Now that Kennedy's retiring, Trump gets another SC pick
June 28, 2018 10:00 AM Subscribe

With US Supreme Court centrist Justice Kennedy's recent decision to retire, Donald Trump now gets a second Supreme Court pick, one that may reshape the SC (and the country) for decades. Moments after the announcement, Mitch McConnell promised a swift confirmation of Trump's nominee before the midterm elections. This appears likely: all Senate Republicans are likely to go along with Trump's conservative nominee even if they grumble about it, while moderate Democrats may break party ranks to also support Trump's nominee.

Quotes:

"...alarm bells for anyone who cares about women — and the Constitution" - Nancy Northup, Center for Reproductive Rights

"The future of Roe v. Wade and women’s right to choose is definitely at risk." - David Cole, ACLU

"In 18 Months, Abortion Will Be Illegal In 20 States" - CNN legal analyst Jeffrey Toobin

"By leaving at this time, he [departing Justice Kennedy] puts that legacy [of protecting LGBT people] in jeopardy" - Camilla Taylor, Lambda Legal

"Kennedy’s retirement means the balance of the court will shift, setting back people’s rights — including women, people of color, immigrants and LGBTQ individuals — for an entire generation" - Fatima Goss Graves, National Women’s Law Center

"I feel like everything is in jeopardy. I’m sort of speechless at the moment." - Cindy Nava, an immigrant from northern Mexico who was brought to the United States as a child by her parents

"Oh, my God!" - DNC members, collectively, as they heard the news

posted by splitpeasoup (185 comments total) 49 users marked this as a favorite

The Supreme Court could look at a Trump self-pardon [Slate, 6/8/18]

This could be the lever that brings us no-holds-barred fascism.
posted by ryanshepard at 10:06 AM on June 28, 2018 [45 favorites]

Yes, Supreme Court Justice Anthony Kennedy’s Retirement Really Is That Dangerous
posted by homunculus at 10:07 AM on June 28, 2018 [3 favorites]

Yesterday was my birthday. I'm usually sad on my birthday for no discernible reason. This time around there were so. Many. Reasons.
posted by grumpybear69 at 10:07 AM on June 28, 2018 [25 favorites]

So a President who is under criminal investigation gets to pick a judge who will decide on those criminal charges? OK, sure.
posted by Capt. Renault at 10:12 AM on June 28, 2018 [65 favorites]

@CoreyCiorciari: On May 31, 2016 @HillaryClinton delivered a speech on the future of SCOTUS: "The court can either make America a fairer place, or roll back the progress we’ve worked so hard to achieve."

Here's how it was covered by the press 👇

[gallery of BUT HER EMAILS headlines]
posted by tonycpsu at 10:12 AM on June 28, 2018 [57 favorites]

Is this the new catch-all thread or just for SC appointment talk?
posted by Jacqueline at 10:13 AM on June 28, 2018 [2 favorites]

Is this the new catch-all [politics] thread or just for SC appointment talk?

I would prefer it to be just regarding the SC appointment and the ramifications thereof, since that is a massively important issue on its own, but I will leave it to the mods to decide that.
posted by splitpeasoup at 10:16 AM on June 28, 2018 [5 favorites]

One-minute Twitter video of Rep. Jim Jordan (R-Ohio) faceplanting into a slap from Rod Rosenstein at a committee hearing.

Turns out no, you cannot deliver a subpoena to a phone call.
posted by scaryblackdeath at 10:16 AM on June 28, 2018 [14 favorites]

Also, it would be really great if people could share thoughtful articles with different points of view, instead of just screaming "OMG we're doomed" all the time.
posted by Melismata at 10:17 AM on June 28, 2018 [31 favorites]

Is this the new catch-all thread or just for SC appointment talk?

Let's keep it focused to just Kennedy/SCOTUS/retirement stuff, yeah. The current big catch-all thread is over here.
posted by cortex at 10:19 AM on June 28, 2018 [3 favorites]

So, it does not say in the constitution that the Supreme Court has to have 9 justices. I have a low amount of faith in Democrats to do this, but: the next administration could just add 5 liberal justices if it had the senate votes for them.

In case any of you needed a pie-in-the-sky fantasy to keep you hopeful.
posted by BuddhaInABucket at 10:22 AM on June 28, 2018 [18 favorites]

Here's what I'm telling my Senators on the phone:

I do not support any a votes on any Supreme Court nominees until Robert Mueller's investigation into the traitor in the White House has been completed. After the corrupt an illegitimate appointment of Neil Gorsuch, Donald Trump must NEVER be allowed to seat any SCJ. Trump is clearly in a puppet of a hostile foreign adversary who use their state propaganda channel to mock the United States about how the Russian kleptocracy elected Donald Trump.

In light of this, not one of Trump's unlawful judicial appointments are legitimate. I expect that the Senator will use all available means to halt business in the Senate and prevent more corrupt court appointments by the traitor-in-chief and his Congressional sycophants like McConnell and Ryan.

posted by Excommunicated Cardinal at 10:23 AM on June 28, 2018 [37 favorites]

Also, it would be really great if people could share thoughtful articles with different points of view

SCOTUS will have an entrenched conservative majority, further undermining voting rights and labor rights, likely ending legal abortion in many states, and possibly making same-sex marriage illegal. That’s clear. The only differing perspectives are whether you like that future or not. It’s coming regardless.
posted by Pater Aletheias at 10:24 AM on June 28, 2018 [42 favorites]

So, it does not say in the constitution that the Supreme Court has to have 9 justices... the next administration could just add 5 liberal justices if it had the senate votes for them.

Do tell more! (Specifically: how pie-in-the-sky is this, really?)
posted by splitpeasoup at 10:29 AM on June 28, 2018

"Not quite. The size of the Court is statutory, not Constitutional, currently affixed at 9 since the Judiciary Act of 1869. FDR's court packing plan would've been legislative, and was defeated in Congress with the aide of the untimely death of the Democratic Majority Leader who FDR had promised one of the expanded seats to. The SCOTUS then acted to save itself from more attacks by FDR by starting to uphold his New Deal legislation."

So sure, if you had the House and 60 votes in the Senate, you could pass a law to pack the court. Then the next Republican wave could pass a new law to undo it all. You need a constitutional amendment for anything lasting.
posted by saturday_morning at 10:33 AM on June 28, 2018 [6 favorites]

Thanks for the link! Excerpt:

The court was founded in 1789 with just six justices and has included as many as 10 ― from 1863 to 1866, when a Republican legislature intentionally shrank the court size to seven justices to prevent President Andrew Johnson from making any appointments.

tl;dr: nothing magical about the number nine, and we have historical precedent.
posted by splitpeasoup at 10:33 AM on June 28, 2018 [15 favorites]

The SCOTUS then acted to save itself from more attacks by FDR by starting to uphold his New Deal legislation

As the very Wikipedia article that comments links to notes, this is not true, though it's proved to be a popular myth. The reason given in that comment for the court-packing bill failing is also false, or at least very misleading.
posted by Sangermaine at 10:36 AM on June 28, 2018 [3 favorites]

When I heard the news I got the same feeling in the pit of my stomach that I had when I learned that a certain shitgibbon was president.
posted by Splunge at 10:37 AM on June 28, 2018 [14 favorites]

Now seems like a good time for more Jane collectives.
posted by schadenfrau at 10:39 AM on June 28, 2018 [14 favorites]

I intend to do everything in my power to ensure a Democratic governor and legislative body in my state. That seems like an achievable goal that should at least protect women in my state. It sure doesn't help people in Alabama, though.

That's the problem. Those of us in California, Oregon, Vermont, etc. are not going to be the ones affected by this. Abortion is legal here, and blue states could and probably will just shrug and disregard any federal law (the way sanctuary cities, legal weed, etc. operate). The problem is the red states.

Now I hope that the Blue Wave will put more Democrats in local offices; local and state elections have been ignored by Democratic leadership for too long and we're paying the price. Democrats in general have counted on the Court and the Federal government being on our side, as they have been since the New Deal and definitely since Civil Rights. Now that's gone, and we're left with the states. California and Oregon are sitting pretty, but what about Iowa and Mississippi? We need to really up our state and local ground game.

Meanwhile, I wonder if it's possible to have a kind of Underground Railroad to get women in red states to blue ones for reproductive health care? And I'm post-menopausal, so I have no need of it myself, but I think I might buy some Plan B in case someone I know needs it. Maybe that is something we can all do.
posted by Rosie M. Banks at 10:47 AM on June 28, 2018 [30 favorites]

Sharing this public post from a friend's Facebook page as a public service:

From your friendly neighborhood federal law watching, grew up in DC person: Get your IUD now. Get your birth control now and stock up. Get your morning after pills now. Get a passport/government ID/make sure it is up to date. The next term of the Supreme Court is going to see the end of Roe v Wade and a whole host of other things. Ginsburg, Sotomayor, and Kagan will file gorgeous dissents that won't make a damn difference.

Seriously. Go and get the stuff while you can, especially for those that can't and you can share it in your community.

This post brought to you by Kennedy retiring and the balance of the court shifting to the right and staying there for at least 20 years.

And remember that liberal justice Ruth Bader Ginsburg is 85 and liberal justice Stephen Breyer will turn 80 this August. Also keep in mind that the GOP broke the 60-vote Senate tradition so now a simple 51-vote majority can allow the POTUS to nominate anyone they want. Trump may not get reelected in 2020, but if he appoints 2-3 more conservative hardliner justices in their 40′s like Neil Gorsuch, the US will suffer for the next 30-40 years. The current SCOTUS is 4-4 with Anthony Kennedy being the moderate conservative swing vote liberals always hope for. Trump will now make it 5-4 in favor of the GOP and possibly 6-3 or 7-2 by the time we go out to vote in November 2020. Now we’re going to be living with the consequences for a generation, just like how we’re still suffering from Ronald Reagan’s policies in the 1980′s.

Voting rights, LGBT rights, Dept of Ed rollbacks, a whole host of things just went poof.

posted by velvet winter at 10:55 AM on June 28, 2018 [43 favorites]

This is too long to print on a t-shirt, but it's basically the soul-scream of my entire existence today:

An entire generation of reasonables will remember not that Kennedy penned the flowery pro-love language of the gay marriage-legalizing Obergefell v. Hodges, but instead how the Reagan nominee ended his 30-year-long SCOTUS career by taking a steaming dump on public-sector unions, shrugging limply at travel restrictions based on religious prejudice, and gutting voting rights. Moreover, whatever nightmare zealot Donald Trump picks and the Senate then inevitably appoints to takes his seat will taint what remains of his legacy like a blood-soaked sock in a washer load of bedsheets.

(Though I will note, for the record, that the article is wrong in thinking that women are the only target. The wingnut Supreme Court is coming for everybody who isn't a straight, able-bodied, neurotypical cis white man.)
posted by joyceanmachine at 11:00 AM on June 28, 2018 [27 favorites]

Anybody know how to stock up on the morning after pill
posted by schadenfrau at 11:11 AM on June 28, 2018 [2 favorites]

Just go to pharmacy after pharmacy and buy them. You don't need a prescription and you don't have to be a woman to get them.
posted by cooker girl at 11:11 AM on June 28, 2018 [18 favorites]

The wingnut Supreme Court is coming for everybody who isn't ~~a straight, able-bodied, neurotypical cis white man~~ rich.

They are using the striked out part against the rest of those thus excluded. But Alito, Roberts, Kennedy, and until not-so-very long ago, one Tony "T-Bag" Scalia have all consistently favored rulings that help the wealthy become more wealthy.

Thomas can be ascribed no real consistency, since he is insane.
posted by aspersioncast at 11:12 AM on June 28, 2018 [9 favorites]

“In the U.S., you can buy levonorgestrel morning-after pills over the counter without a prescription at drugstores and pharmacies, no matter your age or gender. Sometimes the morning-after pill is locked up or kept behind the counter, so you may have to ask the pharmacist or a store clerk, but you don’t have to have a prescription or show ID. Plan B One-Step usually costs around $40-$50—Next Choice One Dose and Take Action, usually $35-$45.
posted by cooker girl at 11:13 AM on June 28, 2018 [10 favorites]

Trump is clearly in a puppet of a hostile foreign adversary who use their state propaganda channel to mock the United States about how the Russian kleptocracy elected Donald Trump.

Not that it isn't possible, but has anyone levied any formal charges, or provided any concrete evidence of said actions?
posted by tgrundke at 11:15 AM on June 28, 2018 [2 favorites]

From a serious, non-we're all doomed, standpoint, what exactly **CAN** we do? And by that I mean "given the composition of the US Senate and the known behavior of Senate Democrats, what can be done?"

It's all well and good to talk about breaking the Senate's quorum, or denying unanimous consent, but clearly and self evidently the Democrats are not going to do that. IIRC even a single Senator could withhold unanimous consent and thereby gum up the Senate but even supposed firebrands like Harris are not saying they'll do that.

So what do we do?

Clearly we protest, we call our Senators, and so on. But the end result will be Trump appointing a Supreme Court Justice.

What do we do in the short term (that is, from now until 2020), and what do we do in the longer term (that is from 2020 onward assuming a Democratic President) to try and correct the problem?

Again, I'm asking about realistic options. It's nice to talk about packing the Court, but I don't think it's going to happen given the Democrats as they are.

In the short term it looks like trying to find and help extant organizations working to get women in Handmaid states abortions will be much higher priority. They're going to need money, drivers, and people willing to risk felony jail time to smuggle in abortion pills from the free states.

Is that pretty much the limit of our action until 2020?

Afterward, again, it seems very unlikely that the Democrats will oust Trump appointees.

Assuming Breyer and Ginsberg live until Jan 21, 2020 (assuming a Democratic President) should we begin a letter writing campaign begging them to retire so the new Democratic President can appoint their successors?

From 2018 until Jan 21, 2020 does it seem likely that even if the Democrats get a majority in the Senate they will deny Trump a third appointment if a seat opens? Or is it more likely that the Democrats will be "civil" and give him a 6-3 majority on the Court?
posted by sotonohito at 11:18 AM on June 28, 2018 [7 favorites]

steaming dump on public-sector unions

I might have misread things, but I was under the impression that the ruling stated that non-members could not be compelled to pay union fees?
posted by tgrundke at 11:18 AM on June 28, 2018

You can buy the morning after pill on Amazon for $12.50 with free shipping, no ID, no fuss. There are a number of sites that sell abortion pills illegally without a prescription - this paper shows that buying online can be a reasonable option. We are not going to go back to coat hangers in alleys, it is going to be anti ulcer drugs for horses via mailorder, at least for early term abortions.
posted by ChrisHartley at 11:22 AM on June 28, 2018 [23 favorites]

steaming dump on public-sector unions

I might have misread things, but I was under the impression that the ruling stated that non-members could not be compelled to pay union fees?

Yes, that's the steaming dump part -- people in workplaces where unions collectively bargained for the benefits and pay they enjoy get to hitch free rides.
posted by Etrigan at 11:26 AM on June 28, 2018 [14 favorites]

“If the President does it, it’s not illegal.” Back in the Watergate days, we used to hoot at that assertion, because we recognized it as a formula for dictatorship. And we’re a country of laws, not of men, or so said the civics textbooks. In our back pocket was the ultimate argument, the courts. And the Constitution, which with its separation of powers and brokering of functions, protected us from would-be dictators. We slept securely with that knowledge.

So Kennedy, the occasional swing vote on the Court, has retired. Within a few months– probably before the midterms– we will have to come up with answers to the slogan, “If the President does it and the Supreme Court condones it, it’s not illegal.”

The newspapers are all about the likely outcomes for Roe v. Wade. An important liberty was established by that decision, but not the only liberty.

An ironclad Trumpist majority will turn a blind eye to corruption, gerrymandering, voter suppression, the quashing of civil liberties, draconian anti-immigration measures and other devices to ensure that an aging minority of very rich people retains the whip hand in this country. Parts of the Bill of Rights will be declared unconstitutional. Not to be alarmist, but this is extremely bad mojo. Get out and vote while you still have the chance.
posted by homerica at 11:30 AM on June 28, 2018 [11 favorites]

Glamour: The Rise of the DIY Abortion

The good news is, it's a different world than it was back in 1975. We can use the internet to communicate and coordinate. So let's be ready to mobilize to get women the pills they need for safe home abortions and help them travel to legal clinics as necessary. I'm up for volunteering my home in Richmond, Virginia as a stop on the abortion underground railroad.
posted by Jacqueline at 11:31 AM on June 28, 2018 [23 favorites]

You can buy the morning after pill on Amazon for $12.50 with free shipping,

The first question for that item is when it expires, and the answer from the seller is March 2018. Which...is possibly why it’s $13.

Ok. Time to look at actual supply lines.
posted by schadenfrau at 11:37 AM on June 28, 2018 [6 favorites]

A few things removed; let's skip the burgeoning "but let's sort out unions from first principles" thing here.
posted by cortex (staff) at 11:41 AM on June 28, 2018 [3 favorites]

In my teachers union, where people pay ~1.5% of salary for union dues, there is already discussion of opting out, especially since we haven't seen much in the way of raises anyway. As with all of this, it's probably going to have to get worse before it gets better.
posted by anarch at 11:42 AM on June 28, 2018 [2 favorites]

Meanwhile, I wonder if it's possible to have a kind of Underground Railroad to get women in red states to blue ones for reproductive health care? And I'm post-menopausal, so I have no need of it myself, but I think I might buy some Plan B in case someone I know needs it. Maybe that is something we can all do.

This is already happening with the National Network of Abortion Funds who will pay for abortion services, transportation and housing for people who cannot afford it and may not have access in their area. Become a member today. I am.

Also, husband and I are moving up our plans to buy an RV and travel around the country. We were just going to go sightseeing for a year+ but now we have a secondary (actually primary) reason.
posted by Sophie1 at 11:47 AM on June 28, 2018 [24 favorites]

Anybody know how to stock up on the morning after pill?

You can buy a single dose of Plan B (which contains 1.5 mg of levonorgestrel) online from Walmart and have it shipped. There are off-brands that contain the same medicine (AfterPill) also available (sold and shipped from from Walmart online), and their cost seems to be about 50% discounted from Plan B. A single dose of AfterPill is about $22 and a three-pack is about $60.

Standard disclaimer: I am not a/your doctor, so I’m not giving any medical recommendations, of course. However, Planned Parenthood includes AfterPill as one of the brands when they discuss the uses and contraindications of using levonorgestrel as a morning-after pill.
posted by darkstar at 12:03 PM on June 28, 2018 [3 favorites]

So what do we do?

- Pressure your reps to block
- Organise your district and state to vote for progressive candidates
- Link up with and donate work or money to grassroots orgs like the NNAF
- Resist every constitutional rollback through direct action if you have the physical capabilities to do so
- As the clock winds back, look out for and protect those most vulnerable

And so on. There is no one solution and it will take considerable doing. But the common thread in all this is Resist and Protect.
posted by Aya Hirano on the Astral Plane at 12:08 PM on June 28, 2018 [14 favorites]

Bye bye America

Nope.
Let me repeat that a little louder for those in the back. NOPE.

WE are not going anywhere.
Movements are for when we lose, not when we win. And we are moving.

Things may get worse before they get better, but there are those of us out here who are already mobilizing forces. We have lost in the courts before, we will lose again, but there is no fucking way we are going to stop fighting. We are not going to give in to despair or self-pity or paralyzation.

We didn't get the thing we needed. We may not get a lot of things we want and need over the coming years, but we are rising up by the millions for ourselves, for our children, for our futures to fight like hell.

So, NOPE.
posted by Sophie1 at 12:37 PM on June 28, 2018 [90 favorites]

The Supreme Court nomination is the true litmus test for Susan Collins and Lisa Murkowski.Will they continue to put party over the things they profess to believe, and vote to confirm a justice who will blow up every remaining protection for women? I wish I were optimistic.

FWIW, they've both pretty much shrugged and given an "Eh. Waddaya gonna do?" response when asked about the situation. They're voting for Trump's pick.
posted by Thorzdad at 12:37 PM on June 28, 2018 [4 favorites]

Assuming Breyer and Ginsberg live until Jan 21, 2020 (assuming a Democratic President) should we begin a letter writing campaign begging them to retire so the new Democratic President can appoint their successors?

I don’t think a letter writing campaign is necessary. I think they’re just holding on for their relief. Given a Democratic President, I would expect to see them resigning shortly.
posted by corb at 12:40 PM on June 28, 2018 [3 favorites]

Trust me as a constituent: Collins would reluctantly vote in favor of pretty much anything evil. We will do our damndest to get rid of her next time.
posted by selfnoise at 12:43 PM on June 28, 2018 [16 favorites]

Between what's happening now and watching Ken Burns & Lynn Novick's "The Vietnam War", I feel like a constantly depressed time traveller.
posted by Major Matt Mason Dixon at 12:47 PM on June 28, 2018 [3 favorites]

I'm rewatching episode 17 of season 5 of The West Wing right now.
posted by 256 at 1:26 PM on June 28, 2018 [3 favorites]

Assuming Breyer and Ginsberg live until Jan 21, 2020 (assuming a Democratic President) should we begin a letter writing campaign begging them to retire so the new Democratic President can appoint their successors?

That isn't enough. We also need a Democrat-controlled Senate. This is why Ginsburg didn't retire during Obama's second term. It is also why Obama was unable to appoint a justice to replace Scalia.

My fear is that even if there's a vacancy after the midterms, and even if the Democrats take back the Senate, they will be too spineless to block Trump's nominee like the GOP did under Obama.
posted by andrewpcone at 1:41 PM on June 28, 2018 [10 favorites]

Cross thread comment posting from me:

Much of the progressive base is inevitably going to take out their rage not on Trump, but on Democrats for not being able to make the right tactical choices to block him.

I worry about this a lot, especially because most people don't realize that Democrats cannot block Trump's Supreme Court nominee the same way Republicans blocked Obama's. Almost no one understands this, I find myself forgetting, and the media is doing nothing to correct the misunderstanding.
posted by xammerboy at 1:59 PM on June 28, 2018 [5 favorites]

Buying Plan B One-Step has come up. FWIW, depending on eligibility and insurance it may be more cost-effective to get a birth control prescription and stockpile a few months' worth of pills. Followed a Planned Parenthood link to this conversion chart for using regular oral contraceptives as emergency contraception.

If anyone has any ideas re: laying in a decent supply of the abortion pill (mifepristone and misoprostol, aka Mifeprex; RU-486 is the old name), for "a medication abortion up to 70 days (10 weeks) after the first day of [the] last period," please post. For people "8 weeks pregnant or less, it works about 98 out of 100 times. From 8-9 weeks pregnant, it works about 96 out of 100 times. From 9-10 weeks, it works 91-93 out of 100 times."
posted by Iris Gambol at 2:19 PM on June 28, 2018 [10 favorites]

I worry about that too xammerboy, but I also recognize that it's largely a self inflicted (potential) wound.

The Democratic Party has expended a great deal of effort to snuff out all enthusiasm, to smother protests against the status quo, to elevate comity and civility above morality, and generally so frequently avoided doing what it could do to obstruct that it being blamed for one of the times when it genuinely has no ability to do anything is bad, but entirely predictable.

If the Democrats didn't have a record of folding in the face of Republican demands it'd be easier for them to say "look, we hate it but there's nothing we can do".

Especially since we just came out of 8 years of watching a Republican minority in the Senate run roughshod over Obama, and yes I know the Republicans changed the rules on the filibuster, it's not really hard to understand why most people would be under the impression that the Democrats are simply failing to act rather than (for once) being genuinely unable to act.

Personally I hope the rage against the Democrats can be harnessed and directed into primary challenges against the worst of the DINOs.
posted by sotonohito at 2:22 PM on June 28, 2018 [13 favorites]

Called my senators and emailed them for good measure - both have released statements saying that there shouldn't be a nomination/confirmation before the election.

My email:

Thank you for your clear statements that the Senate must not consider a Supreme Court nominee during the few months before the election.

Please also state clearly and loudly that the president cannot have a nominee confirmed until he is fully cleared of conspiring with a foreign government. The Supreme Court is likely to have to rule on whether the president must answer a subpoena and whether he can pardon himself. It would subvert justice to permit such a conflict of interest to occur.

I ask you as urgently as I can to commit to doing EVERYTHING in your power to prevent a nominee from being confirmed, including stopping other Senate business.

Thank you for everything you do.

One of Harris's staffers told me she had made a statement saying there should not be a confirmation until the Mueller investigation is done; I hadn't heard that elsewhere.

I don't know if we can stop a confirmation, but I'm going to try anyway.
posted by kristi at 2:23 PM on June 28, 2018 [9 favorites]

It's really bad. I can't diminish that. I'm quite concerned about a very real turn to very real fascism, complete with mobs of armed thugs roaming our country.

And, as others have pointed out above, the Democratic Party is at serious risk of total collapse, from decades of corporate cooptation, smug demographic determinism, and outright incompetence.

I'm trying to wrap my mind around that being our lot.

But, it's also important to realize that the time in which the left-spectrum could rely on the deus ex machina of court rulings is now officially dead. And that's not all bad. In fact, it's long overdue. It's been, in many ways, an impediment to mass organizing.
posted by mondo dentro at 2:25 PM on June 28, 2018 [6 favorites]

Worth noting that while the usage of expired pharmaceuticals is not recommended, the expiration date listed by the manufacturer is always chosen conservatively. Most drugs remain effective considerably longer than their expiration date, and their true shelf life can depend strongly on storage conditions. Even relatively stable compounds typically benefit from being stored in a cool, dry place. A refrigerator is cool but usually humid, which may offset the benefit of the low temperature. However, pills could be refrigerated in a plastic bag or other sealed container along with a dessicant (e.g., a silica gel pack of the sort that many electronics are packaged with for shipping), and this practice may extend shelf life.

Just in case anyone was thinking of stocking up on drugs that are currently over the counter but might be banned in the future, for their own or others' use.
posted by biogeo at 2:30 PM on June 28, 2018 [9 favorites]

Personally I hope the rage against the Democrats can be harnessed and directed into primary challenges against the worst of the DINOs.

and if your friendly local Democrats are already cool, aren't up for reelection anytime soon, or don't have decent primary challengers, please consider whether your inchoate venting against Democrats in other districts is doing anything constructive or if you're just contributing to an overall atmosphere of "Democrats suuuuuuck"
posted by prize bull octorok at 2:30 PM on June 28, 2018 [15 favorites]

I flagged your comment as excellent, sotonohito. (I'm doing a lot of flagging-as-excellent in the political threads these days! I <3 Metafilter!) I don't want lowered enthusiasm and blame for Dems who don't manage to fix everything all by themselves yesterday, but that's the base for you.

We need more effective Reps and Senators and fewer empty suits who mouth one thing to constituents but only really answer to donors. I am not talking about your Heitkamps and Donnellys who have to walk a fine line to stay elected and are going to be more conservative than we would like - but I am talking about electing your Pramila Jayapals, your Mazie Hironos, and your Alexandria Ocasio-Cortez' where and whenever possible.

As I said earlier, we've counted for far too long on the Court and the Presidency being on our side and were not prepared for the inevitable - that a Republican President would one day be elected (though no one was counting on Trump, I know a Cruz or a Kasich would have made conservative appointments) and one or more of our elderly Justices would retire or die. We were caught flat-footed. Now we have to go back and fix the states and local offices we neglected, because if the court is not on our side, then the governorships and state officials better be.
posted by Rosie M. Banks at 2:31 PM on June 28, 2018 [3 favorites]

Josh Marshall, The Critical Question Facing Democrats and the Court
It's a good argument, and worth digesting. To excerpt:

There’s been a lot of criticism of Democrats pounding the so-called ‘McConnell Rule’ for Supreme Court picks ... Republicans are fully double-jointed when it comes to hypocrisy.
[...]
If a vote on the next Supreme Court Justice is delayed past election day that will likely become a potent weapon to mobilize base Republicans ... the big Senate races are almost all in red, generally anti-abortion rights states.
[...]
There’s probably nothing [much] Democrats can do to stop President Trump and the GOP Senate majority from eventually putting this new Justice on the bench.
[...]
So: Should Democrats really go to war over this SCOTUS nomination when its success is all but assured and delaying may perversely help the GOP? This is a real and significant question that both of the below voices address. But I believe the answer is yes.

posted by RedOrGreen at 2:32 PM on June 28, 2018 [6 favorites]

And, as others have pointed out above, the Democratic Party is at serious risk of total collapse, from decades of corporate cooptation, smug demographic determinism, and outright incompetence.

Sorry, but no. Not that the party hasn't had issues, but right now we're not close to collapse. In fact we're kicking ass in pretty much every election since November 2016. Enthusiasm is at an all-time high , the number of candidates went up 400% and women are winning 50% of House primaries. The Dems In Disarray narrative is bullshit designed to kill enthusiasm and promote discord. We have better things to do than that, like focus on the people who are the primary and driving cause of the problem, Rs.
posted by chris24 at 2:36 PM on June 28, 2018 [42 favorites]

On one of my political podcasts--can't remember which one--someone was floating the idea of increasing the number of seats on the SC. Nothing in the Constitution mandates there are only nine (or whatever number) justices. So it doesn't precludes that Congress simply increase that number to...fifteen? Twenty-one?

Of course, this would mean Democrats would have to be in complete control of things as the Republicans are now, so this is way down the line and a longshot even then. But hopefully by then the dinosaur wing of the Democratic party will be playing golf and the younger members (go Ocasio-Cortez!) will be calling the shots.

Appoint more justices. There's no reason the fate of the nation should balance on just nine people.
posted by zardoz at 2:52 PM on June 28, 2018

I just saw that four of the current Justices were appointed by presidents who did not win the popular vote.

Given that a handful of Dems will likely just go ahead and greenlight the next nominee, it seems pretty pointless to try to lobby Collins, Murkowski, et al.

Other Dems are still wrapped up in tsk tsking over incivility (?!???!?) of all fucking things.

Long term trends of liberals moving to cities, leading to massive overrepresentation of rural areas in Congress, don't seem to be changing. Even though we outnumber them, we can't beat them.

Democrats probably could fix some of these things if we ever get into power again, but they likely won't, because tradition. Or civility or some other bullshit.

I need some good news, guys.
posted by triggerfinger at 2:54 PM on June 28, 2018 [3 favorites]

It might be helpful for some folks to do some venting over here.
posted by blurker at 3:19 PM on June 28, 2018

Obviously, it's not good for the country is the court is stacked with extremist judges for either side. Reinstate the 3/4 vote. Already, I feel like any decision this court makes is invalid. It's not law, not jurisprudence, not adding anything to our collective history of justice. Honestly, who will respect the law this court makes as carefully considered and impartial? No one. It won't be.

I wouldn't want a court stacked with extremist liberal judges who had never voted conservatively in their history as judges. It's another way in which this has simply become the dumbest timeline. It's like gerrymandering making a farce of democracy. It's trashing the institution of law itself for petty party bullshit. Do we really want to set into motion a series of decisions by a court the future will likely dismiss?

What I want to get across is this isn't just a conservative court. This is fundamental breaking of a branch of government. These appointments are like if every congressperson was McCarthy. They're beyond extreme. You see it with the latest travel ban decision. How many more decisions will there be where the Supreme Court disagrees with every other court in the country? How many times will this have to happen before everyone starts regarding them as a farce?
posted by xammerboy at 3:24 PM on June 28, 2018 [8 favorites]

Obviously, it's not good for the country is the court is stacked with extremist judges for either side.

Is that obvious? I'd love a court packed with socialist judges. Because... I'm a socialist.

I wouldn't want a court stacked with extremist liberal judges who had never voted conservatively in their history as judges.

I don't say this to be mean, but only a liberal would be this afraid of accruing power for their own cause.
posted by One Second Before Awakening at 3:36 PM on June 28, 2018 [40 favorites]

Sorry, but no. Not that the party hasn't had issues, but right now we're not close to collapse. In fact we're kicking ass in pretty much every election since November 2016.

Look, I don't know what's going to happen, but I think this greatly misunderstands the depth of the Democratic Party's strategic weakness at this point, and thereby the huge challenges (and opportunities) this poses to the entire left (not to mention the republic, not to mention the planet). I'm not saying this to be negative or defeatist--on the contrary. I'm saying it because we need to understand the (counter) revolutionary nature of the international rightist movement we're up against. It's not just a question of eeking out a win in a few elections and then somehow removing Trump. The right smells blood, and they (meaning, the oligarchic forces that have been plotting and bankrolling this whole thing for decades--really since the New Deal) have no inhibitions against going in for the kill. We are in for a generational struggle, and we have to prepare ourselves for that. Think labor circa 1890. I have always opposed accelerationism, but it's been thrust upon us.

You're right, there's a lot of positive energy on the left now, and we have to work collectively to keep it going. But this energy is something the Dem establishment is still loathe to acknowledge! Just look at Pelosi's poo-pooing of Ocasio-Cortez! The top leadership is only now, very slowly, coming around to see what's happening, and the evidence seems to show that they're still more obsessed with fighting their left flank than they are in stopping fascism. But, absolutely, I do indeed expect many victories this fall. That said, you should read the counter arguments in that Josh Marshall piece that was posted above. The fight over this SC seat is likely to energize the right now, too. The "blue wave" is not by any means a done deal.

Let me use a silly sports analogy, because it's perhaps less scary: the Democrats are currently the worst team in the league. Yes, they just drafted a boat-load of superb rookies, and the fan base is energized. But the team is weighed down by a bunch of underperforming veterans, an incompetent coaching staff, and owners that are making a ton of money even when the team loses. And now the world champions are coming to play a long series that could very well determine whether or not the team is disbanded. To expect the rookies to turn things around on a dime is simply unrealistic. The good news is the rookies will be able to prove themselves and build the skills needed for a future championship-caliber team. And the fans will be able to fall in love with their team once again. The trick will be not getting all of the new recruits injured when they go up against the thuggish opposition in the first few games.

Of course, this is not a game. The stakes are much, much higher.
posted by mondo dentro at 4:17 PM on June 28, 2018 [20 favorites]

I blame the Democratic party for being soulless capitalist cowards, more interested in raking in cash than in progressive politics. The progressives who have recently won their races have won in spite of the party, certainly no because of it.
posted by evilDoug at 4:32 PM on June 28, 2018 [10 favorites]

There's no doubt at all, is there, that Trump will insist on getting from a nominee what he couldn't get from Sessions and Comey? A pledge of personal loyalty and a commitment not to recuse? A promise to vote, and vote in his favor, if and when the questions of self-pardon and presidential indictment come before the court?

He'll say it himself if he thinks he can, just as he vents his outrage at Session's commitment to appearing impartial. "Of course I'm picking a judge who will protect me, now that I get to choose my own. Wish I could have picked a more malleable policeman."
Most of his base, of course, wouldn't be bothered in the least. We'd hear about his wonderful good fortune in getting an opportunity to quash the witchhunt. Many would just revel in a really excellent opportunity to outrage the squares and own the libs.

But while he can probably afford to say those things, I'm not sure a nominee can. Certainly they can't sit before the Judiciary Committee and say "Of course I traded a promise of protection for a job. I wouldn't have gotten it otherwise."

Can they say "Sure, I'll vote, and I'll rule for him. The constitutional question is obvious. I'd rule the same for anyone?" Possibly, but it would look very bad: nominees don't usually admit to having prejudged cases. The precedent for committing to recusal is strong. Normally it's simply assumed that nominees will do the right thing, and if they'd have to recuse themselves from too many cases in their first terms, that's considered a weakness in itself

So we're left with someone who will absolutely have commit to no recusal and a pro-Trump vote to get the nomination, but has to successfully lie about or dodge those questions to appear anything but horribly corrupt in their confirmation hearings.

It seems to me that's a lever. Not a big one, but it's there. If the minority of the Judiciary Committee plans well and executes perfecfectly, they can make either make the nominee commit to recusal, or make it very damned embarrassingly clear to the world what it means they're won't: waft the flatulent stench of Trump's corrupt bargaining around the room until no one can fail to notice it, though half his toadies will call it roses.

Could it be enough to change the outcome? Who knows? Enough to provide cover for the blue-state Dems to keep ranks without losing votes? Possibly. Enough to pry a no vote from
Cornyn or Grassley, with 20+ years of court rulings on the line? Probably not. Enough to flip one red Senator whose reelection relies more on "statesmanship" than Trump-kissing? Tough, very tough, but maybe possible. It seems like it might be the best available chance.
posted by CHoldredge at 7:06 PM on June 28, 2018 [9 favorites]

For those like me who feel the need to DO SOMETHING, herebis an article with some starting points:

“Ironically, we can learn a valuable lesson from the anti-abortion movement, which was preparing to undermine and eventually overturn Roe long before the Supreme Court ever even made its landmark ruling. The time to get to work is right this second, while we wait for a new nominee to be announced, and prepare for a midterm battle for control of the Senate that is now guaranteed to reach epic proportions.

If we wait until Roe is gone, it will be long past too late.” - What to do when - not if - Roe vanishes

For my part I’m in New Zealand. I will personally stock up on every kind of reproductive medication I can get my hands on and cheerfully post it to anyone in the States who needs it. I will continue doing this as long as needed.
posted by supercrayon at 7:10 PM on June 28, 2018 [6 favorites]

Maybe what’s needed is a buyers club similar to what ACT UP organised for people with AIDS in the 80s/90s?
posted by supercrayon at 7:11 PM on June 28, 2018 [5 favorites]

The slow, but now swiftly accelerating collapse of a Republic - precipitated by the Legislature becoming mostly incapable of legislation, willfully shirking their responsibilities regarding war- and treaty-making, only serving to obstruct and to barely legislate that the government continue operating. The unworthy excuses populating the Congress primarily concerned with soliciting bribes to cycle through the Party machinery, to nudge some appropriation this way or that, or to obstruct a little more or slightly less. (If I ever chanced to walk past a member of Congress I would spit on the ground. They shall be remembered as a historical embarrassment, as the Polish-Lithuanian Sejm in the time of the liberum veto.)

The functional abdication of the Legislature increases the burden on the Executive and Judiciary. The Judiciary increases the latitude for interpretation, especially for updating statutes as Congress is now incapable. The Executive becomes imperial, increasingly ruling by edict, asserting new powers. (The Obama presidency established that the President could order extrajudicial assassinations of their subjects, which I hope no one tells Trump about.) W. Bush was foolish, but surrounded by competent though vile advisers, an effective regency. Obama was competent. But the problem with Emperors is eventually you're gonna get a clown. DACA, JCPOA, Paris Accord - accomplished by Obama's edict, easily undone by Trump's, yet meanwhile Trump can barely operate the levers of power himself.

The failure of the Legislature and the elected Executive leaves the unelected Executive mostly rudderless, autonomous, or both - notably I think the military is pretty much running itself now, as long as they deliver some gesture toward a parade and a Space Force, and of course the various spy and secret police agencies seem to have been autonomous for some time.

So it's just the Judiciary functional nowadays, but that's not sustainable. Then what?
posted by save alive nothing that breatheth at 7:24 PM on June 28, 2018 [5 favorites]

OK, this is truly insane now.

Justice Kennedy's son is the banker who routed Russian money to Donald Trump via Deutsche Bank.

NYT Twitter.

I'm agog.
posted by yesster at 7:31 PM on June 28, 2018 [44 favorites]

You guys, if anything has pushed me into the We are living in a simulation, camp of philosophy, the last few weeks have sealed it. Seriously, it's the only thing that makes sense. The system is having everything thrown at it to see where the breakpoint is.
posted by SecretAgentSockpuppet at 8:54 PM on June 28, 2018 [4 favorites]

This must be how Neil Breen feels all the time
posted by theodolite at 9:54 PM on June 28, 2018 [2 favorites]

Folks on this thread who are focusing on whether a Trump-appointed nominee will be biased towards Trump are sort of missing the forest for the trees. A conservative SC appointee (especially if young) will last much, much longer than the Trump administration - and likely be more damaging for many years to come.

And those who say I'm preaching doom and gloom: yes. I am. For good reason.
posted by splitpeasoup at 9:57 PM on June 28, 2018 [6 favorites]

Seriously, it's not quite at the rhetorical absurdity of Reality Winner, but Justice Kennedy's son being named "Just"in and being a factor in this whole farce as a "trusted associate" of Trump is on the short list.

BTW, have I mentioned that Justice Kennedy would occassionally attend church at St. John's Catholic Church in McLean, VA, when it was under the pastorship of Paul Scalia?

It's like lazy Star Wars plotlines, where everything important in the universe revolves around a few dysfunctional families.
posted by Riki tiki at 10:04 PM on June 28, 2018 [19 favorites]

The good news is, it's a different world than it was back in 1975. We can use the internet to communicate and coordinate.

Did you miss the part where we lost Net Neutrality?
posted by panglos at 10:36 PM on June 28, 2018

Well, at least text is low bandwidth.
posted by bootlegpop at 10:46 PM on June 28, 2018 [1 favorite]

In response to some hand-wringing in my family about the "ugly precedent" that might be sent by Democrats packing the court (seriously, #packthecourt, #packthefuckingcourt), I said this:

It turns out there's one of those obscure German words that's perfect in this situation. It means "stubbornly clinging to your principles long after your opponent has abandoned them." The word is losing.
posted by duffell at 3:16 AM on June 29, 2018 [15 favorites]

splitpeasoup: Folks on this thread who are focusing on whether a Trump-appointed nominee will be biased towards Trump are sort of missing the forest for the trees

I'm one of those people, and for the most part you'll hear no argument from me. I mention it only because:

1: I hope it could possibly provide an argument against the nominee that's strong enough to influence the red-state dems and maybe even a relatively-unTrumpian republican. I doesn't give me much hope, mind, but it's the only thing I've heard of that offers any. Despite some tiny hints of support, I don't think there's a single republican senator who will vote no to protect Roe or prevent the rest of what a Trump-picked court will do.

2: I fear that if the dems don't take back a chamber in the fall (this is really going to turn out the repug base, and maybe push some dem voters into despair) and a new Trump justice is in place by then, within 12 months voting restrictions will be so widespread and biased that they won't lose another federal election in my lifetime. At dark moments I even think Trump's professed admiration for totalitarians' extended terms could become a issue: when the dictator-wannabe tells you his plans, believe him.
posted by CHoldredge at 5:22 AM on June 29, 2018 [7 favorites]

(actually, looking at the email I sent, I used the phrase "stubbornly adhering to the rulebook out of principle long after your opponent has abandoned the rules"--which is better, because I damn sure think tit-for-tat is the principled stance at this point.)
posted by duffell at 5:23 AM on June 29, 2018 [1 favorite]

The thing is, the R base is always energized in the midterms. R's show up and vote, with very rare exceptions. We need to get our people to show up and vote. That can overcome any belated R wave - which may or may not manifest anyway.

Seriously, I think people who say "but despair!" "D's won't vote now!" are working for the enemy. They are feeding into the "Democrats in Disarray!" meme that the media loves but isn't usually true.

Enough with the "Dems In Despair" and on with the "Dems Are Determined!" Take a leaf from Kirsten Gillibrand's book and speak up, speak out, get to the polls.
posted by Rosie M. Banks at 5:28 AM on June 29, 2018 [15 favorites]

2: I fear that if the dems don't take back a chamber in the fall (this is really going to turn out the repug base, and maybe push some dem voters into despair) and a new Trump justice is in place by then, within 12 months voting restrictions will be so widespread and biased that they won't lose another federal election in my lifetime. At dark moments I even think Trump's professed admiration for totalitarians' extended terms could become a issue: when the dictator-wannabe tells you his plans, believe him.

I fear this too, and I think it's a really plausible fear.

While we need to have a positive "vote in the midterms because [bringing about better conditions]" message, I think a message to folks with whom we have a real connection needs to be, "The Republicans are looking to install a permanent majority and/or a dictatorship, and once that is in place, it's lights-out". A lot of people did not understand that the past presidential election was playing for the Supreme Court and a lot of them won't understand the enormous power that a far right court will have in this political climate.
posted by Frowner at 5:54 AM on June 29, 2018 [7 favorites]

I'll add a 3. The harder we fight this nomination, for every inch, on every ground, the better. "we just don't have the tools. Lets try not to draw attention to our unavoidable loss" is a horrible strategy.

I have a theory that no scandal sticks to Trump because nothing has time to sink in. He can always conjure up some new outrage to flush it out of the news cycle, like waves of swamp water removing and replacing the filth.

Trump as chessmaster is laughable, but after the Mexican restaurant dinners and "I don't care" coats I begin to think this is deliberate. Even he has to see how well it works now. Worse, most of the media strives for fake "balance," and most of his opponents have very little that can plausibly be spun as scandal. So to "balance" his constant rain of new outrages, they keep returning to the same few bullshit allegations about his opponents, beating those hollow drums until it could almost sound like there's something there.

The thing is, maybe I'm foolish, but I'm not sure even he can come up with something vile enough to permanently push this aside: "Look at this corrupt nominee. Look at this compromised process. He (it's Trump: let's be real here) is going to guide your country with his stained hands for the next 20, 30, 40 years)" Sure, ring-kissing in Finland will push it from the headlines completely, but if the minority is clever had determined they can push it right back.
posted by CHoldredge at 6:25 AM on June 29, 2018 [11 favorites]

Here's a post from March 2017 talking about the Kennedy and Trump connection which also digs up that after he left DB Justin Kennedy started LNR which helped bail out the Kushner's in the 2000's.
posted by PenDevil at 7:07 AM on June 29, 2018 [7 favorites]

The harder we fight this nomination, for every inch, on every ground, the better.

The GOP learned from the Tea Party in 2009-2010 that getting people riled up imparts momentum even if you lose. Sure, some people get discouraged and give up on the first Wednesday in November, but some stay.
posted by Etrigan at 7:38 AM on June 29, 2018 [12 favorites]

getting people riled up imparts momentum even if you lose

This fucking meltdown and the whirlwind to come is certainly encouraging me to think expansively about possible responses. Which is what I am trying to focus on, because while the doom and dread is real it's not productive.

But, just the same, we need to be very clear-eyed that "losing" here isn't like "losing" in previous policy debates.

Part of "losing" is going to mean both active voter disenfranchisement, and the removal of protections against passive voter suppression. It will mean the loss of medical care, food support, protection against employers, protection against exploitative lenders and asset forefeiture or outright criminalization by corrupt law enforcement that allow people to have time and resources to give a shit about politics, let alone support the left monetarily. It will deprive women of the control over their bodies and lives that helps them be full citizens, and so more economically and politically active and effective.

The racist, misogynist, xenophobic right know they can't win fair and square. They committed to a willingness to destroy the basic design of the American republic decades ago. Their way, or no way. We didn't take it seriously enough, and here we are.

Talk of an actual civil war is basically nonsense, and even talk of forms of insurrection breaking out are premature. And we, on the left, should not relish them. Trying to balance out the gun ownership numbers some might be a good idea at this point, but any actual confrontations will not go well for the left, cast in the anti-government role (think, Reichstag fire).

But, make no mistake, we are entering a time of tribulation that will have existential consequences for future of civil society, democratic government, human rights and the rule of law in the United States of America.
posted by snuffleupagus at 8:00 AM on June 29, 2018 [6 favorites]

In lieu of despair and/or debating its merits, I'd suggest finding the nearest protest tomorrow against family separations and attending it.

I can't emphasize that enough. Yes, things feel shitty. Do something. Anything. Doing something will feel better than nothing. Even if it's not about the Supreme Court. Doesn't matter. Go, and if you can't go, spread the word to those who can.

Also if anyone can give me suggestions for what to put on a protest sign I'll gladly take them because I'm a wordy bastard and everything I think of seems too long to write large on a poster board and Google is failing me.
posted by scaryblackdeath at 8:12 AM on June 29, 2018 [8 favorites]

That isn't enough. We also need a Democrat-controlled Senate. This is why Ginsburg didn't retire during Obama's second term. It is also why Obama was unable to appoint a justice to replace Scalia.

While the Democrats are unlikely to get the Senate in 2018, a Democratic president will arrive at the earliest 2020. And that year's Senate election schedule has the GOP defending many more seats than they are in 2018.
posted by a snickering nuthatch at 8:14 AM on June 29, 2018

Also, I think the reporting on Kennedy is underplaying that the other thing the Court did right before his announcement was voting to grant certiorari in Gamble v. US, on the issue "whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause." Which has implications regarding state prosecutions after a Presidential pardon.

n.b.: votes on cert aren't public. Here's some backround on the "rule of four," which like a lot of the supposed "rules" protecting our democracy is in actuality a mere tradition.

It will be interesting to see if that, too, goes out the window next term.
posted by snuffleupagus at 8:14 AM on June 29, 2018 [3 favorites]

Poll: Nearly 70 Percent of Voters Don’t Want Roe v. Wade Overturned
posted by maggiemaggie at 8:18 AM on June 29, 2018 [11 favorites]

Poll: Nearly 70 Percent of Voters Don’t Want Roe v. Wade Overturned

This just came out, but was polled before the Kennedy announcement. It'll be interesting to see if the move from abstract concept to probability increases support.

Every demo except Republicans overwhelmingly support Roe. And even among Rs, it's just 53-43 against.
posted by chris24 at 8:24 AM on June 29, 2018 [1 favorite]

"even talk of forms of insurrection breaking out are premature."
What do you define as insurrection? Hard pickets around ICE offices? Left-controlled states refusing to recognise federal laws around birth control & deportation? These could all be considered insurrection.

I'm not going to argue against an electoral strategy here, but you also have to be aware that, if things do turn for the worst as so many are worried, your options that are 'legal' as such will only continue to shrink.
Obviously armed insurrection as such is patently not an option for your left. Yet insurrection, with an intent to non-violence but a willingness to respond to the lower-level violence they face, may end up being your only option.
Don't pull an Sozialdemokratische Partei Deutschland-type move and stand there arguing about coalitions, appeasement and primary challenges and restraining more serious actions until it's too late, while fascism is enacted around you.
posted by AnhydrousLove at 8:26 AM on June 29, 2018 [5 favorites]

Enough with the "Dems In Despair" and on with the "Dems Are Determined!" Take a leaf from Kirsten Gillibrand's book and speak up, speak out, get to the polls.

Gillibrand has been promoting for as long as I remember. Off The Sidelines

Get off the sidelines

Off The Sidelines is Senator Kirsten Gillibrand’s call to action for women to make their voices heard on the issues they care about. Women have the power to shape the future – it’s just a matter of getting off the sidelines and getting involved.

https://offthesidelines.org/take-action/run-office/
posted by mikelieman at 8:33 AM on June 29, 2018 [4 favorites]

What do you define as insurrection?

Fair enough. I'm talking, in the general sense, about acts chargable under 18 USC 2383. Comitted by armed organizations (whether official or underground) that characterize themselves as some kind of Resistance formation. Note that conviction under that section comes with a lifetime bar from holding Federal office.

More specifically, I'm talking about shootouts. That the Bundys got away with it is, in this twisted decade, evidence that the left will not. See also the governments responses to the non-violence at Standing Rock or the unrest in Ferguson.
posted by snuffleupagus at 8:34 AM on June 29, 2018 [1 favorite]

We are in for a generational struggle, and we have to prepare ourselves for that.

You should disabuse yourself of the belief that it was ever anything but a generational struggle. It is always going to be a generational struggle. If anything, a generational struggle undersells the duration. Because, as the man said, the arc of the moral universe is long. It bends towards justice, but does so because people push on it.

I guess some people find that to be cause for despair. Personally I find it somewhat liberating, and the conclusion obvious. There will always be work to do. Some of it, if not all, will be of immediate urgency to someone and if you don't see the urgency it is just a question of perspective and luck.
posted by phearlez at 8:34 AM on June 29, 2018 [9 favorites]

With the news that Kennedy’s son was the banker at Deutsch Bank that helped Trump obtain Russian loans — meaning Justice Kennedy’s son appears to have helped Trump launder money for Russian interests, and is most likely a subject of the Independent Counsel’s investigation — I’m going to reproduce part of a comment I made in the megathread, and then add to it.

Did Anthony Kennedy just become a subject of the Mueller investigation?

Further: we can’t stop a SC appointment. But we can make it absolutely politically toxic for the GOP for the four months leading up to the midterms. Hammer the corruption angle all day, every day.

He muscled a Justice into retirement using dirt he had on the Justice and his family so that he could appoint a Justice who would exonerate him.

This is a simple story. It doesn’t require detailed or complicated knowledge of the state of the investigation. This is a story anyone can understand, that can be told in a 10 second sound bite on television, over and over and over again.

Concerns about energizing the GOP base represent a misunderstanding of the moment and a failure of commitment. It is the weakest possible hedge.

The GOP base will be energized. It’s what they do. They get worked up by a well oiled propaganda machine that has no connection to reality. If not the Supreme Court, then lies about immigrants and crime. Nothing we do, nothing that happens in reality, can control what the GOP base does.

What we can do is fucking fight. We can energize our own base. We can tell everyone who is not already a rabid racist MAGAhat that this is it. The midterms are our chance to stop the rise of fascism, and what we have to do to stop it is show the fuck up.

And you get people to show up by fighting. Who wants to show up for some milequetoast hedging nonsense about tactical failure? No. You fight. You show people that you will fight for them by fighting for them, and then they show up for you.

This Supreme Court seat is the fight. We fight this all out, knowing we will almost certainly lose, and knowing it will drive a bigger win in November.

We fight.
posted by schadenfrau at 8:39 AM on June 29, 2018 [35 favorites]

‘Eleven Justices’ is the next ‘Abolish ICE’

But members of Congress are not elected to be polite. They are elected to exercise power, a fact well understood by McConnell ― who blocked Obama nominee Merrick Garland. The Senate majority leader didn’t hesitate to demand the speedy confirmation of whomever Trump picks to succeed Kennedy.

The choice between court-packing (in 2021) and international fascism should not be difficult. Democrats can’t get their ends ― a decent society of mutual respect and shared prosperity ― by ignoring the means of power. Playing nice with fascist enablers in Washington will not stop fascism.

(emphasis mine)
posted by mondo dentro at 12:13 PM on June 29, 2018 [19 favorites]

Here's a bizarre thought... could we develop various methods of administering abortion medication, for example via jet injectors, and have blue states enact laws defining those systems—the medication and device together—as types of firearms protected by the 2^nd amendment? And then use all of the legal scaffolding set up by the right to sabotage any steps towards gun control and towards otherwise reducing the level of firearms deaths, and the measures to prevent tracking of who owns firearms, to drag out lawsuits and appeals over years and years during which some specific forms of abortion would be instrumentally protected?

I wonder, if it was done properly, if we could end up with better footing both against anti-choice legislation and on gun control, as the "oh gosh, it's so super-duper difficult to define what a firearm protected by the 2^nd amendment is!" people would eventually be made to concede that it's not actually very hard.
posted by XMLicious at 1:21 PM on June 29, 2018 [2 favorites]

Intentionally classifying an abortion device as a lethal weapon is a terrible terrible idea.
posted by snuffleupagus at 1:37 PM on June 29, 2018 [17 favorites]

The key problem with Democrats' mooting court packing as a legit tactic is that the GOP has everything they need to start packing right now. They could easily pass a law to allow any additional number of justices they might want. Why shouldn't they?

I think it would be good to try to build support for measures that would improve the long-term health of SCOTUS, in descending order of importance.
1. Reapportion the House to one rep per 500K constituents; this fixes the Electoral College and makes it far less likely that a president is elected without a popular majority (so we avoid this 4-justices-appointed-by-presidents-without-popular-majority problem).
2. Impeach Thomas already.
3. Constitutional amendment to clarify "advise and consent" to prevent the McConnell maneuver.
4. Constitutional amendment to impose a twenty-year (or so) term limit for Justices to reduce the tradeoff the president currently faces between selecting someone experienced and someone who will exert their influence for a long time.
posted by a snickering nuthatch at 2:19 PM on June 29, 2018 [8 favorites]

Intentionally classifying an abortion device as a lethal weapon is a terrible terrible idea.

Apart from the fact that we're talking about a future when—according to you up above—women will no longer be full citizens, and so worrying at that point about rocking the boat too much by doing anything that could theoretically result in a shift of the rationale behind the prohibitions on abortion seems odd, I feel like I'm missing something here: aren't there already fetal homicide laws in almost every state and at the federal level? I guess I should have specified that the objective would be to keep the sale and possession of abortion medication available and legal like the stockpiling discussed above, rather than a means to keep abortion itself legal.

It also seems worth noting that it apparently isn't actually established yet (PDF) whether the second amendment applies only to lethal firearms or even only to firearms. In case they decide to outlaw private ownership of pepper spray and tazers to crank up gun sales or something.
posted by XMLicious at 3:57 PM on June 29, 2018

It's not about "rocking the boat," what does that even mean? Note that the linked wiki article notes that the Federal law was criticized as a "step towards" granting legal personhood to fetuses. There is nothing to be gained from intentionally running towards that idea.

The notion that pro-gun pro-lifers will somehow find this to be an intractable dilemma and not just keep acquitting Zimmermans while convicting abortion patients or practicioners is wrong. The right does not give a shit if it seems consistent or even coherent. They're running on pure animus, not actual ideas.

There are ways to put them to certain dilemmas, like turning their states rights absolutism against them, and we should do that. (Or, on guns, the lesson from the Black Panthers.) But this won't work like that.
posted by snuffleupagus at 4:13 PM on June 29, 2018 [4 favorites]

So I've been lying awake pondering the midterms. With the Supreme Court in Republican hands, could they be nullified?

I mean Trump has been going on about voter fraud, so couldn't that be used as "justification" for legal challenges to any race where a Democrat wins? And then we'd get a bunch of 5-4 decisions in favor of the Republican candidates? Then with a filibuster-proof 60-vote majority in the Senate, the Republicans could pass whatever legislation they want.

I keep telling myself they don't control the court that much, but I can't think of a reason they wouldn't try. And damn it, Republican Congresspeople just look to sanguine about November.
posted by happyroach at 4:41 PM on June 29, 2018 [1 favorite]

It's not about "rocking the boat," what does that even mean? Note that the linked wiki article notes that the Federal law was criticized as a "step towards" granting legal personhood to fetuses. There is nothing to be gained from intentionally running towards that idea.

I'm still not clear whether I have a misunderstanding here: those articles and their citations appear to indicate that someone can already be charged with homicide for killing a fetus. No need to run towards it, we've already been there for more than a decade. And we're talking about a situation where the existing exemptions for abortion have been removed.

So at that point the risk you seem to be guarding against is the PR cost of publicly juxtaposing the concept of abortion and not-even-necessarily-lethal firearms, which is a vanishingly small negative—i.e. nothing at all like capsizing the boat.

I mean it's a silly idea on my part but we aren't going to get very far "think[ing] expansively about possible responses" while limiting ourselves with worrying about appearances to that degree—all the more so because "[t]he right does not give a shit if it seems consistent or even coherent."
posted by XMLicious at 4:57 PM on June 29, 2018

Maybe I'm missing your point. What do you think the upside of selling an abortion device as a firearm is? In plain language.
posted by snuffleupagus at 4:58 PM on June 29, 2018

Assuming it were to check out with legal specialists as a viable possibility, the upside would be leveraging the virtually-unlimited protections for possession and sale of firearms to achieve a parrying retreat to temporarily keep abortion medications legal for possession and sale.

A silly idea, as I said, but as your statements about the direness of the position we're in indicate, something equivalent to setting a bunch of derelict ships on fire and pushing them out to sea to stop the Spanish Armada could be worthwhile.
posted by XMLicious at 5:08 PM on June 29, 2018

The thing is, they don't conflict that way. Buying a gun is protected under the 2nd Am. Shooting a pregnant woman and killing the fetus is chargeable as murder under such laws. By making a medical device into a firearm intentionally, you just make it easier to charge an abortion provider the same way as an actual killer. So again, not a good idea. Doing their work for them. As with most forms of accelerationism. The ships you want to push out to sea are filled with vulnerable people.
posted by snuffleupagus at 5:10 PM on June 29, 2018

Guys, “abortion gun: yay or nay?” is starting to feel kind of derail-y.
posted by schadenfrau at 5:18 PM on June 29, 2018 [16 favorites]

Wouldn't packing the court backfire if it just allows Republicans to nominate even more conservative justices?
posted by Apocryphon at 7:13 PM on June 29, 2018 [3 favorites]

Wouldn't packing the court backfire if it just allows Republicans to nominate even more conservative justices?

Potentially. But the alternative may be a right wing Court for decades to come. If the Dems did it upon regaining control, it could be framed as restoring balance. If the GOP does it to permanently wipe out the independnence of the judicial branch, they can't frame it as anything but an attack on the separation of powers.
posted by snuffleupagus at 9:07 PM on June 29, 2018

Also if anyone can give me suggestions for what to put on a protest sign I'll gladly take them because I'm a wordy bastard and everything I think of seems too long to write large on a poster board and Google is failing me.

* Family Values Means Keeping Families Together
* [Picture of Winter Soldier] Bucky Says: No More ICE
* Summer Plans: Crushed ICE
* [Picture of Mr. Rogers] ¿No serás mi vecino? (Won't you be my neighbor?)
* ¡Ningún ser humano es ilegal! (No human is illegal)
* All Are Welcome Here - Todos Son Bienvenidos Aquí
* [stacked, with first letters emphasized]: Stop Incarcerating Children Everywhere
posted by ErisLordFreedom at 12:58 AM on June 30, 2018 [3 favorites]

Rather than "packing the court," could a case be made for making the court more efficient by trimming the number down to seven? And, out of fairness, we'd have to take seniority into account so...?
posted by SPrintF at 6:19 AM on June 30, 2018 [1 favorite]

chris24: Enthusiasm is at an all-time high , the number of candidates went up 400% and women are winning 50% of House primaries.

I just looked up the results for the rest of my state's recent primaries. as i was scrolling through the democratic party results for the state senate and house primaries, i noticed a whole bunch of races in which a woman ran against a man and won. so many, in fact, that i went back and counted from the beginning- turns out, in races where a woman and a man were running, the woman won EVERY TIME.

the only way men were winning is if they were only running against other men.
posted by robotdevil at 6:56 AM on June 30, 2018 [15 favorites]

Rather than "packing the court," could a case be made for making the court more efficient by trimming the number down to seven? And, out of fairness, we'd have to take seniority into account so...?

If that's more than a lark, you'd have to first impeach two. Possibly Thomas on manifest incompetence or dereliction of the basic role of a justice, and Gorsuch on the circumvention of process in his appointment. Or whoever gets on next, depending on how that goes. And I think it looks worse than an expansion in terms of integrity. Better to be both ruthless and righteous if possible.

Also, everyone talks about Ginsburg holding on. Well, Breyer is about to turn 80. Thomas is ten years younger. This could get worse yet.
posted by snuffleupagus at 7:22 AM on June 30, 2018

If you’re considering packing the Court you may as well talk about impeaching certain justices; the political and legislative hurdles are just as high and at least impeachment actually has a place and a history in the system (although not with Supremes).
posted by notyou at 7:29 AM on June 30, 2018

Anything is better than nothing. Expansion seems like the better play, but that's just my sense of it. Although, from a functional perspective, an expanded court sounds better than a collapsed one. SCOTUS' pace is already glacial enough.
posted by snuffleupagus at 7:34 AM on June 30, 2018 [1 favorite]

Since we’re dreaming; impeach Gorsuch and whoever comes next, maybe Thomas, too, for kicks, and replace with two Sotomayors and one RBG.
posted by notyou at 8:22 AM on June 30, 2018 [2 favorites]

We would need 51 Senators and a democratic president to do this, right? And, technically, what formation of the supreme court would vote on whether it was constitutional? Would a case have to reach them from the lower courts before they voted on it? Would this give us time for the additional justices to be seated? Would these new justices have anything beyond morality and appearances forcing them to recuse themselves from the vote and leaving it to the 9?

I thought that this had been settled with Roosevelt, but it seems to have never gotten far enough for any body to rule on it as a concept in such a way that precedent would be established that would make it unconstitutional.

If I was going to do it, I would consider doing it based on the population growth. The court settled on 9 justices in 1869. There were 38.6 million citizens in 1870. Our population is now 325.7 million. If I'm not being stupid about math, that means that there are 743% more people. Consequently, there should be close to 743% more important legislation that needs to be analyzed by this body. That being the case, they should be given 67 additional justices to give them the appropriate manpower to give each case the same amount of attention.

Of course, no one will go for this, but would say 27 be so bad?
posted by bootlegpop at 9:47 AM on June 30, 2018

Of course, aren't the republicans a mere 1 or 2 states away from being able to call a constitutional convention? I imagine that the backlash to even packing the court by 2 would give them enough state legislatures to just destroy the constitution.
posted by bootlegpop at 9:52 AM on June 30, 2018 [1 favorite]

That's why a court packing maneuver would need to be immediately followed by legislation that permanently removes the ability for a far-right extremist minority party to legislate like they've got a majority. Expand voting rights and close up avenues Republicans have been using to cheat. Force them to become a normal political party instead of a fascist death parade.
posted by One Second Before Awakening at 9:57 AM on June 30, 2018 [1 favorite]

Legislation to "permanently removes the ability for a far-right extremist minority party to legislate like they've got a majority" could simply be removed the next time the Republicans get a majority. There is no permanent outside of constitutional convention. And honestly, given the numbers, a Constitutional Convention is not something to hope for.

Likewise, impeaching Supreme court judges simply means the Republicans impeach Supreme Court judges when they get into power

Honestly, the best we can hope for is periods of stalemate over the next 25 years.
posted by happyroach at 11:42 AM on June 30, 2018 [3 favorites]

Well, what I had in mind was a set of laws that make it vanishingly unlikely that the current Republican party will ever gain a majority again, forcing them to either totally reconfigure their party or fall to a new replacement party. Or instituting a system that makes third parties more viable. There are a lot of options that could stop or reverse our country's current course where our politics and laws inexorably ratchet ever to the right.

This is almost not even worth talking about though, since it's so unlikely that the Democratic party will ever rock the boat in the slightest.
posted by One Second Before Awakening at 11:48 AM on June 30, 2018 [2 favorites]

Mr. Nat looked up an interesting statistic yesterday— the last time a Republican majority senate confirmed a Supreme Court justice appointed by a Democratic president was in Cleveland. As in Grover Cleveland, in 1895; the justice was Rufus Peckham.

So intransigence here is not exactly new. (There are of course many instances of the reverse, when a D senate has confirmed an R president’s appointment).
posted by nat at 4:15 PM on July 1, 2018 [3 favorites]

You needed to start on that about twenty years ago. Honestly, I feel like I'm in the tale of belling the cat, only I'm the mouse saying "Guys, we're already in the mouth of the cat."

Once the government is captured by an authoritarian regime, plans to prevent an authoritarian regime from coming to power are a little late. Before we talk about expanding the court, how about asking whether there's anything stopping the Supreme Court in November from either nullifying the midterms or giving them to the Republican candidates.

That's what I'm concerned about right now. Anything else I'm putting off to the dream of a future 10-40 years from now when we have power again.
posted by happyroach at 4:21 PM on July 1, 2018 [6 favorites]

someone should sell red hats that say Make America Gilead Again
posted by miyabo at 9:10 PM on July 1, 2018 [1 favorite]

Kennedy, The Magic 8-Ball Justice, John Holbo

Some readers are failing to appreciate the aptness of my Kennedy-as-Magic-8-Ball analogy. In some cases this may by due to infirm powers of reading or reasoning; in other cases, to ignorance of the law, or of recent legal history. In some cases it may be due to insufficient familiarity with a children’s toy. No matter, I shall explain.

The Magic 8-Ball has 20 possible responses: 10 positive, 5 hazy or non-commital, 5 negative. And that is what Kennedy was. Half the time a rock-ribbed conservative, but half the time either liberal or hazy.

Thus, the following would be one way to keep the Supreme Court above the partisan fray, post-Kennedy, while acknowledging the power of partisanship, and according the sitting President a certain privilege when it comes to determining the make-up of the court.

Let Republicans appoint 4 justices and Democrats appoint 4 justices. The 9th justice will be, literally, a Magic 8-Ball.

posted by the man of twists and turns at 9:25 AM on July 2, 2018 [3 favorites]

Once the government is captured by an authoritarian regime, plans to prevent an authoritarian regime from coming to power are a little late. Before we talk about expanding the court, how about asking whether there's anything stopping the Supreme Court in November from either nullifying the midterms or giving them to the Republican candidates.

Even so - and I agree that this is a formerly unimaginable but now real possibility - the best protection against it is organizing. The only real reason that the GOP won't nullify elections/stage a coup/etc is the belief that doing so will cause mass unrest, resistance from governors and mayors, etc. This is a big country and the capital is both on a coast and not the economic center - it's not like you can just seize the capital and handle everything else with a few troops.

I don't mean that everyone needs to be ready to pick up arms. Capital - the money kind - is very flinchy. The prospect of nationwide strikes and unrest, serious economic resistance from California (which would happen - Silicon Valley isn't full of lovely people, but they won't want to become Gilead), god knows what going down on the eastern seaboard where there's a high concentration of liberal and left people clustered in big economic centers....That's not going to make the markets happy.

The best things we can do between now and elections are pretty much what we've been doing - working on turnout and election stuff and working on mass issues that mobilize people in general. The more accustomed people are to taking to the streets, the readier they'll be to strike or riot if elections are nullified or thrown in an obvious way.

Remember how hard the state will work to suppress even little, tiny acts of dissent. If the state is going to crack down on very, very minor resistance, that's because even minor resistance threatens them.

I mean, these are fucking terrifying times and I feel that we're poised at the edge of a cliff. But I truly believe that with sufficient struggle, we can avoid going over.
posted by Frowner at 9:35 AM on July 2, 2018 [11 favorites]

The Secrets of Leonard Leo, the Man Behind Trump’s Supreme Court Pick (Jay Michaelson, Daily Beast)

When President Donald Trump nominates a justice to the Supreme Court on Monday night, he will be carrying out the agenda of a small, secretive network of extremely conservative Catholic activists already responsible for placing three justices (Alito, Roberts, and Gorsuch) on the high court.

And yet few people know who they are—until now.

At the center of the network is Leonard Leo of the Federalist Society, the association of legal professionals that has been the pipeline for nearly all of Trump’s judicial nominees. (Leo is on leave from the Federalist Society to personally assist Trump in picking a replacement for Justice Anthony Kennedy.) His formal title is executive vice president, but that role belies Leo’s influence.

Directly or through surrogates, he has placed dozens of life-tenure judges on the federal bench; effectively controls the Judicial Crisis Network, which led the opposition to President Obama’s high court nominee, Judge Merrick Garland; he heavily influences the Becket Fund law firm that represented Hobby Lobby in its successful challenge of contraception; and now supervises admissions and hires at the George Mason Law School, newly renamed in memory of Justice Antonin Scalia.

This is fine.
posted by Johnny Wallflower at 1:06 PM on July 9, 2018 [3 favorites]

Brought to you by Jay Pinho and Victoria Kwan, the co-creators of SCOTUS Map:

SCOTUS Watch tracks the public statements made by United States senators about how they plan to vote on the Supreme Court nominee, and tallies them into a likely vote count. This tally is based solely on their statements: we do not make estimates or guesses based on a senator's party affiliation or ideology.

Note that this only includes statements made by senators after the identity of the nominee is announced. (So, for example, Senator Doug Jones' statement to CNN on Sunday, July 8th would not count, as the nominee had not yet been announced.)

posted by Johnny Wallflower at 5:39 PM on July 9, 2018 [1 favorite]

Brett Kavanaugh Is Trump’s Supreme Court Nominee.
posted by Iris Gambol at 6:19 PM on July 9, 2018 [1 favorite]

And it's Brett Kavanaugh, who looks exactly like a guy who missed out on the role of the Trump-appointed judge from The Good Fight for "looking too much like an obvious toady."
posted by MarchHare at 6:20 PM on July 9, 2018 [2 favorites]

"I will tell each senator that I revere the constitution. I believe hat an indent pent judiciary is the crown jewel of our constitutional Republic."

So Trump picked a craven opportunist who will tell people whatever they want to hear to get his way? Yeah, that checks out.

(and though I'm sure it's just the Guardian living up/down to its reputation here, it would also not surprise me if this was directly copy-pasted from a typed statement)
posted by MarchHare at 6:27 PM on July 9, 2018

A President under investigation for colluding with a foreign nation to interfere with an election should not be allowed to appoint someone to the Supreme Court who may ultimately sit in judgment about whether he can pardon himself. - Sen. Jeff Merkley, D-Ore.
posted by Iris Gambol at 6:31 PM on July 9, 2018 [8 favorites]

Brett Kavanaugh could take an ax to Obamacare (Dana Milbank, WaPo)

Hours before President Trump revealed his Supreme Court nominee Monday night, the White House made a curious announcement.

A Trump spokesman said that the “Sherpa” charged with leading Trump’s nominee to confirmation in the Senate would be former Republican senator Jon Kyl, a big-time lobbyist for the pharmaceuticals industry.

Why would the White House put the nomination battle in the hands of a man who famously mocked the Affordable Care Act’s requirement that health insurance cover maternal health by saying “I don’t need maternity care” — and who as recently as last year was a lobbyist for those fighting to keep drug prices high?

Now it makes sense. In tapping Brett Kavanaugh to be his second nominee to the Supreme Court, Trump has guaranteed that health care will be at the center of the confirmation fight.

posted by Johnny Wallflower at 8:25 PM on July 9, 2018 [1 favorite]

So from a quick glance at twitter, Brett Kavanaugh was one of the Starr Report lawyer/writers.

Geez Louise another horror from Bill Clinton’s legacy.
posted by notyou at 10:52 PM on July 9, 2018 [2 favorites]

And also he was part of the Bush campaign’s Florida recount team. Lots of avenues for questioning!
posted by notyou at 11:17 PM on July 9, 2018 [3 favorites]

The Starr report thing is so weird. You'd think Trump would be inclined to avoid someone who was involved in going after Clinton in the Lewinsky affair, given the witch hunt mantra and Giuliani's maneuverings to keep Trump off the stand.
posted by snuffleupagus at 5:55 AM on July 10, 2018 [1 favorite]

Naah, Kavanaugh has since announced that he believes (Republican) Presidents should be immune from all investigation into their crimes.
posted by sotonohito at 6:12 AM on July 10, 2018 [4 favorites]

I don't think we can assume that Trump is thinking that strategically, he just needs to ensure that all three branches of government will let him get away with whatever he's doing. He wanted a Court that will 1) decide in his favor when the shit hits the fan, and 2) allow him to get away with going after political enemies, starting with the Clintons. Looks like Kavanaugh fits the bill on both accounts.
posted by zombieflanders at 6:13 AM on July 10, 2018 [3 favorites]

In How Brett Kavanaugh Will Gut Roe v. Wade, Slate's Mark Joseph Stern argues from Kavanaugh's deceptively middle-of-the-road opinion in the D.C. Appeals Circuit case of the pregnant undocumented immigrant minor Jane Doe vs. Trump's HHS on how he may rule at the Supreme Court in abortion cases. The states' rights path has worked so far for conservatives to cut off abortion access, and Kavanaugh's phoney restrained ruling sets a precedent for his abetting this.
posted by Doktor Zed at 6:39 AM on July 10, 2018 [2 favorites]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh (his former law clerk) Kennedy felt comfortable retiring.

Furthermore, the five names Trump added to his list of Federalist Approved judges last November was to get Kavanaugh on that list. The other four names were considered cover, per source. In other words: the decision has been baked for a while.
posted by Sophie1 at 7:15 AM on July 10, 2018 [13 favorites]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement.

More reason for term limits. As if one lifetime appointment isn't enough, now they're picking their replacements.
posted by chris24 at 7:34 AM on July 10, 2018 [9 favorites]

The simple solution is that the president gets to pick a replacement once a justice hits 70 1/2. The justice can stay on the court but they can't use their retirement as a political weapon.
posted by Definitely Not Sean Spicer at 7:42 AM on July 10, 2018 [1 favorite]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement.

While ruling in Trump's favor in every case this term. Kennedy is one of the most corrupt Justices to ever sit on the bench.
posted by T.D. Strange at 7:47 AM on July 10, 2018 [13 favorites]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement.

The sourcing on that NBC report seems pretty weak. But, WH spokesperson, Raj Shah just emphatically non-denied the story (twice). Not even a "well that's just ridiculous". Instead he says (twice, almost verbatim):

"I'm not going to readout private conversations that may have occurred between the President and Justice Kennedy..."

posted by pjenks at 7:55 AM on July 10, 2018 [3 favorites]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh (his former law clerk) Kennedy felt comfortable retiring.

Eh. This links to an article by a Krassenstein. Not exactly a reliable source. Huge grains of salt should be poured over it until the slug melts.
posted by dis_integration at 7:56 AM on July 10, 2018

Whoops, posted my comment on Doktor Zed's link to the wrong thread.

I think Slate is being foolishly over optimistic if it believes that the new Supreme Court will be content to merely gut Roe but let the ruling theoretically stand.

Roe is two things: it's an actual Supreme Court ruling but more important it's the symbol of all that is evil and vile in the world to the Republican base. They will not accept merely making it a hollow mockery, they want it gone.

More to the point though, ruling that Roe was wrongly decided and overturning it entirely does several things for the Republicans. First, of course, it means they can stop dancing around and just ban abortion on a state by state basis. But, much more important, it sets the stage for a national abortion ban. For that last they absolutely need Roe completely overturned and abortion no longer a Constitutional right.

There is no way the "pro-life" people will be content to ban abortion in Texas and Alabama but let it be legal in California and New York. They want it banned nationwide, and I see no reason at all to imagine they won't succeed in that.
posted by sotonohito at 8:08 AM on July 10, 2018 [7 favorites]

Negotiating for a replacement sounds like another violation of one of those "norms" that isn't exactly a law, which we all get to regret now.

The timing of this sure does stink of Kennedy selling his vote on the Muslim ban to secure a replacement, which is utterly unforgivable.
posted by scaryblackdeath at 8:21 AM on July 10, 2018 [11 favorites]

There is no way the "pro-life" people will be content to ban abortion in Texas and Alabama but let it be legal in California and New York. They want it banned nationwide, and I see no reason at all to imagine they won't succeed in that.

This is 100 percent correct, and just think about how much easier it is for someone to travel than it was in 1973. This will absolutely lead to a new Mann Act.
posted by Etrigan at 8:39 AM on July 10, 2018 [7 favorites]

Justice Kennedy had been in negotiations with the Trump team for months over Kennedy’s replacement.

I heard this as a rumor around Republican circles about a year ago, for what it’s worth- that the talks were going on, that Trump wanted to appoint a second SC justice to try to shore up support and that Kennedy wanted a guarantee it would be one of his clerks because he didn’t trust Trump’s choice.
posted by corb at 8:40 AM on July 10, 2018

Since irony is no longer a thing, can we just call this The Age of Treason?
posted by schadenfrau at 8:43 AM on July 10, 2018 [7 favorites]

Chuck Schumer's Crazy New Scheme: Fight Brett Kavanaugh's Nomination

So, if I’m getting this correctly, Senate Democrats should oppose Kavanaugh by pointing out specific things that are wrong with him, specifically, now, instead of discussing things that happened nearly two years ago? Wow, tell me more.
Whipping those Senate votes into line will require Schumer to push his colleagues in ways he never has before. “Chuck has spent his career trying to make everyone of his colleagues happy, and telling them what they want to hear,” said one Democratic senator, speaking anonymously so as not to anger the party’s Senate leader. “There’s no sense of leadership. It just [feels] as if everyone is in a big tent, just staying where they are, doing whatever they feel is in their best interests.”
Allowing each Democratic senator to do whatever they want even if it screws everyone else has not proved to be an optimal strategy, you say? Huh.

Now, some might call this extremely basic stuff. They might say that the fact that it took the Democratic leader in the Senate over 18 months of a Donald Trump presidency to figure this basic stuff out is something of a mark against him. They might even say that it proves that Chuck Schumer’s handling of Trump’s presidency has been, at best, an ineffectual disaster. But not me! You go Chuck!

posted by zombieflanders at 8:50 AM on July 10, 2018 [7 favorites]

How SCOTUS can stop abortions without overruling Roe

Republican politicians and activists have an interest in suggesting that the overturning of Roe remains uncertain, if only to reassure pro-choice senators Susan Collins of Maine and Lisa Murkowski of Alaska, whose votes are among those needed for Kavanaugh’s confirmation. But some pundits who don’t support overruling Roe have made this argument too. “[O]nly Clarence Thomas would likely vote to overturn Roe v. Wade,” according to Kathleen Parker of the Washington Post. Roe is “not getting overruled,” asserts David Lat at Above the Law. William Saletan argues at Slate that Republicans don’t really want Roe overruled. [...]

But the argument doesn’t withstand sustained inspection. Remember that Roe’s (partial) survival under Republican Supreme Courts is essentially a fluke, a combination of contingencies that is unlikely to be repeated next time, not a careful plan by Republican party elites to preserve Roe.

Consider Planned Parenthood v. Casey, the 1992 case that re-affirmed Roe while giving states more leeway to regulate abortion. Four justices believed that Roe should be overruled and two that it should be kept as is. Roe was saved, then, by a plurality opinion written by three justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Looking at how these justices got to the court shows that Roe’s survival was not the product of a grand strategy.

Most importantly, Kennedy, the crucial vote, was only on the court because Ronald Reagan’s first choice – the fiercely anti-Roe Robert Bork – was voted down by the Senate. Had Reagan nominated Bork while Republicans still controlled the Senate, Roe would have been dead before George H.W. Bush left office. [...]

The problem with expecting another Souter or O’Connor to save Roe, in short, is that an entire movement has sprung up to ensure that another Souter or O’Connor is never nominated, and Trump is following their advice to the letter.

posted by tonycpsu at 9:30 AM on July 10, 2018 [8 favorites]

Brett Kavanaugh’s first claim as a Supreme Court nominee was bizarre

“No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said.

Way to suck up, Kavanaugh.
posted by kirkaracha at 9:50 AM on July 10, 2018 [4 favorites]

> “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination,” Kavanaugh said.

He's talking about how Trump consulted with his Russian handlers? The paid membershhip at Mar-a-lago? The voices in his head?
posted by RedOrGreen at 10:11 AM on July 10, 2018 [6 favorites]

From the NYTimes editorial board: There’s So Much You Don’t Know About Brett Kavanaugh

But Senate Democrats and others who believe in the importance of an independent and nonpartisan judiciary also need to treat these hearings as a public-education opportunity. Where once these sorts of hearings served to inform Americans about the finer points of constitutional law, now they might be used to alert them to cynical tactics of power politics. For starters, that would mean making it clear that Monday’s nomination belongs not to Mr. Trump so much as to the conservative legal activists at the Federalist Society, who have spent nearly four decades building a movement to reshape the federal judiciary and rewrite whole sections of constitutional law.

During the 2016 campaign, Mr. Trump publicized a list of possible Supreme Court nominees preapproved by the Federalist Society and the Heritage Foundation, another conservative group. It was scrubbed of any squishes along the lines of David Souter, Anthony Kennedy or even Chief Justice Roberts, all of whom have been deemed insufficiently committed to the cause for failing to vote in lock step with the radical right’s agenda. (Judge Kavanaugh was left off the original list but was added later.)

The Federalist Society claims to value the so-called strict construction of the Constitution, but this supposedly neutral mode of constitutional interpretation lines up suspiciously well with Republican policy preferences — say, gutting laws that protect voting rights, or opening the floodgates to unlimited political spending, or undermining women’s reproductive freedom, or destroying public-sector labor unions’ ability to stand up for the interests of workers.

In short, Senate Democrats need to use the confirmation process to explain to Americans how their Constitution is about to be hijacked by a small group of conservative radicals well funded by ideological and corporate interests, and what that means in terms of the rights they will lose and the laws that will be invalidated over the next several decades.

posted by mumimor at 10:12 AM on July 10, 2018 [2 favorites]

I mean doesn't the amendment process in Article V undermine the whole "originalist" idea?
posted by kirkaracha at 10:28 AM on July 10, 2018

Virginia residents: Tim Kaine is asking for feedback about Kavanaugh. I said Trump shouldn't get to pick a Justice who might have to rule on his impeachment, and that nothing matters besides this. Respectfully.
posted by Johnny Wallflower at 10:34 AM on July 10, 2018 [9 favorites]

Tim Kaine is unbelievable. This man was our fucking VP nominee.
posted by T.D. Strange at 10:42 AM on July 10, 2018 [10 favorites]

yeah we really dodged a bullet!
posted by prize bull octorok at 10:49 AM on July 10, 2018 [9 favorites]

> Tim Kaine is asking for feedback about Kavanaugh.

I'm with the Pod Save America folks in their lauding of Bob Casey's statement. Bob Casey(!) came out strongly opposed to any candidate on Trump's list as basically a Federalist / corporate tool - and it doesn't really matter *why* someone comes out in strong opposition as long as they pick an opposed stance and stick to it.

Tim Kaine, wtf.
posted by RedOrGreen at 10:50 AM on July 10, 2018 [10 favorites]

My wife and I both responded to Tim Kaine that if he votes for Trump's pick, he's lost our votes in November. We will absolutely abstain from voting for him and leave the Senate line blank. We reminded him that we wrote him a letter once already about his vote for Amy Comey Barrett, and expect him to never betray us like that again. I told him Trump should not be allowed to appoint a Justice that could potentially rule on a criminal indictment against him, no matter who it is. My wife told him that her single issue in this cycle is a woman's right to choose, and Kaine specifically has to vote against this nominee to win her vote back after the Barrett vote.
posted by T.D. Strange at 11:02 AM on July 10, 2018 [10 favorites]

Mitch McConnell To Democrats: Treat Trump’s SCOTUS Pick ‘Fairly’ - Jennifer Bendery, Huffington Post.
posted by ZeusHumms at 11:49 AM on July 10, 2018

Bob Casey is my Senator and I sent him a very nice message thanking him for that stance. Given that the rest of my energy will go into yelling at Pat Toomey fruitlessly, it's nice to have one Senator I don't have to holler at about this. Casey has not always been as firmly on the side of reproductive justice as I want him to be, so I was holding my breath a bit. But The Relative Radicalization of Bob Casey has been one of the few joys of the last couple of years.
posted by Stacey at 11:51 AM on July 10, 2018 [9 favorites]

My senators are Tom Cotton and John Boozman.

I sent them messages that included this sentence:

"Even if we put aside the outsized role the Federalist Society has had in the nominating process, and the fact that Kavanaugh argued that a sitting president should be above the law, and the possibility that this Supreme Court might take up a case involving the Special Counsel's investigation into the President, and the allegations that Anthony Kennedy agreed to resign in exchange for his favored candidate being nominated, and the fact that Kennedy's son was Donald Trump's personal banker at Deutsche Bank, the Senate should not consider Kavanaugh, or any candidate, for the simple reason that this is an election year."

I went on to quote Mitch McConnell.

Senators Boozman and Cotton do not typically write me back.
posted by box at 12:00 PM on July 10, 2018 [10 favorites]

Kavanaugh is radically conservative. Here’s the data to prove it. (WaPo):

On the circuit court, Kavanaugh tended to dissent more often along partisan lines than his peers, according to our research. He justified his decisions with conservative doctrines far more than his colleagues, citing politicized precedents consistent with other Republican-appointed judges, invoking the original Articles of the Constitution (consistent with the Originalist jurisprudence favored by conservative jurists) and using the language of economics and free markets. What’s more, Kavanaugh’s divisiveness ramped up during campaign season: He disagreed with his colleagues more often before elections, suggesting that he feels personally invested in national politics.

posted by peeedro at 1:10 PM on July 10, 2018 [8 favorites]

Popehat talks about Kavanaugh's free speech record.
posted by corb at 1:26 PM on July 10, 2018 [2 favorites]

Fear not! Brett Kavanaugh knows at least three women. (Alexandra Petri, WaPo)

I don’t know why you would want a condensed transcript of the Kavanaugh announcement, as it was pretty short, but you are a busy gentlewoman and you make your own rules, sir. So here it is!

East Room of the White House, PRIME TIME, Because We Have All Tacitly Agreed to Let the President Be the News Whenever He Wants, But Confusing Some “Bachelorette” Viewers, Monday Night.

President Trump: My fellow Americans, I am here doing the second-most important thing a president can do: announcing my pick for the Supreme Court of the United States. The most important thing is to meet with an autocrat and make a lot of concessions for no particular reason, which I will be doing next week. But today we are doing the court thing.

The Supreme Court is basically the Mar-a-Lago or the Ivanka of our republic; it is the crown jewel, compared to which everything else is garbage, and I surround it with words and money in ways that make a lot of Americans uncomfortable. Its job is to protect the Constitution, a document I have definitely read and know about.

Justice Anthony Kennedy told me that he was, for some reason, retiring from the Supreme Court, a job where you literally sit around all day in a robe judging people. I don’t know what he thinks he will do during his retirement. So I have found a replacement who is just like Neil Gorsuch, whom I chose because I was told he had been crafted in a lab designed expressly to produce clones of Antonin Scalia. Or, as it is more commonly known, Georgetown Preparatory School. I have not asked him about his opinions on anything, but I read a thing that implied he didn’t think the sitting president should be prosecuted, which I thought was very sweet and lovely. I can think of no one more qualified for this position.

(A crack appears beneath the podium and the agonized wail of Merrick Garland, chained many feet below the earth, echoes in the room.)

posted by Johnny Wallflower at 1:28 PM on July 10, 2018 [3 favorites]

> Popehat talks about Kavanaugh's free speech record.

[This article] does not, outside of this sentence, acknowledge your Very Important Argument that by merely choosing what to talk about I am engaging in a partisan political act.

Well, at least he acknowledges that the choice of topic here is maybe not what I would have picked as the most pressing issue in the nominee's record.
posted by RedOrGreen at 1:48 PM on July 10, 2018

I can't find the link someone posted to Slate's (sarcastic) "liberal case for Kavanaugh" - maybe it was in the megathread?

In similar vein, here is Kevin Drum's "liberal case for Kavanaugh":

... it is just an immense coincidence that this brilliant, centrist, pragmatic man happens to have ruled without exception in favor of rich people, big corporations, and social conservatives in the past.

posted by RedOrGreen at 2:48 PM on July 10, 2018 [4 favorites]

I was wondering about this today - Mitch McConnell wants to fast-track Kavanaugh's confirmation. Exactly how fast can he fast-track it? If he wanted to, could he, say, file a cloture motion tomorrow and schedule the vote for next week? (I know this sounds really out there, but I put nothing past that loathsome asshole.)
posted by SisterHavana at 3:06 PM on July 10, 2018

Well, at least [Popehat] acknowledges that the choice of topic here is maybe not what I would have picked as the most pressing issue in the nominee's record.

I have a lot of respect for Popehat despite my belief that we should need restraints on speech. His opinion of Kavanaugh's record is relatively uncompromised by external policy considerations, so there can be no argument that his opponents are fighting a straw man. To that extent, I'm glad Popehat made the best defense he could. Unfortunately debate about Kavanaugh's record on civil liberties is utterly irrelevant: we know by whom he's been nominated, and why, and what's going to happen to those liberties.
posted by Joe in Australia at 3:23 PM on July 10, 2018

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Every time cloture comes up it involves a mandatory quorum call. If Democrats request the yeas and nays and leave the chamber there's not enough Republicans left to maintain a quorum and it's on the books.

It would be left to Yertle to decide on how he wants to respond. Probably something along the lines of "let's just pretend we have a quorum anyway".
posted by Definitely Not Sean Spicer at 3:24 PM on July 10, 2018 [4 favorites]

No, the Trump-Russia investigation isn’t a conflict of interest for Kavanaugh (Asha Rangappa, WaPo)

Arguing that a confirmed justice of the Supreme Court cannot see beyond his political patronage is ultimately no different from Trump’s angry Twitter outbursts charging that the “13 angry Democrats” on Mueller’s team are motivated by partisan loyalties. Suggesting Kavanaugh recuse himself in the absence of a clearly articulable conflict of interest validates and provides fodder for the growing belief that public servants entrusted with upholding the rule of law are driven by politics, rather than facts, evidence and the law. Trump may see the world that way and assume that everyone else does, too, but those of us who believe that our justice system is capable of acting independently should not. Ensuring the legitimacy of the Mueller investigation means starting with the premise that, in the absence of evidence to the contrary, judges — just like prosecutors and federal agents of all political stripes — aren’t loyal to any person or party, but to the Constitution.

posted by Johnny Wallflower at 5:16 PM on July 10, 2018

Trump may see the world that way and assume that everyone else does, too, but those of us who believe that our justice system is capable of acting independently should not.

Does the writer realize that the "Trump" whom they so disdainfully brush aside is... the duly(ish)-elected President of the United States?

Who has the legal authority, in his mind if not actually legally, to command the Justice Department, and the judiciary?

Who got elected by -- and here I'll wait while the volk catch their breath and whatnot -- a good-sized majority of white Americans, in opposition to a larger group of Americans of all races who were like "yeah no thanks"?

Arguing that a confirmed justice of the Supreme Court cannot see beyond his political patronage is ultimately no different from Trump’s angry Twitter outbursts

Oh, spare me.
posted by tivalasvegas at 7:48 PM on July 10, 2018 [1 favorite]

Y'all should read Rangappa's article instead of attacking her conclusion (my bad, I should have summarized better). It's more nuanced, and she has the credentials to give her opinion some weight.
posted by Johnny Wallflower at 9:06 PM on July 10, 2018

I've read Asha Rangappa's article, but she's attacking a straw man. I don't rule out Trump improperly attempting to sway judges' positions on an indictment or possible criminal charges, but that's irrelevant. The question is whether Kavanaugh's appointment would be a proper one. And it's not: someone under suspicion should not appoint their own judge. That's the conflict of interest, not some hypothetical impropriety on Kavanaugh's part.

Kavanaugh was chosen because he has publicly opposed criminal charges against sitting Presidents. That is, he is literally prejudiced on this issue. His appointment would be inconsistent with the President's duty to “take Care that the Laws be faithfully executed”, and Kavanaugh ought to decline it.
posted by Joe in Australia at 11:39 PM on July 10, 2018 [8 favorites]

7 legal experts on how Kavanaugh views executive power — and what it could mean for Mueller - Jen Kirby, Vox
posted by ZeusHumms at 6:55 AM on July 11, 2018

Did i miss the part in Rangappa's piece where she addresses the fact that the very very first thing Kavanaugh said upon taking the mic was a demonstrable lie on par with Sean Spicer's inauguration crowd fictions? It is clear and obvious trump did not consult more people from broader backgrounds on his selections to the SC, we all know he was handed a damn list. This alone is disqualifying (although i guess i agree its not a conflict of interest).
posted by Exceptional_Hubris at 7:09 AM on July 11, 2018 [8 favorites]

It is clear and obvious trump did not consult more people from broader backgrounds on his selections to the SC, we all know he was handed a damn list.

From what I understand, more people from broader backgrounds have had to 'consult' with Trump, which is to say visit him continuously so as to be the last person he spoke with so that he wouldn't deviate from the list and name his horse or something, as he kept essentially threatening to do.
posted by corb at 11:10 AM on July 11, 2018

The thinly sourced theories about Trump’s loans and Justice Kennedy’s son (Salvador Rizzo, WaPo Fact Checker)

It would be explosive if Kennedy’s decision to vote a certain way or to retire was based on Deutsche Bank’s dealings with Trump more than a decade ago. Scratching below the surface, there’s no evidence to justify these theories. The New York Times article doesn’t supply it. It says Deutsche Bank loaned Trump more than $1 billion “during” Justin Kennedy’s tenure, not that he was signing the checks or that any rules were broken. What we could piece together about Justin Kennedy’s history doesn’t support these theories, either.

posted by Johnny Wallflower at 7:02 AM on July 12, 2018

> The thinly sourced theories about Trump’s loans and Justice Kennedy’s son (Salvador Rizzo, WaPo Fact Checker)

This is awful - it boils down to "there's no smoking gun of impropriety here".

The justices of the Supreme Court are not bound by the Code of Conduct for United States Judges, but in any event, those rules don’t say the income sources of a judge’s independent adult children should prevent the judge from hearing certain cases.

Well in that case....
posted by RedOrGreen at 7:25 AM on July 12, 2018 [3 favorites]

Setting the Record Straight: Brett Kavanaugh’s Views on Criminal Investigation of the President (Bob Bauer and Ryan Goodman, Just Security)

It may be helpful at the outset of this comment to state clearly what we are not saying. We are not suggesting here that Kavanaugh is unqualified to sit on the Supreme Court, or that the positions he has taken on the question of presidential immunities would operate per se to disqualify him. The issue under discussion may simply present the narrower—yet highly important—question of what Kavanaugh has to say about the conditions under which he would recuse himself from any case involving criminal investigations that implicate the president. What he will conclude about his recusal obligations may turn out to be of great significance to the Court and the Trump presidency. […]

This recusal question does not just arise in the normal course, as it might (and has) for many new Justices. Rule-of-law controversies have virtually defined this Administration as the president demands “loyalty” from senior law enforcement officials, insists on immunity from obstruction of justice charges, and boasts of the “absolute” power to pardon anyone for any reason, including himself. He has aggressively staked out these positions, with full support from his legal team, in the context of an unprecedented investigation into a foreign power’s intervention on his behalf in the last election. It is in these extraordinary circumstances that the Senate will examine Judge Kavanaugh’s well-developed and strong views on the criminal prosecution of presidents, which are consistent with (if considerably more sophisticated than) those of the president under investigation who has nominated him. The issue of those views and whether they compel recusal will require thorough exploration.

The Supreme Court has declined to adopt formal recusal rules and leaves the choice entirely to the discretion of individual Justices, who are also not obligated to explain the reasons. If a Justice Kavanaugh were not to recuse on, say, the question presented by the president’s refusal to comply with a special counsel subpoena for his testimony, and he voted with the president in a close vote, it is not hard to imagine the threat to the Court’s credibility. Moreover, by court practice, he would not explain the reasons why he elected not to recuse, which would inevitably exacerbate suspicions. If, however, the he did recuse, and the vote turns out to be 4-4, his absence would render the Court powerless to decide a case of historic significance. (We could imagine that the Court would go out of its way not to have a case like this resolved by one vote or deadlocked. But, as Bush v. Gore showed, things don’t always turn out as we might have imagined.)

posted by Johnny Wallflower at 8:32 AM on July 12, 2018

> If the only evidence is that Trump borrowed from the bank at a time when Kennedy's son worked for that very large bank...

Kennedy's son was the global head of the real estate capital markets division of the bank, which loaned money to Trump's real estate ventures when no other bank would do business with him. From the Financial Times: Kennedy was “one of Mr Trump’s most trusted associates over a 12-year spell at Deutsche.” (sub paywall; link to TPM story below.)

And yes, there's no (public) evidence yet, just rumors, that the money came to the bank from Russian oligarch deposits, but Mueller has yet to show his cards. The bank has already paid fines on some charges of Russian money laundering:

Days after Trump became President, New York State announced a $425 million fine Deutsche Bank had agreed to pay over a $10 billion Russian money laundering scheme, one of many investigations the bank is still embroiled in.

Talking Points Memo: "Say hello to your boy. A special guy."
posted by RedOrGreen at 12:58 PM on July 12, 2018 [5 favorites]

I don't know if this is relevant to the Deutsche Bank/Kennedy/Trump issue, but people borrowing money via a bank aren't always borrowing money from the bank, especially when it's a large amount of money. For instance, banks are often mediators or brokers for commercial bills:
1) Borrower needs to borrow, say, one million dollars for one year.
2) Borrower (in consultation with a broker) writes an IOU that says "I will pay the bearer of this bill $1,050,000 in twelve months". The extra $50,000 is effectively the interest on a loan.
3) The broker offers the IOU to its clients. In exchange for the broker's intermediarisation and the security offered by the broker's reputation, clients are willing to pay a bit more than a million dollars for the bill. That "bit more" is the broker's profit margin.
4) The broker takes the borrower's IOU on behalf of the client and gives the borrower a million dollars in exchange.
5) A year later the borrower pays the broker $1,050,000 and gets the IOU back. The broker gives the $1,050,000 to the client.

Now, let's suppose that the borrower is Trump and no bank wants to lend him money. Doing it via a commercial bill - which is an entirely normal way of financing things - means that the question of his creditworthiness is mostly a matter for the investors. The bank has a supervisory role, but they're not risking their own money. And if the bank's clients explicitly tell the bank they're willing to take the risk, why should the bank stand in the way?

As it happens, Deutsche Bank has apparently admitted that it facilitated money laundering, which is another thing the use of commercial bills might accomplish. So it's at least possible that Justice Kennedy's son was involved in the loans to Trump, knew that they came from Russian interests, and knew there was some corrupt or illegal purpose to the transaction. If so, it's not a case of the bank making a risky loan. That would have mostly been a matter for the bank's own auditors. Doing it as a facilitator or broker, though, would make it a matter of public interest.
posted by Joe in Australia at 6:40 PM on July 12, 2018 [4 favorites]

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