A Marquette University poll on early Senate voting on Supreme Court nominees, and our poll on “packing the court”

UPDATE: Lisa Murkowski of Alaska has become the second Republican Senator to oppose Supreme Court hearings before election day (and presumably after if Biden wins). We need two more GOP Senators to defect to derail Trump’s urgent attempt to replace RBG with a conservative.

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As I recall, I favored the appointment of Merrick Garland to the Supreme Court in March, 2016, when Obama’s pick was derailed by Mitch McConnell. With the wisdom of hindsight, I’m not sure that that was a wise opinion on my part. Although I didn’t want the court to go with eight judges for ten months, the court is usually in recess in July, August, and September, which would have been seven months.  Also, I was an Obama supporter, and I can’t be sure that my view back then wasn’t politically motivated, and that’s not right.

Now, however, I’m vehemently opposed to Trump’s trying to get an RBG replacement pushed through the Senate before election day (or, barring that, before Biden is sworn in). And I’m not sure how much a role politics plays in this new view, either. Let me just say that from now on I’ll try to oppose filling court vacancies when a Presidential party is likely to change within the year, though leaving a court with eight justices is not a good thing at any time. Obama was in his last term in 2016, and Trump may very well be in his last term now (fingers crossed). In both cases, we’re facing a short-term President versus a Supreme Court justice who will likely sit on the bench for decades. Those appointments shouldn’t be rushed, and should belong to a President who has some years left in office.

I’m puzzled, then, at the results of this Marquette University Law School poll.  It’s a survey of 1523 voters taken between September 8 and 15, before Ginsburg had died. A lot of it is about the importance of Court nominations (they are very important, despite only a bit more than half of the voters thinking they’re “very important” as opposed to “somewhat important” or “not that important.” (56% of Dems versus 48% of Republicans think Court appointments are “very important”.)

Read the other poll results, bearing on today’s issues, by clicking on the screenshot below:

There’s clear politics at work in the party breakdown of how people regarded the absence of hearings on Merrick Garland, with many more Democrats (but still more than half of Republicans) thinking that not holding the hearings was wrong:

But this is what baffles me. Here’s the result when respondents were asked whether, if a vacancy occurred during this election year, the Senate should hold hearings on a nominee:

In this case, Republicans and Democrats aren’t that different: 68% of the former and 63% of the latter want hearings held, so the political difference in opinions vis-à-vis Garland hearings has disappeared. It’s curious, though, that rushing through a nomination in this situation would seem to be inadvisable, especially as Trump’s not doing that well—yet most Democrats favor holding hearings despite the likelihood that with a Republican Senate we’re likely to get a conservative Justice sworn to overturn previous decisions like Roe v. Wade.

One more question was asked: should we increase the number of justices? Several Democrats, including the often irritating Alexandria Ocasio-Cortez, have suggested “packing the Supreme Court,” that is, increasing the number of justices as a way of making up for the conservative majority of Justices appointed by Republican Presidents. The increase would have to be by at least two to keep an odd number of Justices. Well, 61% of Democrats favor packing the court as opposed to 34% of Republicans, which makes political sense, though perhaps not democratic (small “d”) sense. I don’t think we should play politics with the Court to this extent).

What do you think? Here’s a poll:

Lagniappe for voting (h/t Blue): RBG’s good friend Nina Totenberg, National Public Radio’s head legal correspondent, gives a lovely remembrance of the late Justice.

106 Comments

  1. ThyroidPlanet
    Posted September 20, 2020 at 12:23 pm | Permalink

    Oh – by two. Well, consider one “no opinion” vote corrected up to a “yes”.

    Power should be taken when available. Republicans are built on that premise and nothing else.

  2. tomh
    Posted September 20, 2020 at 12:29 pm | Permalink

    Both Murkowski and Collins have said they “don’t support” it, neither one has said they will vote against it.

    • paablo
      Posted September 20, 2020 at 12:34 pm | Permalink

      Agreed.
      Which is a better indicator of a politician’s future actions — their words or their past actions?

      • yazikus
        Posted September 20, 2020 at 12:35 pm | Permalink

        Susan will be very concerned and disappointed when she votes to confirm.

        • Nicolaas Stempels
          Posted September 20, 2020 at 1:01 pm | Permalink

          Clutching her pearls… She is down with double digits (IIRC). The path she has been on for the last couple of years is a dead end for her.
          No, I think Senator Collins’ only chance of re-election is showing some back-bone, ie. sticking to Mr McConnell’s rule of 2016.

          • sugould
            Posted September 20, 2020 at 2:40 pm | Permalink

            Her spine has atrophied; I doubt she could change even if she wanted to.

    • dd
      Posted September 20, 2020 at 12:42 pm | Permalink

      I saw a poll showing that Collins was 12 percent below her opponent…..but didn’t book mark it.

  3. yazikus
    Posted September 20, 2020 at 12:35 pm | Permalink

    to derail Trump’s urgent attempt to replace RBG with a conservative.

    What I fear, more than just a more conservative justice, is that he’ll be appointing an unfit, unethical ideologue with no respect for the court or the constitution. I wish ‘conservatives’, the old-school, reasonable kind, would get fed up with their party having turned into the monstrosity that we see today. Where are those principled, small-govt, fiscal conservatives?

    • Ken Kukec
      Posted September 20, 2020 at 3:26 pm | Permalink

      I wish ‘conservatives’, the old-school, reasonable kind, would get fed up with their party having turned into the monstrosity that we see today.

      They have. Unfortunately there are far too few of them; they’re stragglers wandering in the wilderness of the post-Trumpocalypse. Or they’re solidly in the never-Trump camp, like The Lincoln Project, standing outside the GOP tent, pissing in.

      Donald Trump will be the end of the Grand Old Party as we’ve come to know it. At this point, it’s all but a fait accompli.

  4. Posted September 20, 2020 at 12:35 pm | Permalink

    What stops a Republican tit for tat the next time they control Congress? Pretty soon SCOTUS will be unwieldy. Also, a promise to do this could hurt the Dems chances for winning the Senate.

    • jezgrove
      Posted September 20, 2020 at 2:41 pm | Permalink

      Agreed absolutely (though as a Brit it’s probably none of my business).

      • Alexander
        Posted September 20, 2020 at 5:41 pm | Permalink

        The reality it is our (non US) business as well. US policy affects NATO and dealing with Putin, and the fact that Trump is deep inside Putin’s pocket is a big problem.

    • Ken Kukec
      Posted September 20, 2020 at 3:32 pm | Permalink

      What stops a Republican tit for tat the next time they control Congress?

      Never letting the unprincipled bastards get their hands on the reins of power again.

      Today’s wholly-owned Trump-GOP needs to be burned to the ground, so that the reasonable center-right conservative party the US needs to counterbalance the Left can arise from its ashes.

    • Posted September 20, 2020 at 6:41 pm | Permalink

      Absolutely, a promise to do this is incredibly stupid. Can’t Dems read Klingon? Revenge is a dish best served cold.

  5. John Donohue
    Posted September 20, 2020 at 12:42 pm | Permalink

    It is an emergency. We cannot have 4-4 SCOTUS during an election. Already looming: an election thrown into chaos – we are already shaky with the prospect of chaos and/or civil war.

    If it comes to some critical decision thrown to the Supreme Court (as it was during Gore/Bush), the prospect of a “tie” is a nightmare. It could break this nation.

    Appointment of a new justice prior to November is a critical requirement.

    • yazikus
      Posted September 20, 2020 at 12:44 pm | Permalink

      We cannot have 4-4 SCOTUS during an election.

      Sure we can.

      • John Donohue
        Posted September 20, 2020 at 1:28 pm | Permalink

        Why would you be okay with a 4-4 SCOTUS during an election that could require a decision of ultimate finality about the transfer of power?

      • sugould
        Posted September 20, 2020 at 2:55 pm | Permalink

        And why can’t we? Why should SCOTUS be the final arbiter of everything? Especially when it puts maximum power in the hands of Trump, our very unstable genius? You don’t think he can do worse? Remember how he treated impeachment, not as warning, but as a get-out-of-jail free card?

        And when is that “good time” to have a 4-4 decision? Maybe 2020 can be the years when all of our system and flaws are exposed during this horrible year.

        • John Donohue
          Posted September 20, 2020 at 3:04 pm | Permalink

          We live under the concept of “rule of law.” Did you ever hear of it? It requires a court of last resort for tough adjudication.

          Transfer of power, by law, in the most powerful government position in the world, is in deep jeopardy if the highest court has no majority.

          • Jim Danielson
            Posted September 20, 2020 at 9:21 pm | Permalink

            Rule of law in a democracy requires parties with power to follow the law. This isn’t the case with Trump or Republicans.
            Democracies also require parties with power to follow norms of institutions. Again, this is not the case with Trump and Republicans.

            Having a full court means nothing if those on the court are willing ignore law and precedence and support Trump in any election decision.
            That isn’t rule of law.

            If Trump stacks the court with an ideologue crony the US may never see another fair election.

    • Nicolaas Stempels
      Posted September 20, 2020 at 12:52 pm | Permalink

      I beg to disagree, a heavily weighted (partisan) court, whether left or right leaning, is infinitely worse than a 4-4 court (and it might be 5-3, 6-2, 7-1 or unanimous for that matter).
      If it comes to an SC decision re presidential elections, the (new?) speaker of the House will be president, at least until things are sorted out.

      • Alexander
        Posted September 20, 2020 at 5:50 pm | Permalink

        What about the separation of powers? Does it still exist in the US?

    • Historian
      Posted September 20, 2020 at 1:03 pm | Permalink

      You have clearly articulated the new right-wing talking point. How many people will they dupe with it? The right-wing wants to guarantee that if the election results are contested and go to the Supreme Court that it will beyond doubt back Trump.

      The Democrats must make it clear that if they win the presidency and the Senate they will pack the court if the now Republican Senate confirms Trump’s nominee. Court packing is not an ideal solution, but the Democrats need to show the Republicans that for once they won’t be pushovers.

      • John Donohue
        Posted September 20, 2020 at 1:27 pm | Permalink

        You can spin it as a “talking point” if it makes your feel smart and happy, but that does not change the fact it is a principled position.

        A 4-4 SCOTUS in during an election with the nation on the brink of civil war is unacceptable.

        • tomh
          Posted September 20, 2020 at 1:30 pm | Permalink

          Seriously? “on the brink of civil war?” That seems a bit alarmist.

          • John Donohue
            Posted September 20, 2020 at 1:48 pm | Permalink

            I will clarify: we are already deep into a Cold Civil War in this nation. It is the American Revolution vs the French Revolution. It has been brewing for 120 years, and is now coming to a head.

            My clarification is this: given the outbreak of riots and terrorist action in Blue cities, we are that close to the Cold civil war becoming Hot.

            • tomh
              Posted September 20, 2020 at 1:53 pm | Permalink

              Wow, you could be writing speeches for Trump.

              • John Donohue
                Posted September 20, 2020 at 2:07 pm | Permalink

                I wish I could write his speeches. However, I might not be a good choice, since his wandering and crudeness is part of the brand, and I would not be able to duplicate it.

                Actually, I should be the speechwriter for Barry Goldwater. We are looking into getting Elon Musk to come up with tech to revive him.

          • sugould
            Posted September 20, 2020 at 3:01 pm | Permalink

            We could easily be on the brink of a civil war. Trump’s 30-40% followers are armed and ready, and many of them have shown their willingness to do whatever dumb or illegal action he says.

            And Trump is more than happy to encourage them. Biggly.

            • John Donohue
              Posted September 20, 2020 at 3:08 pm | Permalink

              It’s not a matter of “Trump encouraging them.” It’s like this:

              “Mr. President, the Militia is at the ready, in the millions, trained and armed, but we stand down if you stand up.”

              Law and order.

              • tomh
                Posted September 20, 2020 at 3:18 pm | Permalink

                This what Trump would have you believe, and apparently it’s working. The idea that backwoods militia (and there are hardly millions of them) would take to the streets to keep Trump in power is nonsense.

              • John Donohue
                Posted September 20, 2020 at 3:42 pm | Permalink

                There are millions. That is, if you count every American property owner with intent and armament [400 million guns in circulation in the USA] to protect their property and family in case of Left Insurrection, and would even heed a call to join organized Militia if proper Authority for law and order fails. {Personally, I doubt it will fail}

                Yet, with all that fire power, you don’t see the call for, or threat of, that Militia overthrowing or “burning down” the United States.

              • Jim Danielson
                Posted September 20, 2020 at 9:27 pm | Permalink

                No, they aren’t calling for the burning of the USA. They are calling for the murder of Liberals, the left and Democrats. Preachers, militia members, firefighter prophets and other general lunatics, fanatics and extremists.

    • Ken Kukec
      Posted September 20, 2020 at 3:50 pm | Permalink

      In the extremely unlikely event that SCOTUS would be called to weigh in on the 2020 election, a 4-4 tie means merely that the decision of the lower court stands. (Had that happened in 2000, for example, it would’ve meant simply that the recount ordered by the Florida Supreme Court would have proceeded as directed. Hardly the end of the Republic as we know it.)

      Thin gruel indeed for ramming a new appointee onto the Court at this late moment.

      BTW, Mr. Donohue, can you point us to someplace where you’re on record fretting over the parade of horribles that might attend the possibility of a 4-4 SCOTUS tie regarding 2016 presidential race, when there were but eight justices on the Supreme Court for 10 months and counting?

      Doubtless you took a consistent position then?

      • Filippo
        Posted September 20, 2020 at 4:23 pm | Permalink

        “BTW, Mr. Donohue, can you point us to someplace where you’re on record fretting over the parade of horribles that might attend the possibility of a 4-4 SCOTUS tie regarding 2016 presidential race, when there were but eight justices on the Supreme Court for 10 months and counting?

        Doubtless you took a consistent position then?”

        I look forward to a clarifying, consistent response to your questions.

      • John Donohue
        Posted September 20, 2020 at 5:35 pm | Permalink

        Whoops. You misspoke. Not the parade of “horribles,” rather the “deplorables.”

        There has been no need to ponder retro consideration of 2016 or “go on record”. I’ll give it to you now. I would be emphatic that, were the situation reversed, with a Dem president up for re-election, and Clarence Thomas dead, I would be loudly for “ramming” a candidate into SCOTUS to avoid the extreme danger of anarchy resulting from a botched election and a 4-4 court.

        You don’t have to believe me. That’s your privilege. However, it is true. I care for this nation, and it is the proper principle.

        • Ken Kukec
          Posted September 20, 2020 at 6:02 pm | Permalink

          There has been no need to ponder retro consideration of 2016 or “go on record”.

          I don’t understand, John. Did you favor proceeding with the confirmation of Merrick Garland in 2016 or not? If so, did you ever go on record by stating that position in a public forum?

          To say “Oh, I would take the same position were the roles reversed,” is no different from what Lindsey Graham, Chuck Grassley, Mitch McConnell and any number of other Republican senators said in 2016, but are hypocritically backtracking on right now.

          • John Donohue
            Posted September 20, 2020 at 9:47 pm | Permalink

            Had it been an issue that came to boil on my stove, yes I would have been in support of that nomination. I believe it was 10 months ahead of the election, right?

            Go ahead and charge those who you say are backtracking. I am outside that cohort. Unfortunately, you can’t catch me in hypocrisy. You’ll have to take my word for my uniform stance. Or … convict me in the fevered court of your mind with no facts with which to point.

            Funny, I watched Wolf Blitzer earlier attempt to derail a Dem congressman from his harangue that this was all political, a disaster for America, and a disgrace. Wolf kept making the point that 44 days was enough time, evidenced by earlier situations, but to no avail. The pitch is in place, and shall not be forsaken.

            • tomh
              Posted September 20, 2020 at 9:56 pm | Permalink

              “Wolf kept making the point that 44 days was enough time,”

              What a silly point. Of course, there’s enough time, does anyone argue there isn’t? All it takes is a party in control that has no shame or conscience.

            • Ken Kukec
              Posted September 21, 2020 at 9:19 am | Permalink

              So you’re saying you never gave any thought to the Merrick Garland nomination in 2016, never expressed any opinion (even though virtually everyone else in the United States with even the slightest interest in public affairs did so)?

              This has nothing to do with “the fevered court of [my] mind.” I simply asked you a straightforward question. You’ve scrambled to avoid a straightforward answer.

              • John Donohue
                Posted September 21, 2020 at 3:30 pm | Permalink

                You deserve “fevered,” and so does tomh, because all you care about, like an obsession, is if I am a hypocrite vis a vis Garland.

                So here, I’ll feed your meme (Dems all over it like nuts today) ….

                1) Frankly and honestly, I did not know about the Garland gambit until two days ago; I was not engaged, or even aware. I know now it is a gigantic obsession with the Left, and to them stands out like a dirty tricks stupendous spike in the body politic, but to repeat: I was not aware of, let alone engaged in discussion of, let alone writing/commenting about the Garland affair. Now that should end this attempted assassination of my character.

                2) If I had been engaged, I would have been vocal about the need for a full nine on the court, and that Republicans (I am not a Republican) would be in the wrong to block it and leave SCOTUS at 4-4 during a national election.

                3) The dirty deeds of both Dem/Rep are legion. I believe Dems are worse, that is just an ad hoc opinion. And Dems have won, overall. Much of the Left/Progressive agenda has been enabled since 1890, with a once-American-Revolutionary SCOTUS and Constitution corrupted, pathetic, traitorous.

              • Filippo
                Posted September 21, 2020 at 5:06 pm | Permalink

                “Much of the Left/Progressive agenda has been enabled since 1890, with a once-American-Revolutionary SCOTUS and Constitution corrupted, pathetic, traitorous.”

                Do I correctly take it that the pre-1890 (1857) Dred Scott decision reflects an uncorrupted, non-pathetic, non-traitorous SCOTUS since, after all, black human beings at the time were property without constitutional rights?

              • Ken Kukec
                Posted September 21, 2020 at 7:37 pm | Permalink

                I’m astounded that the same person can claim to know all about “the Left/Progressive … agenda since 1890” and about the original intent of the framers of the US constitution in 1787, yet was apparently living in a cave in 2016 — one without newspapers or internet or television or radio — such that he never once encountered the name “Merrick Garland” or noticed that there were but eight justices sitting on the Supreme Court bench for 14 solid months.

                But, hey, so be it.

  6. Nicolaas Stempels
    Posted September 20, 2020 at 12:44 pm | Permalink

    I voted yes, there are 12 ‘circuits’ so it does not sound too bad to have 12 SC justices. On the other hand, I do not think it is a good idea to pack the court for political reasons. So it is a rather weak ‘yes’.
    As for the nomination of a SC Justice during an election year:
    I noted there were 14 such cases. In the six cases where that happened more than seven months before the elections, only one vacancy was not filled before the election, the one left by Justice Scalia. The refusal to even hear Mr Garland is definitely an outlier.
    Of the eight cases where it happened less than 7 months before the election, only one vacancy was filled (the one of Justice Hughes, in 1916), but that was also more than 4 months before the election. Filling the vacancy left by Justice RBG (1,5 months before elections) would definitely be an even greater outlier.
    If precedent is anything to go by, yes, if it is more than seven months before the elections, and no if it is less. The primaries are in progress by then, the whole election process is under way.

    • Ken Kukec
      Posted September 20, 2020 at 4:06 pm | Permalink

      I say go for four new seats. It’s always better to have an odd number (here 13) than to invite a tie. Also, this would allow one justice to perform the “circuit justice” duties for each of the 12 US circuits (11 of them enumerated, and the DC Circuit), freeing the chief justice to tend to his own administrative duties.

      Plus, it would serve as a form of condign rough justice. They steal two of ours, we take those two back, plus steal two more. As Sean Connery told Kevin Costner in The Untouchables, “That’s the Chicago way!”

      • Nicolaas Stempels
        Posted September 20, 2020 at 4:48 pm | Permalink

        Al Capone is a good role for Mr Trump (well hardly a play-role, he is a mobster, after all). Mr Biden as Elliot Ness a bit less so. I like Mr Biden, but he appears a bit too kind for Elliot’s role, not nasty enough.

        • Ken Kukec
          Posted September 20, 2020 at 6:08 pm | Permalink

          It’s also possible that, like Capone, Trump suffers from untreated syphilis of the brain.

          That would explain a lot.

          • rickflick
            Posted September 20, 2020 at 8:24 pm | Permalink

            That’s not likely, given the analysis by psychologists over the last few years. His symptoms developed when he was a young adult. Psychopathy is the likely diagnosis. It’s an anomaly of brain structure and is heritable. Although syphilis could be an additional factor.

  7. Jon Gallant
    Posted September 20, 2020 at 12:47 pm | Permalink

    Some Rightists are perfectly frank about counting on more Trump Supreme Court justices in order to reverse not only Roe v. Wade, but the entire New Deal. Excerpt from a recent Spectator column to that effect:

    “With the timing of Roberts’ defection occurring just four months before the 2020 election, he has guaranteed that Donald Trump will make judicial picks a major campaign issue in his race and the U.S. Senate races. Trump will argue that he needs four more years and a Republican-led U.S. Senate to appoint more justices because history has taught conservatives that they always lose a justice or two on major votes. Ginsburg would be 92 and Breyer 86 on election day in 2024. Thus, by getting to a 7-2 conservative majority led by the wavering Roberts in the next four years, conservatives could finally secure a five-vote majority to reverse cases like Roe and the New Deal cases that fundamentally changed the nature of America.”

    • Ken Kukec
      Posted September 20, 2020 at 4:25 pm | Permalink

      Right now, as it is, Obamacare is toast. The case from the Fifth Circuit that struck it down, Texas v. California, is set for oral argument on November 10th, one week after the election.

      If there is a 4-4 tie (which seems all but inevitable, given the sitting justices’ votes in earlier ACA cases), it means the Fifth Circuit opinion will stand and the Affordable Care Act will fall — and with it, during this time of pandemic, the protections for pre-existing conditions.

      If Trump gets another appointee, SCOTUS will invalidate the ACA itself outright, since the Trump administration has filed amicus briefs supporting the Fifth Circuit’s position, and since Trump will never appoint a justice in favor of upholding Obamacare.

      • Posted September 20, 2020 at 4:47 pm | Permalink

        I understand the feeling. People are rightly upset by the Republican hypocrisy and treachery. But whether it would be wise for the long run governance of the nation is another matter. Perhaps the decision should be made with cooler heads.

        Also, I do not know that you will find universal approval among the Dems for doing it. It split the party for FDR, and it may well split the party today, along centrist and progressive lines. I don’t know. But I do think the threat to do it will make it harder for the Dems to win the Senate, in which case it will be academic, as they say.

        • Posted September 20, 2020 at 4:49 pm | Permalink

          Sorry. This was meant to reply to your comment under 4.

        • Ken Kukec
          Posted September 20, 2020 at 6:19 pm | Permalink

          I’ve always been against any Court-packing plan — by virtue of an atavistic distaste of sorts for what FDR attempted in 1937.

          But if Republicans insist on ramming a replacement for RBG onto the Court before the end of this senate session … well, enough is enough. All bets are off, as far as I’m concerned.

      • Nicolaas Stempels
        Posted September 20, 2020 at 5:02 pm | Permalink

        Many Americans hate Obamacare, but love ACA (yes, I know).
        The point about protections for pre-existing conditions must be made very clear, in any race: Senatorial, House or presidential. I mean, obviously most Trumpists suffer at least from hypertension (:))
        That would really be a winner for the Democrats.

  8. Randall Schenck
    Posted September 20, 2020 at 12:56 pm | Permalink

    The video was good. I think America has cooked the importance of the supreme court into their being. It has come to be the most important branch of govt. by maybe two or three times the others. It should not be this way and it could have been prevented. Too bad. There is for example, no reason the congress could not do gun legislation. They won’t because they won’t, just like they won’t do many other things that should be done by the congress. The Constitution and those who put it together believed it would be that way and they were wrong. I am simply disgusted with the whole business.

    One other thing they got wrong and that is the lifetime appointment. Nobody should have that, elected officials do not get it, why do we have this with justices? It makes no sense and adds to the problems we currently have with this court.

    • Nicolaas Stempels
      Posted September 20, 2020 at 1:10 pm | Permalink

      I agree and disagree, Randall, but mostly the latter.
      An SC would be great as a powerful referee. But that presumes an SC that is above partisanship. I think a SC Justice should be confirmed by a 2/3rds majority, or a 50%+ majority of each party.
      And yes, 75 or 77 (for example) appears a beautiful retirement age.

      • Nicolaas Stempels
        Posted September 20, 2020 at 1:11 pm | Permalink

        Sorry, the former, I mostly agree.

        • Randall Schenck
          Posted September 20, 2020 at 1:36 pm | Permalink

          Yes, I am fast coming to the opinion we should eliminate both houses of congress and let the court do their job. If you check it out the congress has done almost nothing for a long time. There is no reason the court of 9 could not add this to their work and just think how much money they would save. Just put the lobby next door to the court, install a moving escalator and the deal is done.

          • Nicolaas Stempels
            Posted September 20, 2020 at 4:24 pm | Permalink

            🙂

  9. dd
    Posted September 20, 2020 at 1:06 pm | Permalink

    Would someone like to define “court packing”?

    Isn’t that what has been happening for years?

    • Randall Schenck
      Posted September 20, 2020 at 1:58 pm | Permalink

      Famously tried by FDR in the later 30s. I think he wanted to add 5 to the court as they were shutting down much of his new deal. His attempt was turned back by the congress although they had few ideas of their own. Like the current congress they were good at doing nothing and hated if anyone else did something.

      • Posted September 20, 2020 at 2:42 pm | Permalink

        Adding five would make an even number. It was probably six.

        It is debated whether his failed court-packing attempt hurt or helped FDR. It reduced his support in Congress, but the threat made the court a bit more amenable.

    • Posted September 20, 2020 at 2:05 pm | Permalink

      In this case it’s taken to mean expanding the numbers of Justices on the court beyond nine.

  10. rickflick
    Posted September 20, 2020 at 1:56 pm | Permalink

    The survey results for Gop vs Dem is one more bit of evidence that the political atmosphere is filled with poison vapor.

  11. DutchA
    Posted September 20, 2020 at 2:14 pm | Permalink

    This is difficult to imagine for a Dutchie.

    So basically when RBG is replaced by a conservative judge every previous decison like in Roe v. Wade or Obergefell v. Hodges could be overturned? Just like that?

  12. Ken Kukec
    Posted September 20, 2020 at 2:20 pm | Permalink

    I think — and have long thought — that the appropriate line of demarcation for proceeding with the replacement for a SCOTUS vacancy in a presidential election year is the summertime major-party conventions. If the vacancy occurs before that, there is sufficient time to proceed with due prudence. Afterward, the campaign season (for both presidential candidates and one-third of the US senate) has begun in earnest, and a confirmation proceeding shouldn’t be thrust upon us. This is consistent with this nation’s past practice — until 2016 and this year, that is.

    If these Republican sonsabitches succeed in ramming a replacement for RBG onto the Court before the end of this term anyway — if they succeed in stealing their second SCOTUS appointment in four years — it’s no more Mr. Nice Guy. From here on out, it’s a steel-cage death match, no holds barred. Goodbye filibuster, hello four new seats for The Supremes.

    It’s Scarface, reel three. You cockroaches wanna play rough? Okay, say ‘ello to my little fren’:

    Fuck bipartisanship. Fuck the unprincipled Republicans in the US senate. It’s time to take over the whole goddamn government and to start cramming our policy down their throats, as they theirs ours.

    (Pardon my swears. I’m a bit hot on this one; maybe you can tell.)

    • sugould
      Posted September 20, 2020 at 3:35 pm | Permalink

      +1

    • Nicolaas Stempels
      Posted September 20, 2020 at 4:34 pm | Permalink

      I note Tony Montana does not end up ‘victorious’ there.

      • Ken Kukec
        Posted September 20, 2020 at 6:35 pm | Permalink

        Reckon that’s why Oliver Stone never wrote, and Brian De Palma never directed, a sequel. 🙂

    • Nicolaas Stempels
      Posted September 20, 2020 at 4:41 pm | Permalink

      “This is consistent with this nation’s past practice — until 2016 and this year, that is.” as pointed out under 6. I agree 100%.

    • Historian
      Posted September 20, 2020 at 6:14 pm | Permalink

      I agree with you that if the conditions are right, i.e., the Democrats control the presidency and Congress then they must move swiftly and ruthlessly to not only pack the Court, but end the filibusters, and pass their legislative agenda. Of course, all the so-called Republican think tanks will say this bad. They need to be ignored. Obama’s big mistake was to think he could work with Republicans. I’m not sure Biden knows what needs to be done. I am afraid that he may think he could restore government to the state of civility and occasional bipartisanship that existed when he was in the Senate. If the opportunity comes to pass to decisive action and he should blow it, Democrats will never forgive him. We know the Republicans and McConnell would not hesitate a second to pass their agenda if they had the votes. Democrats need to play the same game.

      The current situation represents a time fraught with danger to American democracy. We cannot predict what will happen. But, the worst thing the Democrats can do is roll over and pretend that Republicans will come to their senses. They must not surrender without a fight. They may need to confront the violence of right-wing militias. American democracy may come to an end, but Democrats need to make the effort to save it.

      • Ken Kukec
        Posted September 20, 2020 at 6:31 pm | Permalink

        Obama’s big mistake was to think he could work with Republicans.

        Like many other Democrats, I was enamored of Obama’s keynote address at the 2004 Democratic National Convention. But all that pretty talk about “purple-state America” was incredibly naïve — a realization Barack was a bit too slow to come to as president, if you ask me.

  13. Mike
    Posted September 20, 2020 at 2:33 pm | Permalink

    As a non-USian observer I don’t vote in these polls. But the suggested court-packing by Democrats seems wrong because it breaks a norm. Norm-busting has been one of Trump’s worst effects because it is long-lasting. Even as a response to Republican partisanship on court appointments, and their rejection of Garland, it still seems wrong to pack the court. Where would it end?

    The solution is to win elections, especially Senate elections. Then eliminate the filibuster, and work for statehood for DC and Puerto Rico. Call it “Senate-packing”.

    • Mike
      Posted September 20, 2020 at 2:36 pm | Permalink

      But I can see where Ken@12 is coming from. It’s a cage match for sure.

  14. kesheck
    Posted September 20, 2020 at 2:50 pm | Permalink

    I’ve read multiple pundits who’ve opined that increasing the number of justices would be more democratic rather than less.

    Right now, each justice yields too much power. A larger court would distill that power.

    Also, a larger court could use rotating panels to decide cases, which, presumably, would take some of the political partisanship out of court decisions.

    As an example of an alternative system, Denmark’s Supreme Court normally has 15 judges and a president, and uses a different selection process than the U.S.

    https://en.wikipedia.org/wiki/Supreme_Court_(Denmark)

    • kesheck
      Posted September 20, 2020 at 2:51 pm | Permalink

      Oops, each judge *wields* too much power, not *yields.*

    • Mike
      Posted September 20, 2020 at 3:19 pm | Permalink

      I think you mean “dilute that power”. Distillation concentrates power (at least in my liquor cabinet).

  15. Dick Veldkamp
    Posted September 20, 2020 at 2:50 pm | Permalink

    I voted yes.

    In my view, if your opponent is consistently ignoring the rules, and keep on playing fairly would lead to all sorts of terrible things for 30+ years, it’s time leave the high road. The consequences of being principled here would be too terrible.

    By the way, as I understand it, ending the filibuster and court packing would still be within the *written* rules.

    I realise that going with the “The end justifies the means” philosophy may be dangerous, but there are times when the alternative is worse. For example, I think everybody would agree that lying to protect somebody from the authorities in a totalitarian state would be justified.

  16. Stewart Jump
    Posted September 20, 2020 at 3:50 pm | Permalink

    How are these the best legal minds in the US if their politics count so much as to how the decide the law? Sounds like both sides come up with a legal argument to meet their personal political agenda.

    Live in the UK so not directly affected.

    • Nicolaas Stempels
      Posted September 20, 2020 at 5:06 pm | Permalink

      You Brits Brexited, so it is difficult to take anything coming from the UK seriously 🙂

      • Filippo
        Posted September 20, 2020 at 5:31 pm | Permalink

        “You Brits Brexited, so it is difficult to take anything coming from the UK seriously 🙂”

        With China rising in dominance (in part due to the offshoring of U.S. manufacturing jobs?), Obama “pivoted” westward, claiming that the U.S. is a “Pacific nation.” Standing on British soil at U.S. taxpayer expense, he encouraged (cajoled? harangued? arm-twisted?) Brits not to Brexit. Just as the U.S. is presumably no less an Atlantic than a Pacific nation, it would seem reasonable that it should be no less advantageous for the U.S. to (to some degree) renounce its sovereignty and join the European Union, accordingly submitting to the omniscient, omnibenevolent scions of Brussels. 😉

        • Ken Kukec
          Posted September 20, 2020 at 7:59 pm | Permalink

          I’m not aware of the EU having extended an invitation. You really want an 800-pound gorilla in your room?

          Hell, the old Common Market was intent on keeping the US out.

  17. Greg Esres
    Posted September 20, 2020 at 4:16 pm | Permalink

    I used to be a “no”, but now am “yes”. Republicans have used hardball tactics to increase their power well beyond what they should have based on national support, and SC domination only serves to increase that power. There may be no stopping them from weighting the scales so they can never lose again, if we aren’t there already.

  18. Jon Gallant
    Posted September 20, 2020 at 4:31 pm | Permalink

    We now have an interesting test of Mitch McConnell’s true character. If he values nothing beyond his power as Senate leader, then, paradoxically, he might abide by his own 2016 rule and not speed a Trump nominee through the Senate in a last-minute kangaroo confirmation. That is because such a travesty to get Rudy Giuliani or Ivanka Trump onto the Court would be so blatantly crooked that it would put several GOP Senate seats at risk, including Mitch’s own, thus endangering his own position.

    On the other hand, if Mitch is actually a serious Rightist ideologue, dedicated to returning the US to the halcyon days of the 1920s—or better yet, the 1880s, before such terrors as the Pure Food and Drug Act, the Sherman and Clayton Anti-Trust Acts, and the American Federation of Labor—then he will ram through Trump’s nominee, so as to secure a Supreme Court dedicated to undoing these unfortunate 20th century developments.

    • rickflick
      Posted September 20, 2020 at 8:16 pm | Permalink

      No test of Mitch needed. His true character is a known commodity. He’s just about as unprincipled as they anyone in the history of the world.

  19. Posted September 20, 2020 at 7:10 pm | Permalink

    The Supreme Court has always been intensely political, not necessarily in the partisan politics sense, but in the sense that ideology and world-view play an essential role. Words don’t automagically interpret themselves, Gorsuch et al to the contrary notwithstanding. Nor can a single “original intent” be divined from the hundreds of legislators who managed to compromise on a law, as Scalia imagined. There might be a few cases in which in which these approaches work well enough – the easy cases – but those are well-handled by lower courts. By the time a legal dispute gets to the Supreme Court, the odds that such by-the-book methods can decide it are miniscule.

    As Jerry’s fellow Chicagoan Brian Leiter often points out, Supremes are in effect legislators who fill in the gaps as they see fit. You’d have to be apathetic or crazy to view the Court as a neutral arbiter.

  20. Marty L.
    Posted September 20, 2020 at 10:52 pm | Permalink

    Normally I wouldn’t support it, but since Republicans refused to even hold hearings for Garland because it was an election year and now will try to shove this through in an election year I say Democrats may need to play dirty and that could certainly be stacking the court. Of course they would need control of the both chambers and have a Democrat President to even have a chance at accomplishing it. If they do I say add 4 Justices. Of course Republicans could do the same when they have full power. But if Republicans aren’t going to follow the precedent they set just 4 years ago then Democrats should play dirty too.

  21. Mark R.
    Posted September 20, 2020 at 11:07 pm | Permalink

    I feel mentally fit most of the time. Physiologically, I have hypertension, asthma and a pinch of nihilism and a “counting” problem. (I like to count.) The nihilism just popped up (does that count?); it was quashed, so I thought, but this Covid has hammered at my thoughts and after another hero for Justice died, the Nihilism reared it’s fuck-you face. And I thought of all those Evangelical “wishing for the end-of-the-world types” imagining RBG’s death as an actual “sign” that their Theocratic America is now in motion. I “know” RBG’s death has ignited those who are in the cult of Trump. Will it matter? Hope not, unless they can vote twice or thrice. Is that so hard to imagine at this point? Won’t work but would gum up the works. I’m still worried about the fucking virus. Still stressed about the world deciding fascism is ok again…did the world forget what fascism was? Another problem I suppose. Myself? Mentally fit most of the time. I’m a bit confused at the moment. And angry. And I really dislike being angry…especially when it carries on.

  22. Posted September 21, 2020 at 3:30 am | Permalink

    As I recall, I favored the appointment of Merrick Garland to the Supreme Court in March, 2016, when Obama’s pick was derailed by Mitch McConnell. With the wisdom of hindsight, I’m not sure that that was a wise opinion on my part.

    But the action of Moscow Mitch was nonsense. Obama was the duly elected constitutional president of the USA and had every right to nominate and have a hearing to confirm the nomination.

    What Moscow Mitch did was a travesty. Is it the case that a US president is only allowed to do his or her job for three years and then have to sit around doing nothing for the last year, in case his successor wants to do something different? The president is elected for a term of four years, not three years and a lame duck period.

    I’m sorry, but Trump is the president. He has a right – in fact, a duty – to nominate supreme court judges. There may turn out to be good reasons to deny the appointment of whomever he nominates but “the president should not be allowed to do his job in potentially his last year” is not one of them.

    • Ken Kukec
      Posted September 21, 2020 at 9:03 am | Permalink

      Correct. But in 2016, Trump was the one who urged Mitch McConnell to sit on the Merrick Garland nomination until after the election.

      Trump helped make this befouled bed; let him sleep in it.

      • Posted September 21, 2020 at 9:26 am | Permalink

        That’s not really relevant to my point.

        PCC(E) was pondering about whether he should buy in to Moscow Mitch’s reason for not allowing Garland to be appointed. I’m saying that that reason is a bogus one. The President is appointed as the Chief Executive of the USA for four years, not three. NcConnell was wrong to delay the appointment then and it would be wrong to delay an appointment now for that reason. McConnell set a horrible precedent then and to prevent the appointment now purely so the next (hopefully Democrat) president can substitute his own choice would confirm the precedent.

        I get that Trump’s choice is likely to be a complete disaster for the people of the United States, but this is jut a symptom of the terrible system you have there.

        • Ken Kukec
          Posted September 21, 2020 at 10:23 am | Permalink

          Would your reasoning extend to a vacancy that occurs during the lame-duck session after an incumbent president has been voted out of office?

          • Posted September 22, 2020 at 2:24 am | Permalink

            Yes. One of the few things that the US Constitution is clear about is that the US president is elected for a term of four years, not three and a bit years.

            • Ken Kukec
              Posted September 22, 2020 at 1:59 pm | Permalink

              The transition phase after an incumbent has been turned out of office is a pretty sloppy time to be conducting the vetting and confirmation process for a new SCOTUS nominee. Which is probably why, in 230 years and 114 SCOTUS appointees, it’s never happened in the history of the Republic.

              I agree that a president is elected for a full four-year term and empowered to perform all his or her duties during the entire time. But at some point it certainly becomes unfeasible as a practical matter to proceed. I think that point is reached at some point in the latter half of the final year of a president’s term — the later in the term, the more impractical the task.

              The justices themselves understand this, which is why they almost never retire during the final year of a president’s term. Vacancies during that period tend to occur solely as the result of the death of a sitting justice (as was the case with Nino Scalia and RBG).

  23. Veroxitatis
    Posted September 21, 2020 at 5:47 am | Permalink

    Waiting for the vagaries of the grim reaper is perhaps no way to run a country. Perhaps there should be a retiral age for Justices of the Supreme Court of the US as is the case for Justices of the UK Supreme Court. For the UK SC it’s 70. Many believe it should be 75. I feel that would be a reasonable cut off for US SC Justices. It would have the benefit of producing a speedier turnover than death.

  24. KD
    Posted September 21, 2020 at 8:28 am | Permalink

    It would be political suicide for the GOP not to nominate and appoint a new Supreme Court Justice with lightning speed.

    “Packing the Court” would work on a temporary basis, but in the the mid-term and long-term would likely destroy the legitimacy and the impression of independence of the Judicial Branch, and radically shift power from the Judiciary to the Executive and/or Legislative Branch. Depending on where you stand, that may be a good thing or a bad thing, but the general political climate of “social liberalism” has always depended on federal judges striking down laws and popular referenda. If I were a moderate liberal, I think it is terrible for the cause. If I were a radical, I would support it.

    My guess is that if Biden wins, whatever is said, he is unlikely to actually follow through on court-packing, with some rhetoric addressed to not ruling it out as an option.

    Given that the current Supreme Court is extremely pro-corporate, and likely to remain so, and the major political parties are bankrolled by corporations and wealthy billionaires, I don’t see court-packing as a likely strategy. On the other hand, eliminating the filibuster has a shot, and I would expect at very least the filibuster gets watered down again if the Dems recapture the Senate.

    • Ken Kukec
      Posted September 21, 2020 at 3:22 pm | Permalink

      “It would be political suicide for the GOP not to nominate and appoint a new Supreme Court Justice with lightning speed.”

      Yes, I suppose standing on principle and living up to the precedent you set, and the solemn word you gave, a few years ago would indeed constitute political suicide for Republicans.

      Which says almost all you need to know about the character of today’s Republican officeholders and their base.

      • KD
        Posted September 22, 2020 at 5:40 am | Permalink

        Are you claiming that the GOP blocked Garland’s confirmation based on principle, not partisan considerations?

        I don’t think charges of hypocrisy will be effective, because everyone already sees the Senate Republicans as acting in a completely partisan fashion on judicial confirmations.

        If anything, the political benefits to the Democrats consist in a compelling argument to voters in purple states not to re-elect GOP moderates to the Senate, and by blowing up the likelihood of a second economic stimulus.

        If I wanted a talking point, I would focus on how the GOP is abandoning the people suffering economic hardship in the midst of COVID, in favor of playing Court politics.

  25. rickflick
    Posted September 21, 2020 at 8:41 am | Permalink

    David Leonhardt explains why the court is so conservative. Democrats have not figured out how to take advantage of timing.
    He mentions that Ginsburg could have resigned during Obama’s time and saved the seat. I would have to blame her for poor judgement.
    The only solution to succession I can see would be a more justices.

    • Filippo
      Posted September 21, 2020 at 1:18 pm | Permalink

      “David Leonhardt explains . . . that Ginsburg could have resigned during Obama’s time and saved the seat. I would have to blame her for poor judgement.”

      I haven’t read Mr. leonhardt’s column. Does he also similarly, omnisciently hold forth on the likely response of noble Mitch McConnell to Justice Bader-Ginsburg’s resignation/Obama’s replacement nomination? (Re: Merrick Garland)

      • rickflick
        Posted September 21, 2020 at 4:16 pm | Permalink

        No. He didn’t say it was a mistake for her not to have resigned. That was my own suggestion. There is a risk, of course. If she’d resigned in the next to last year, I suppose Obama would have gotten his way, but there is no guarantee McConnell would not have blocked any nominee at any time. He’s that kind of guy.

  26. Torbjörn Larsson
    Posted September 21, 2020 at 5:39 pm | Permalink

    I don’t see the rationale with tying selection to elections. It is “nice” but not an inherent part of the system.

    Of course, the other side of the coin is that politically delay selections shouldn’t be possible either.

  27. Torbjörn Larsson
    Posted September 21, 2020 at 5:47 pm | Permalink

    I haven’t read Roth, but he sounds very European except that he has no support in laws defining hate speech [ https://en.wikipedia.org/wiki/Hate_speech_laws_by_country#Europe ].

    • Torbjörn Larsson
      Posted September 21, 2020 at 5:48 pm | Permalink

      Please dismiss – wrong tab.

  28. rickflick
    Posted September 21, 2020 at 6:42 pm | Permalink

    This just in:
    “Grassley says he supports the Republican push for a Supreme Court nominee, and McConnell promises a vote ‘this year.’”


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