All Things SCOTUS

NorthDakota

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I listened to the whole speech. I thought it was well presented and his demeanor was calm. His points were sound and on the side of individual liberty. They were also consistent with his opinions on the cake case, the Nevada Church case, and New York State Rifle and Pistol case.

People are angry that he talked negatively about cancel culture, censorship, anti-2a policies, and restrictions on religious liberty. Those are people that promote cancel culture, speech compliance, gun control, and the idea that religion = bigotry.

It was a good speech and I'd suggest listening to it.

I listened to it too. Was nothing out of the ordinary. Dude owns.
 

NorthDakota

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Taking a study break to watch Created Equal:Clarence Thomas In His Own Words. Might be one if the more fascinating personal stories in American judicial history.

Would spend more (student loan money at 6% interest) than I care to admit to spend an afternoon with him.
 

Irish#1

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Taking a study break to watch Created Equal:Clarence Thomas In His Own Words. Might be one if the more fascinating personal stories in American judicial history.

Would spend more (student loan money at 6% interest) than I care to admit to spend an afternoon with him.

If you do, ask him how he thought up the pubic hair trick.
 

Armyirish47

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Taking a study break to watch Created Equal:Clarence Thomas In His Own Words. Might be one if the more fascinating personal stories in American judicial history.

Would spend more (student loan money at 6% interest) than I care to admit to spend an afternoon with him.



With Justice Thomas history that would likely be a very quiet afternoon.


SCOTUS humor!
 

drayer54

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Justice Thomas is the greatest. That special did a good job highlighting his upbringing and his thoughts on the confirmation fiasco.
 

Legacy

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SCOTUS appears to upended the Constitutional principle of federalism and precedent in Scalia's decision in Employment Division v Smith for the second time in weeks on religious freedom v Covid restrictions by duly-elected Governors. In doing so, one Justice has cemented the reversal from Scalia's opinion - Barrett - who clerked for Scalia. She also seems to have reversed her stance, initially supporting the decision by her mentor, but lately expressing the feeling that religious freedom is under attack by public health restrictions.

Scalia:
To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. See, e.g., Cantwell, supra, 310 U.S., at 304, 60 S.Ct., at 903-04; Reynolds v. United States, 98 U.S. 145, 161-167, 25 L.Ed. 244 (1879). Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

If the novel coronavirus pandemic taking almost 300k lives and counting, perhaps eventually a half of a million lives is not a "compelling state interest", what is for Governors?

Scalia:
The Court attempts to support its narrow reading of the Clause by claiming that "[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

and,
"[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers.

Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which required the application of strict scrutiny. In response to the Supreme Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as applied to the states. Roughly a third of states have religious exemptions to Covid restrictions anyway including social distancing.

We have activist Justices who will rule there is no compelling interest of a state in temporarily regulating the conduct of religious expression. Should religious leaders such as Bishops cognizant of the risk of Covid spread among large gatherings require masks and limited attendance be brought to court by parishioners for infringement on their First Amendment rights, whose "compelling interests" will best be served?
 
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NorthDakota

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SCOTUS appears to upended the Constitutional principle of federalism and precedent in Scalia's decision in Employment Division v Smith for the second time in weeks on religious freedom v Covid restrictions by duly-elected Governors. In doing so, one Justice has cemented the reversal from Scalia's opinion - Barrett - who clerked for Scalia. She also seems to have reversed her stance, initially supporting the decision by her mentor, but lately expressing the feeling that religious freedom is under attack by public health restrictions.

Scalia:


If the novel coronavirus pandemic taking almost 300k lives and counting, perhaps eventually a half of a million lives is not a "compelling state interest", what is for Governors?

Scalia:


and,


Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which required the application of strict scrutiny. In response to the Supreme Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as applied to the states. Roughly a third of states have religious exemptions to Covid restrictions anyway including social distancing.

We have activist Justices who will rule there is no compelling interest of a state in temporarily regulating the conduct of religious expression. Should religious leaders such as Bishops cognizant of the risk of Covid spread among large gatherings require masks and limited attendance be brought to court by parishioners for infringement on their First Amendment rights, whose "compelling interests" will best be served?

Always fun to watch libs cry when they can't get around free exercise of religion. Borderline erotic. Religious institutions were targeted with some genuinely wild restrictions that were not being applied to others.

You'll be fine. Get over it.
 

drayer54

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The it’s ok to sit in a restaurant and Home Depot but not church crowd will not like this decision. Prior to ACB- Caesars Palace in Vegas had more freedom than Calvary Chapel. It’s a shame we must rely on a fair SCOTUS to protect liberty and not our Governors.

Activist courts create laws, not defend them.
 

Irish#1

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SCOTUS appears to upended the Constitutional principle of federalism and precedent in Scalia's decision in Employment Division v Smith for the second time in weeks on religious freedom v Covid restrictions by duly-elected Governors. In doing so, one Justice has cemented the reversal from Scalia's opinion - Barrett - who clerked for Scalia. She also seems to have reversed her stance, initially supporting the decision by her mentor, but lately expressing the feeling that religious freedom is under attack by public health restrictions.

Scalia:


If the novel coronavirus pandemic taking almost 300k lives and counting, perhaps eventually a half of a million lives is not a "compelling state interest", what is for Governors?

Scalia:


and,


Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which required the application of strict scrutiny. In response to the Supreme Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as applied to the states. Roughly a third of states have religious exemptions to Covid restrictions anyway including social distancing.

We have activist Justices who will rule there is no compelling interest of a state in temporarily regulating the conduct of religious expression. Should religious leaders such as Bishops cognizant of the risk of Covid spread among large gatherings require masks and limited attendance be brought to court by parishioners for infringement on their First Amendment rights, whose "compelling interests" will best be served?

Activist judges like former SCJ RBG?
 

Legacy

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Politics trumps precedent and legal decisions by that lib Scalia, I see. Not willing to engage on the merits or enter a discussion on the issues? Defend rather than be defensive.

Predictable, though the "my side won" misses all the marks in a pandemic. For those with a degree of legal background, there is fertile ground here.
 
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NorthDakota

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Politics trumps precedent and legal decisions by that lib Scalia, I see. Not willing to engage on the merits or enter a discussion on the issues? Defend rather than be defensive.

Predictable, though the "my side won" misses all the marks in a pandemic. For those with a degree of legal background, there is fertile ground here.

This is wild how sad you are about this. Genuinely difficult to see how someone who claims to be a fan of Notre Fucking Dame could be devastated and heartbroken that the Supreme Court of the United States made the free exercise of religion easier.

But ok I'll bite. I get to run into dumbass thinking like this every day in school so whats another day of battle.

1. You don't care about precedent and I doubt you ever have. You are mad that the Supreme Court made a specific ruling in a specific case because you read some shitty articles online that either predicted an old case would prevent SCOTUS from ruling as they did or has complained in the weeks since they ruled as they did. I wonder how much crying you'd do on IE if a case came up on locking up ethnic minorities in times of war and SCOTUS applied Korematsu, allowing the concentration camps to open? After all, only an activist judge would go against the precedent and the precedent says the practice is acceptable.


2. The lib governors and states really got all they wanted out of the deal. They were able to step on religious practices for months before the Supreme Court stepped in when many of the restrictions were no longer even in place.

So for your "oh this is about pandemic measures!" point, I'm gonna just go ahead and call you a liar. This was a once in a century pandemic and its gonna be wrapping up in a few months after this vaccine gets out.

The only way to square your reaction with the practical results of the Supreme Court decision would be to determine that the pandemic is near the bottom of your concerns. It would make no sense to claim "im mad about how this will impact our efforts to fight the virus" when most or all of the measures have been scaled back anyway. This is basically an official tellin

What you wanted was a SCOTUS decision Post-Scalia to announce that read broadly would say "during emergencies, the government has broad authority to infringe on individual liberties." Then, in the future, you'd hope to see that authority strengthened and be used for any number of liberal policy goals ( gun violence, education, etc) at the state level.

You didn't get that ruling. You'll be fine. Whoever wrote the articles you read crying about the result will be fine too. This isn't even some huge landmark case lol, I genuinely feel sorry for you if this is how you handle losses. This is what I'd expect from NYU womens studies majors f Roe v. Wade was overturned lol.

TLDR: this was one of the more transparent "legal" complaints I've seen and I see them on a weekly basis in class.
 
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Legacy

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This is wild how sad you are about this. Genuinely difficult to see how someone who claims to be a fan of Notre Fucking Dame could be devastated and heartbroken that the Supreme Court of the United States made the free exercise of religion easier.

But ok I'll bite. I get to run into dumbass thinking like this every day in school so whats another day of battle.

1. You don't care about precedent and I doubt you ever have. You are mad that the Supreme Court made a specific ruling in a specific case because you read some shitty articles online that either predicted an old case would prevent SCOTUS from ruling as they did or has complained in the weeks since they ruled as they did. I wonder how much crying you'd do on IE if a case came up on locking up ethnic minorities in times of war and SCOTUS applied Korematsu, allowing the concentration camps to open? After all, only an activist judge would go against the precedent and the precedent says the practice is acceptable.


2. The lib governors and states really got all they wanted out of the deal. They were able to step on religious practices for months before the Supreme Court stepped in when many of the restrictions were no longer even in place.

So for your "oh this is about pandemic measures!" point, I'm gonna just go ahead and call you a liar. This was a once in a century pandemic and its gonna be wrapping up in a few months after this vaccine gets out.

The only way to square your reaction with the practical results of the Supreme Court decision would be to determine that the pandemic is near the bottom of your concerns. It would make no sense to claim "im mad about how this will impact our efforts to fight the virus" when most or all of the measures have been scaled back anyway. This is basically an official tellin

What you wanted was a SCOTUS decision Post-Scalia to announce that read broadly would say "during emergencies, the government has broad authority to infringe on individual liberties." Then, in the future, you'd hope to see that authority strengthened and be used for any number of liberal policy goals ( gun violence, education, etc) at the state level.

You didn't get that ruling. You'll be fine. Whoever wrote the articles you read crying about the result will be fine too. This isn't even some huge landmark case lol, I genuinely feel sorry for you if this is how you handle losses. This is what I'd expect from NYU womens studies majors f Roe v. Wade was overturned lol.

TLDR: this was one of the more transparent "legal" complaints I've seen and I see them on a weekly basis in class.

Interesting take on the issues. I wish you well.
 

NorthDakota

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So folks, for the record, in Legacy's world, the governor may put a 25 person capacity on St. Patrick's Cathedral while a tattoo parlor a block away can be open without restrictions, or hundreds of customers can be present at one of the mini-Targets that are scattered throughout NYC. Latham and Watkins could have every lawyer they employ in a conference room at work, but 26 people would not be able to be present at Mass.

He claimed that somehow the Supreme Court determined that limiting the spread of coronavirus is NOT a compelling state interest when their most recent opinion straight up says it is one.

I'm assuming he's referring to diocese of Brooklyn v. Cuomo anyway.
 

Irish#1

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I thought bigger government who can tell us what to do with our daily lives is what we want isn't it? Seems to work pretty well in Russia doesn't it?
 

IrishLax

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<blockquote class="twitter-tweet"><p lang="en" dir="ltr">NEWS: In win for Trump, Supreme Court throws out challenge to his census plan to exclude undocumented immigrants<br><br>A 6-3 vote along ideological lines <a href="https://t.co/O3imd7ZoFL">https://t.co/O3imd7ZoFL</a></p>— Sahil Kapur (@sahilkapur) <a href="https://twitter.com/sahilkapur/status/1339960585371471873?ref_src=twsrc%5Etfw">December 18, 2020</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>

Correct decision, IMO. Why on earth would you count people who don't have a legal right to be here in a census that is used to determine voting representation in congress? There are valid reasons to count undocumented immigrants, but not for the purposes of proportional representation.
 

NorthDakota

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<blockquote class="twitter-tweet"><p lang="en" dir="ltr">NEWS: In win for Trump, Supreme Court throws out challenge to his census plan to exclude undocumented immigrants<br><br>A 6-3 vote along ideological lines <a href="https://t.co/O3imd7ZoFL">https://t.co/O3imd7ZoFL</a></p>— Sahil Kapur (@sahilkapur) <a href="https://twitter.com/sahilkapur/status/1339960585371471873?ref_src=twsrc%5Etfw">December 18, 2020</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>

Correct decision, IMO. Why on earth would you count people who don't have a legal right to be here in a census that is used to determine voting representation in congress? There are valid reasons to count undocumented immigrants, but not for the purposes of proportional representation.

I think the argument is some hippie "people are people whether they are 'legal or not" but the big thing is money and political power im pretty sure.
 

Legacy

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Employment Division v Smith may a bit much for advocates of unrestrained, unlimited religious freedom to discuss in this thread. It clearly does bring up a lot of emotion and was controversial even twenty-seven years ago when Scalia wrote the majority opinion - and remains so. My Scalia quotes were taken from the Legal Information Institute in the Cornell Law Review. Interestingly, the minority in the 6-3 decision were the liberal Justices - Harry Blackmun, William Brennan and Thurgood Marshall - who objected to Oregon's regulation of a religious practices of Native Americans. Also from that source, Scalia begins with:
This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.
As with all of Scalia's opinions, he cites innumerable decisions throughout. but his one line response (in paragraph 16) was:
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

I highlighted the restraints Scalia enumerated, but what it came down to is SCOTUS said that "the honest application of the compelling state interest test in free exercise cases involving neutral laws would lead to anarchy and chaos". .

It's a good read if anyone is interested. Scalia always is. I did not research if any of his subsequent speeches addressed the issues in Smith.

I did not, however, read the majority opinion that held the subsequent Religious Freedom Restoration Act (RFRA) in 1993 as unconstitutional and do not know which Justices ruled in that decision.

I read a speech entitled "The Political (and Other) Safeguards of ReligiousFreedom" by Richard Gannett in the Cardozo Law Review. I found that it had been reprinted in the Notre Dame Law Review. I looked for Barrett's opinions on Religious freedoms specific to Smith in her writing since she clerked for Scalia, but stopped when I could not find it in a review that would have resulted in extensive digging. She has written or done numerous articles on precedent with a 2013 one entitled "Precedent and Jurisprudential Disagreement".

Referencing the second of the recent SCOTUS decisions on the state's obligation for the welfare and health of its citizens v religious practices in a pandemic that has killed more Americans in ten months than in six years of WWII in two theaters seemed enough to bring it to post.

Questioning Scalia's devotion to his Catholic faith in light of his writing of the majority decision never occurred to me. I'm sure it has been impugned by those who vehemently objected to the narrow constraints on the Free Exercise clause of the First Amendment. One can also imagine that Barrett will be expected to reverse Smith based on her faith by some.

It does seem to me that not treating large social gatherings in a pandemic similar to regulation on businesses is unjust and contrary to Smith even if temporary.

Now there is Fulton v the City of Philadelphia, in which arguments have been made Nov 4 and involves Catholic Social Services and determining adoptive parents. Some are hoping that Barrett and the rest of the conservative Justices will overturn the constraints in Smith - something the liberal Justices in 1993 addressed in their minority opinion. Her questioning has been speculated that she is not willing to do so. That would, of course, be irrespective of any state obligations in a pandemic, but would involve her views on SCOTUS's stare decisis and Smith's “rational basis” standard which a law is constitutional as long as there is a rational or legitimate reason for it.

What Scalia and the other Justices including the liberals about a temporary regulation in a pandemic rather than a state or federal law is probably worth consideration. Fulton v Philadelphia may be a narrow interpretation and not a reversal of Smith. It would be interesting if the arguments made that find a sympathetic ear in conservative Justices in 2020 were those of the liberal Justices in 1993.

Those were my sources and the articles I read prior to posting.
 
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Legacy

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As far as Fulton v the City of Philadelphia in which the City stopped foster care to religious organization as part of their foster care system that do not include gay couples, here is the Appeals Court decision. Both the Appeals Court and the District Court have decided in favor of the City. The organizations including Catholic Social Services (CSS) argue the Free Exercise Clause and the Establishment Clause of the First Amendment as well as Free Speech. According to Smith, any ordinance must be religiously neutral which means that it is not targeting religious practices specifically.

Excerpts:
In sum, at the preliminary injunction stage CSS shows
insufficient evidence that the City violated the Free Exercise
Clause. The Fair Practices Ordinance has not been
gerrymandered as in Lukumi, and there is no history of ignoring
widespread secular violations as in Tenafly or the kind of
animosity against religion found in Masterpiece. Here the City
has been working with CSS for many decades fully aware of
its religious character. It continues to work with CSS as a
congregate care provider and as a Community Umbrella
Agency even to this day despite CSS’s religious views
regarding marriage. And the City has expressed a constant
desire to renew its relationship with CSS as a foster care
agency if it will comply with the City’s non-discrimination
policies protecting same-sex couples.

If the City truly were punishing CSS for refusing to
adopt its preferred view of Catholic teaching, no doubt that
would be an impermissible establishment of religion. But that
is not what happened here. Human Services still works with CSS as a congregate care provider and a Community Umbrella
Agency. It still works with Bethany Christian as a foster care
agency, even though Bethany also maintains its religious
opposition to same-sex marriage. This supports the view that
CSS is not being excluded due to its religious beliefs

F. Conclusion
The City stands on firm ground in requiring its
contractors to abide by its non-discrimination policies when
administering public services. Under Smith, the First
Amendment does not prohibit government regulation of
religiously motivated conduct so long as that regulation is not a veiled attempt to suppress disfavored religious beliefs. And
while CSS may assert that the City’s actions were not driven
by a sincere commitment to equality but rather by antireligious
and anti-Catholic bias (and is of course able to introduce
additional evidence as this case proceeds), the current record
does not show religious persecution or bias. Instead it shows
so far the City’s good faith in its effort to enforce its laws
against discrimination.

So, SCOTUS will have to decide on narrow grounds in accordance with Smith or find grounds to overturn Smith.
 
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drayer54

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[TWEET]https://twitter.com/jbendery/status/1380523176791248896?s=21[/TWEET]

Both White House press secretary Jen Psaki and Paige Herwig, Biden's point person on judicial nominations, previously worked for Demand Justice, which is part of a massive dark money network, the Sixteen Thirty Fund.

Now, they are giving this blunt gesture aimed at Justice Breyer, who is learning about his party’s obsession with identity politics first hand after being a loyal and consistent lib for decades on the court. Very classy move by the left wing dark money crowd here.

Sheldon Whitehouse is digging his face in the sand on this dark money effort to control the court.
 

PerthDomer

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They wanted RBG to retire during Obama's 1st 2 years of term 2. From then until now there was no way RBG or Breyer would be replaced with a similar justice. If the dems lose the majority in the senate, Mitch can play 4 corners again and hold out for a Republican president. Biden though would probably prefer to wait for infrastructure legislation to roll through congress before dealing with a SCOTUS fight.
 
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NorthDakota

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They wanted RBG to retire during Obama's 1st 2 years of term 2. From then until now there was no way RBG or Breyer would be replaced with a similar justice. If the dems lose the majority in the senate, Mitch can play 4 corners again and hold out for a Republican president. Biden though would probably prefer to wait for infrastructure legislation to roll through congress before dealing with a SCOTUS fight.

I think the GOP would allow another Breyer type as long as it's not a Presidential year for a couple reasons:

1. It wouldn't change the makeup of the court. 6-3 remains 6-3. Doesn't change things the way Scalia > Garland would have.
2. Easy opportunity to sorta gaslight the Dems, "see? This is how we normally handle judicial nominations."

Playing hardball when the stakes are high is one thing, it's another to play when you have a lot less to gain from it. A 6-3 court is going to give the Republicans a lot of 6-3 and 5-4 wins. A 7-2 court gives a few more wins potentially but the returns are much less significant.

At the end of the day, pressuring justices to retire seems tacky whether it comes from the left or the right. I hope he sticks around as long or as short as he wants.

I did rather enjoy when Garland got the AG job and the smoothbrains on Twitter were all like "I bet Mitch regrets not giving him a hearing now! He's gonna make the GOP's life hell!" Lol. Every Republican in the world would make that trade 10/10 times. We get to appoint a fairly young guy to the Supreme Court and you get...a liberal AG during a Democrat presidency? Uhhh ok? Cool beans.
 

drayer54

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I think the GOP would allow another Breyer type as long as it's not a Presidential year for a couple reasons:

1. It wouldn't change the makeup of the court. 6-3 remains 6-3. Doesn't change things the way Scalia > Garland would have.
2. Easy opportunity to sorta gaslight the Dems, "see? This is how we normally handle judicial nominations."

Playing hardball when the stakes are high is one thing, it's another to play when you have a lot less to gain from it. A 6-3 court is going to give the Republicans a lot of 6-3 and 5-4 wins. A 7-2 court gives a few more wins potentially but the returns are much less significant.

At the end of the day, pressuring justices to retire seems tacky whether it comes from the left or the right. I hope he sticks around as long or as short as he wants.

I did rather enjoy when Garland got the AG job and the smoothbrains on Twitter were all like "I bet Mitch regrets not giving him a hearing now! He's gonna make the GOP's life hell!" Lol. Every Republican in the world would make that trade 10/10 times. We get to appoint a fairly young guy to the Supreme Court and you get...a liberal AG during a Democrat presidency? Uhhh ok? Cool beans.

This. Biden wants to move the fake infrastructure bill right now and toss out a court packing study commission so he doesn’t have to own that decision. I don’t recall the GOP having a brutal confirmation for a lib justice.

Im feeling really good about the Senate in 2022, so it would force a more moderate pick after that. As for now, we’d get the most qualified black woman in West Virginia.
 

PerthDomer

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This. Biden wants to move the fake infrastructure bill right now and toss out a court packing study commission so he doesn’t have to own that decision. I don’t recall the GOP having a brutal confirmation for a lib justice.

Im feeling really good about the Senate in 2022, so it would force a more moderate pick after that. As for now, we’d get the most qualified black woman in West Virginia.

The play is letting Ketanji Brown serve a term on the DC circuit and let her replaced Breyer (she clerked for him he's pretty open he wants her to take the seat). And the GOP wants a court fight for the same reason they want anything. It animates the base. If the base stays home in 2022 like it did in 2018 things won't look great for the GOP. The senate map is generally favorable for the dems in 2022 and they're better than even money to retake it on the betting sites. House is more fertile territory for the GOP.
 

drayer54

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[TWEET]https://twitter.com/MondaireJones/status/1382502415677730820?s=20[/TWEET]

Not sure how anyone could deny the Democrats are willing to do anything for power at this point. Narrowly controlling both branches of the elected government and removing the checks and balances of the third to move your unconstitutional takeover of the country is infrastructure.
 

NorthDakota

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[TWEET]https://twitter.com/MondaireJones/status/1382502415677730820?s=20[/TWEET]

Not sure how anyone could deny the Democrats are willing to do anything for power at this point. Narrowly controlling both branches of the elected government and removing the checks and balances of the third to move your unconstitutional takeover of the country is infrastructure.

He was on the TV today, said that was intended as a joke. I'll take his word. This ain't gonna go anywhere. You don't pick Jerry Nader or Ed Markey as your messengers for something you think you can actually do.
 
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