or claimed” in the state court. Because Darrell Hemphill did not raise his Sixth Amendment claim in the New York Court of Appeals, we lack jurisdiction to review that court’s decision. I respectfully dissent. Under New York case law, a trial court may generally admit otherwise inadmissible evidence if a party has “opened the door” to its introduction at trial. … Hemphill argues in this Court that the Reid rule violates the Sixth Amendment. That claim is not properly before us. Under 28 U. S. C. §1257, “we will not consider a petitioner’s federal claim unless it was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.” … The New York Court of Appeals did not address—“expressly” or otherwise, id., at 86—Hemphill’s Sixth Amendment claim. It affirmed the trial court’s application of Reid in a single sentence: “[T]he trial court did not abuse its discretion by admitting evidence that the allegedly culpable third party pleaded guilty to possessing a firearm other than the murder weapon.”...Because the Court of Appeals was “silent on [the] federal question before us,” Hemphill must prove that he afforded the state court a “fair opportunity” to address his current Sixth Amendment claim. Hemphill does not meet that burden. To provide the Court of Appeals with a “fair opportunity” to evaluate his Sixth Amendment claim, Hemphill was required to raise that claim “with fair precision,” and in an “unmistakable manner,” such that “the mind of the state court was directed to [the federal] question.” … Here, there was no contest upon any federal claim in the New York Court of Appeals. In his briefing before that court, Hemphill asserted that the “only issue before [that] Court [was] whether the defense opened the door to Morris’s testimonial hearsay.”...Thus, Hemphill pressed only a state-law claim in the New York Court of Appeals. True, Hemphill cited one Sixth Amendment precedent, Crawford v. Washington, and stated that “the introduction of Morris’s guilty plea minutes violated [his] Sixth Amendment right.” But Hemphill reached that conclusion not because there was a “real contest . . . upon” the constitutionality of the Reid rule, but rather because the trial court misapplied Reid and thus improperly admitted unconfronted testimonial hearsay. Put another way, Hemphill never argued that evidence that complied with Reid violated the Confrontation Clause. To the contrary, Hemphill understood Reid to be constitutional. As Hemphill explained, “both the trial judge and the Appellate Division recognized that [Morris’] statements would otherwise be barred by the Confrontation Clause” if he had not opened the door. In short, everyone agreed on what the Sixth Amendment required; the only dispute was whether the trial court misapplied New York’s door-opening doctrine. The Court declines to address the substance of Hemphill’s argument in the Court of Appeals. It focuses instead on Hemphill’s remark, toward the end of his analysis, that the Appellate Division’s ruling “unjustifiably undermine[d]” the right to confrontation and was “absurd in the context of the Confrontation Clause.” But this was not a challenge to the constitutionality of the Reid rule; rather, it was an explanation why the Appellate Division’s approach to Reid represented “a radical shift never adopted by” the New York Court of Appeals in Reid or its progeny. … [E]ven if the Court were correct that Hemphill’s fleeting reference to the Confrontation Clause addressed the constitutionality of the Reid rule, Hemphill still would not have raised a “properly presented” federal claim under 28 U. S. C. §1257. For more than a century, this Court has held that “[a] general statement that the decision of a court is against the constitutional rights of the objecting party . . . will not raise a federal question.” … Hemphill’s failure to properly present his Sixth Amendment claim to the New York Court of Appeals divests this Court of jurisdiction. To be sure, on rare occasions, this Court has excused the failure to present a federal claim in state court. Our insistence on proper presentation has been “‘almost,’” though not completely, “‘unfailin[g].’” But, in my view, the Court’s recent treatment of §1257’s proper-presentation requirement as merely prudential is erroneous. We have no authority to forgive a petitioner’s failure to raise a federal claim in state court, because the proper-presentation requirement is a jurisdictional prerequisite to our review. Absent jurisdiction, the only appropriate remedy is dismissal. … That the Court decides this case despite Hemphill’s failure to present his claim to the New York Court of Appeals is not a mere academic defect. “Federal nullification of a state statute,” or any state rule, “is a grave matter.” And it is “unseemly in our dual system of government to disturb the finality of state judgments on a federal ground that the state court did not have occasion to consider.”..., the Court today purports to resolve what is effectively an intramural disagreement within the New York judiciary in order to reach a novel constitutional claim. That task should—and under §1257’s jurisdictional bar, must—be left to the New York Court of Appeals in the first instance. I would dismiss this case for lack of jurisdiction under 28 U. S. C. §1257 because Hemphill did not raise his federal claim to the New York Court of Appeals. I respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/20-637_new_6khn.pdf ulmont fucked around with this message at 03:24 on Jan 27, 2022 |
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Jan 27, 2022 01:02
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Evil Fluffy posted:Because 6-3 is not 7-2. Which could then become 8-1 and ultimately 9-0. If you think McConnell wouldn't pull the trigger himself to ensure a 9-0 conservative SCOTUS you haven't been paying attention. They let Kagan and Sotomayor through. Seems like they’d want to keep their powder dry for when Thomas or Alito croak.
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Jan 27, 2022 01:45
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Bizarro Kanyon posted:Bill Kristol made a tweet saying that Harris would be SC nominee so that Biden can appoint Romney and they would be a unity ticket. lol at people who think Romney is some sort of maverick and yet somehow kisses the ring and votes with the rest of them every single time it actually loving matters. I feel like this sort of poo poo is laying the propaganda groundwork for a backdoor Republican versus Republican POTUS election, since Biden is going to not last. It's like the same sort of amazing propaganda that somehow made idiots believe Roberts was any sort of liberal? edit - laff also at remembering that Biden being the most conservative Democrat on the 2020 ticket anyhow. This country is so hosed. jeeves fucked around with this message at 02:00 on Jan 27, 2022 |
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Jan 27, 2022 01:57
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jeeves posted:lol at people who think Romney is some sort of maverick and yet somehow kisses the ring and votes with the rest of them every single time it actually loving matters.
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Jan 27, 2022 02:03
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GreyjoyBastard posted:McConnell can't bribe either one with a worry free primary, because central party control isn't even remotely that strong. Both Arizona and West Virginia would see a centrist Republican primaried successfully by "actually we should turn immigrants into Soylent Green" and the villain from Ferngully, respectively. Of course, but that doesn't mean Sinema won't buy it.
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Jan 27, 2022 02:41
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Opinion! HUGHES ET AL. v. NORTHWESTERN UNIVERSITY ET AL. TLDR: Even if your preferred investment options are available in your employer’s ERISA plan, you can still sue if you think they are including a bunch of other terrible plans. Holding / Majority Opinion (Sotomayor) Under the Employee Retirement Income Security Act of 1974 (ERISA), as amended, ERISA plan fiduciaries must discharge their duties “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” This fiduciary duty of prudence governs the conduct of respondents, who administer several retirement plans on behalf of current and former employees of Northwestern University, including petitioners. In this case, petitioners claim that respondents violated their duty of prudence by, among other things, offering needlessly expensive investment options and paying excessive recordkeeping fees. The Court of Appeals for the Seventh Circuit held that petitioners’ allegations fail as a matter of law, in part based on the court’s determination that petitioners’ preferred type of low-cost investments were available as plan options. In the court’s view, this eliminated any concerns that other plan options were imprudent. That reasoning was flawed. Such a categorical rule is inconsistent with the context-specific inquiry that ERISA requires and fails to take into account respondents’ duty to monitor all plan investments and remove any imprudent ones. Accordingly, we vacate the judgment below and remand the case for reconsideration of petitioners’ allegations. … Northwestern University offers two retirement plans to eligible employees: the Northwestern University Retirement Plan (Retirement Plan) and the Northwestern University Voluntary Savings Plan (Savings Plan). Both Plans are defined-contribution plans. … Petitioners are three current or former employees of Northwestern University. Each participates in both the Retirement and Savings Plans. In 2016, they sued: Northwestern University; its Retirement Investment Committee, which exercises discretionary authority to control and manage the Plans; and the individual officials who administer the Plans (collectively, respondents). Petitioners allege that respondents violated their statutory duty of prudence in a number of ways, three of which are at issue here. First, respondents allegedly failed to monitor and control the fees they paid for recordkeeping, resulting in unreasonably high costs to plan participants. Second, respondents allegedly offered a number of mutual funds and annuities in the form of “retail” share classes that carried higher fees than those charged by otherwise identical “institutional” share classes of the same investments, which are available to certain large investors. Finally, respondents allegedly offered too many investment options—over 400 in total for much of the relevant period—and thereby caused participant confusion and poor investment decisions. [Their case was tossed at the motion to dismiss stage, and after some appeals here we are.] … In Tibble [v. Edison Int’l (in 2015)], this Court interpreted ERISA’s duty of prudence in light of the common law of trusts and determined that “a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones.” Like petitioners, the plaintiffs in Tibble alleged that their plan fiduciaries had offered “higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available.” Three of the higher priced investments, however, had been added to the plan outside of the 6-year statute of limitations. This Court addressed whether the plaintiffs nevertheless had identified a potential violation with respect to these funds. The Court concluded that they had because “a fiduciary is required to conduct a regular review of its investment.” Thus, “[a] plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones.” This Court then remanded the case for the court below to consider whether the plaintiffs had plausibly alleged such a violation. … Tibble’s discussion of the duty to monitor plan investments applies here. Petitioners allege that respondents failed to monitor the Plans’ investments in a number of ways, including by retaining recordkeepers that charged excessive fees, offering options likely to confuse investors, and neglecting to provide cheaper and otherwise-identical alternative investments. As a result, respondents allegedly failed to remove imprudent investments from the Plans’ offerings. These allegations must be considered in light of the principles set forth in Tibble to determine whether petitioners have stated a plausible claim for relief. In rejecting petitioners’ allegations, the Seventh Circuit did not apply Tibble’s guidance. Instead, the Seventh Circuit focused on another component of the duty of prudence: a fiduciary’s obligation to assemble a diverse menu of options. The court determined that respondents had provided an adequate array of choices, including “the types of funds plaintiffs wanted (low-cost index funds).” In the court’s view, these offerings “eliminat[ed] any claim that plan participants were forced to stomach an unappetizing menu.” The Seventh Circuit erred in relying on the participants’ ultimate choice over their investments to excuse allegedly imprudent decisions by respondents. In Tibble, this Court explained that, even in a defined-contribution plan where participants choose their investments, plan fiduciaries are required to conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options. If the fiduciaries fail to remove an imprudent investment from the plan within a reasonable time, they breach their duty. The Seventh Circuit’s exclusive focus on investor choice elided this aspect of the duty of prudence. For instance, the court rejected petitioners’ allegations that respondents offered “investment options that were too numerous, too expensive, or underperforming” on the same ground: that petitioners “failed to allege . . . that Northwestern did not make their preferred offerings available to them,” and simply “object[ed] that numerous additional funds were offered as well.” In the court’s view, because petitioners’ preferred type of investments were available, they could not complain about the flaws in other options. The same was true for recordkeeping fees: The court noted that “plan participants had options to keep the expense ratios (and, therefore, recordkeeping expenses) low.” Thus, “[t]he amount of fees paid were within the participants’ control.” Given the Seventh Circuit’s repeated reliance on this reasoning, we vacate the judgment below so that the court may reevaluate the allegations as a whole. On remand, the Seventh Circuit should consider whether petitioners have plausibly alleged a violation of the duty of prudence as articulated in Tibble, applying the pleading standard discussed in Ashcroft v. Iqbal, and Bell Atlantic Corp. v. Twombly. “Because the content of the duty of prudence turns on ‘the circumstances . . . prevailing’ at the time the fiduciary acts, the appropriate inquiry will necessarily be context specific.” At times, the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs, and courts must give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise. The judgment of the Seventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Sotomayor, unanimous (Barrett recused). https://www.supremecourt.gov/opinions/21pdf/19-1401_m6io.pdf
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Jan 27, 2022 03:02
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Pants Donkey posted:Thomas is 73 and Alito is 71; Scalia died in his late 70s so 30+ years might be a bit overstating it. I hope they start selecting judges for willingness to retire early at the outset when they're nominated. It's not just RGB, but part of a longer trend among liberal appointees, who are more likely to value their career above outcomes
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Jan 27, 2022 03:12
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galenanorth posted:I hope they start selecting judges for willingness to retire early at the outset when they're nominated. It's not just RGB, but part of a longer trend among liberal appointees, who are more likely to value their career above outcomes It probably hurts just as much or more that the RBGs were pretty old when nominated compared to everyone the Republicans put up. Wanting to be on the bench for 30 years is not as impactful for 45 year olds.
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Jan 27, 2022 06:29
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jeeves posted:lol at people who think Romney is some sort of maverick and yet somehow kisses the ring and votes with the rest of them every single time it actually loving matters. Dude voted to convict the president from his own party of high crimes and misdemeanors, twice. That might not be much, but it's also better than literally every Republican senator before him.
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Jan 27, 2022 10:44
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He cast a meaningless vote for a conviction he knew would never pass as a senator from a state who gave McMullin a bunch of votes in 2016 because he hated Trump yet wasn't a Democrat. It aint that heroic He also agrees with Trump on 99% of issues with the 1% being "should the president tweet in a decorous manner" and his Supreme Court Justices would be from the same federalist society Biblethumper list as Trump's should Biden die in office which is statistically likely VitalSigns fucked around with this message at 15:19 on Jan 27, 2022 |
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Jan 27, 2022 13:52
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vyelkin posted:Saw elsewhere on this site rather than from any official source, so take it with a grain of salt, that he's planning to retire at the end of the court term which would be late summer, which if true means that the confirmation process would happen during the peak of midterm season. The confirmation process can start before he leaves so there’s no gap in the court.
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Jan 27, 2022 14:55
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Georgetown Law just hired this guy https://twitter.com/stevenmazie/status/1486578578963808258?s=20
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Jan 27, 2022 15:27
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Evil Fluffy posted:Because 6-3 is not 7-2. Which could then become 8-1 and ultimately 9-0. If you think McConnell wouldn't pull the trigger himself to ensure a 9-0 conservative SCOTUS you haven't been paying attention. Yeah I'm on board with this view of it as well. There have already been enough 5-4 defeats for conservatives with Trump nominees switching sides thanks to One Weird Trick or being consistent with their views on something like sex discrimination that there's no way conservatives wouldn't take a 7-2 court over a 6-3 one. The greater their majority on the court, the less likely it is that one or two crises of conscience from conservative justices lead to setbacks for the evisceration of progressivism in the United States. Also referencing Kagan and Sotomayor isn't really relevant because they were both confirmed with filibuster-proof majorities at a time when Democrats had the Senate majority anyway. My guess is rather than allow the Democrats an easy layup right before the midterms, McConnell will pull out the stops to try and delay any confirmation until after the midterms so that they can leave the seat open until 2025. The relevant question is whether Schumer can wrangle enough cats to get a nomination across the finish line 51-50. (note that the final vote might not be 51-50, a few Republican senators might vote to confirm, but imo they would be doing so for a facade of phony bipartisanship if it's clear that the Democrats are going to get the confirmation done 51-50 anyway) vyelkin fucked around with this message at 15:39 on Jan 27, 2022 |
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Jan 27, 2022 15:37
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The court will trend back to 5-4 but things will go one step farther. Extra votes on the court are a resource that can be spent
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Jan 27, 2022 16:02
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I still think that the "advise" language needs to be treated thus: -Deliver the nomination by registered mail -Send three follow ups in good faith -"Well, we sent the nomination to the judiciary committee four times, here are the receipts, so we can only presume the Senate declined to take advantage of its opportunity to advise on this nomination. Justice Duke Nukem starts Monday, 9am."
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Jan 27, 2022 16:52
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JesustheDarkLord posted:The court will trend back to 5-4 but things will go one step farther. Extra votes on the court are a resource that can be spent When will this be? It's getting increasingly likely that one or more justice could retire or die before 2028 Since I think we get walloped in 2024 with R Presidency, Senate and House, it's much more likely that we are 6-3 or worse for a long time
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Jan 27, 2022 16:55
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Potato Salad posted:I still think that the "advise" language needs to be treated thus: I think the problem here is that the language is "advice and consent," not just advice. Non-response isn't evidence of consent, especially if the Senate leadership openly states that they are withholding their consent as McConnell did in 2016. I think the more powerful argument is that there should be some way to separate Senate leadership from "the Senate" which is the language used in Article II.2 on the subject, since (for example) Garland almost certainly would have been confirmed if there had been a Senate vote, so you can argue that the Senate actually did want to consent but was prevented from doing so by its leaders. But then that gets into the problems of rewriting Senate rules rather than problems of interpreting the language of the constitution on whether or not the president can just appoint Supreme Court justices, which they almost certainly cannot because of the language of consent.
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Jan 27, 2022 16:58
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Yuzenn posted:When will this be? It's getting increasingly likely that one or more justice could retire or die before 2028 The argument there is that the Court will settle around whoever the median justice is, and you'll still have 5-4 rulings, they'll just be making further-right decisions overall. The median justice used to be Kennedy, then it was Roberts, and now it's probably Gorsuch, which means these days 5-4 decisions are things that are too much even for Roberts. If Breyer was replaced by somebody like Barrett, then 5-4 decisions would be whatever is too much even for Gorsuch. I think this argument holds some water, but also overlooks that there would be plenty of cases where the conservatives all agreed and decided it 7-2. 5-4s would still happen around the median justice, but would probably still be less common than 7-2s where the conservatives agree on something like "yep it's true slavery is legal under the constitution if you're convicted of a crime, so I'm sorry but Alabama saying you can be enslaved for unpaid parking tickets is constitutional".
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Jan 27, 2022 17:01
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vyelkin posted:I think the problem here is that the language is "advice and consent," not just advice. Non-response isn't evidence of consent, especially if the Senate leadership openly states that they are withholding their consent as McConnell did in 2016. I stated things poorly, my intention doesn't change with "advise and consent" I'm less concerned about the advise part, more the "a constitutional crisis has been forced upon us and we need to get back to business" angle that is completely valid under the bare naked (John) Roberts Rules of Calvinball that is post-2000 America "We've not received word of a vote yet, we've been sending inquiries weekly asking for the results of a vote, it's been a calendar year, and need to move along with the continuity of American government...."
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Jan 27, 2022 17:10
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Like, I don't think it would not at all be challenging for the Biden administration to focus on the very democracy-centric optic of looking toward the outcome of a floor vote--per the Senate's own rules!--as the proper indicator of the Senate's advice and consent. This WH press secretary is great at bullshit, self-serving diversion that sells well to centrists. The consent manufacturing machine would eat it up. The only two problems at this point are (1) this administration won't try this or other hardball strategies because, well, Jesus, and (2) the midterms will yield a gop majority anyway Potato Salad fucked around with this message at 17:22 on Jan 27, 2022 |
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Jan 27, 2022 17:20
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Potato Salad posted:I stated things poorly, my intention doesn't change with "advise and consent" Insofar as your suggestion is serious, it suffers from the exact same problem on the other end. The executive can't be allowed to define what "good faith" means, because they might be an rear end in a top hat.
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Jan 27, 2022 17:22
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We've seen that it really doesn't matter what is or isn't good faith. What matters in politics is what you can sell, and I fear (know) that the American barely-left-of-center party is going to continue to refuse to play by these new rules even as voting laws continue to be radically mutilated across the states.
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Jan 27, 2022 17:23
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JesustheDarkLord posted:The court will trend back to 5-4 but things will go one step farther. Extra votes on the court are a resource that can be spent Republican is going to win, and win significantly, in 2024 because the Democratic Party is run by a bunch of old, rich assholes happy being controlled opposition that blocks progressive growth. Whatever Republican wins in 2024 is going to have a GOP House and Senate and work to ensure that a 2020-style loss never happens again because those Jim Crow laws in Georgia will get enacted on a Federal level.
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Jan 27, 2022 17:24
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Evil Fluffy posted:those Jim Crow laws in Georgia will get enacted on a Federal level. It pretty much doesn't matter already, enough States have these laws or Secretaries of State who have vowed to like, unless leftist militias start cropping up in huge numbers all over the place on a very frighteningly rapid basis, it's kind of already over for the medium-term horizon edited for a pedantic point of order that gets complex depending on whether or not a significant Big Lie presence exists in the legislature or the governor's office, depending on state rules in election contest Potato Salad fucked around with this message at 17:30 on Jan 27, 2022 |
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Jan 27, 2022 17:27
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raminasi posted:Insofar as your suggestion is serious, it suffers from the exact same problem on the other end. The executive can't be allowed to define what "good faith" means, because they might be an rear end in a top hat. Takes the "what if Obama is an rear end in a top hat" factor right out of it
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Jan 27, 2022 17:33
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every time I start getting mad about the present inaction over becoming destruction of democratic norms in the United states, I reassure myself by remembering that we also aren't taking action on climate change, so that none of it matters regardless
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Jan 27, 2022 17:34
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raminasi posted:Insofar as your suggestion is serious I'm actually dead serious, this would actually not be much of a stretch to sell to the public. Focusing on a litmus test of whether the Senate votes yes or no is a very pro-democracy, pro-checks-and-balances, calm and rational looking way of proceeding ("Look at their rules, they even say this is how they would determine consent!") After a year of inaction, it really would not look like a stretch for the public to be told, "we remember an era where moderate, hard-working justices would get an overwhelming vote of approval, it's been a year and America can't keep waiting while the Senate continues to waive its opportunity for input in this constitutional process, it's time to get back to business." Shake hands with the appointee, lick an ice cream cone, do whatever other ceremonial boomerisms make the consent-manufacturing-middle fawn over this guy. underlined is the emphasis that you hammer I have done an awful lot of canvassing, mostly in GA 06 when it was red, when it was purple, and went barely blue over the last decade, and I know how much of a political weirdo I and a lot of goons are. This one would sell well. I think it is far too often that we on something awful get lost in the weeds of formulaic legalism and fail to remember that politics is intermural football. There's not really a referee -- you're selling to the audience. Potato Salad fucked around with this message at 17:49 on Jan 27, 2022 |
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Jan 27, 2022 17:44
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Potato Salad posted:I'm actually dead serious, this would actually not be much of a stretch to sell to the public. Oh no, I just didn't pick up that your ultimate intention was to actually eliminate any Senate input into the confirmation process, in which case yeah, I agree that your proposal could work. But at that point, maybe it's worth considering how we can eliminate lifetime SCOTUS justices themselves, because that seems like something that interacts quite poorly with unilateral appointments by the executive.
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Jan 27, 2022 18:03
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Agreed.
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Jan 27, 2022 18:04
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VitalSigns posted:You wouldn't have to, if Obama had declared the senate had consented to Garland, the new liberal court could confirm his constitutional reasoning in a 5-4 ruling Get real. Nobody would buy this IRL including 4 justices plus the one additional who would have an obvious conflict of interest in hearing such a case. And no, “Trump would try it” (and fail) isn’t a real argument especially when no one else has the same size authoritarian coalition as Trump. yronic heroism fucked around with this message at 19:02 on Jan 27, 2022 |
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Jan 27, 2022 19:00
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Ruling on the election of the guy whose daddy appointed some of them seemed fine. Very uncouth of you to suggest judicial rulings might be corrupt or partisan, or the reasoning spurious, the court is a meritocracy sir VitalSigns fucked around with this message at 19:06 on Jan 27, 2022 |
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Jan 27, 2022 19:02
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yronic heroism posted:Get real. Nobody would buy this IRL including 4 justices plus the one additional who would have an obvious conflict of interest in hearing such a case. Conflicts of interest pretty much aren't a real thing for the Supreme Court now
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Jan 27, 2022 19:17
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yronic heroism posted:It probably hurts just as much or more that the RBGs were pretty old when nominated compared to everyone the Republicans put up. Wanting to be on the bench for 30 years is not as impactful for 45 year olds. This is a lot less true than people make it out to be. RBG was 60 when she was nominated, and Thomas was 43, but they're really the exceptions - basically everyone else was either ~50 or ~55 when they started, whether a D or R appointee. (Barrett was 48 but I treat that as basically 50 for these purposes.)
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Jan 27, 2022 19:30
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Piell posted:Conflicts of interest pretty much aren't a real thing for the Supreme Court now Yeah, no poo poo, Republicans are less ethical and it shows.
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Jan 27, 2022 19:58
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yronic heroism posted:Yeah, no poo poo, Republicans are less ethical and it shows. Shows in their 6-3 majority
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Jan 27, 2022 20:02
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