If there was something hamfisted or manipulative, I imagine everyone involved on all sides would be striving to keep that from the press.

1: With the possible exception of Trump -- he might boast about it.

I did something I thought might have a small impact: called both CA senators and thanked them for saying no confirmation this year, but urged them to extend this to next near or never if necessary, not until the confirmation actually counteracts the illegitimate current composition of the Court.

near nearyear

Yes, now that there's a story, the denials are almost surely to include blurting out confessions, generally after subordinates started putting out an alternative explanation.

1: You don't think they were grooming him to retire?

3: It's all good to encourage your senators, but there's literally no chance that the Republicans won't confirm somebody this year.

Mr. Trump had a second opportunity in his administration's first 18 months to fulfill one of his most important campaign promises to his conservative followers -- that he would change the complexion and direction of the Supreme Court.

Emphasis added. I'm surprised that the NYT was willing to state the truth so openly about this, for whatever that's worth. (OTOH, the complexion specifically isn't likely to change any time soon, unless Clarence Thomas decides to make way for a 35-year-old with Gorsuch's politics.)

6: No, I'm sure the story is correct in its details, but I don't trust that the picture of subtle and effective use of soft power it presents is the complete one.

7: I think it's a pretty small chance, but it's not zero chance. Murkowski and Collins could surprise us, so let's keep the roads open. Also we need lots of Dem-on-Dem pressure to keep the flippers like Heitkamp from providing bipartisan cover.

The chance is literally zero. Whatever arguments are made against whoever is nominated, the case was stronger against Gorsuch's nomination and they failed there.

Is this the Kennedy relative whose life experience explains dad's position on marriage equality, is is this the Kennedy whose (wife/girlfriend's) life experience explains dad's position on reproductive freedom?

Not that it being coercive pressured makes Kennedy in any way a good person, but I think there would be a case, if the administration made it, that if Trump goes down Justin Kennedy also gets implicated in various crimes related to his help within Deutsche Bank.

11: I think politicians were slow to realize how angry most of America is about this election, and maybe felt like fighting Gorsuch tooth and nail would look like sour grapes over the election? Did Gorsuch take place before all the big ACA groundswells and others? But I suppose after the travel ban and inauguration protests.

No, I'm sure the story is correct in its details, but I don't trust that the picture of subtle and effective use of soft power it presents is the complete one.

Yeah, there's a flat assertion that Kennedy wasn't directly pressured that seems as if it couldn't possibly be well supported.

14: They haven't even made any real efforts to curb obvious corruption in Trump's cabinet. I don't know if any Dems will cross the line for the second judge, but there's no way the Republicans don't get 50 votes.

Is it possible that two Republican senators will be too ill to make it to the floor?

I think the only real hope is maximal delay plus getting lucky and there being a real scandal involving the first nominee. Then the timing gets really tight and any number of things could happen.

A few Republicans in the Senate have to change parties for anything good to happen. This has always been the only real option for Congressional oversight since inauguration day, but also not really real because apparently no one in office has that kind of conscience or courage. Hollow statements of criticism with no change in votes, along with "not my problem anymore " retirements is what passes for opposition among people whose votes could make a difference.

Yeah... If you could somehow delay things until after the election *and* there was a huge blue wave then maybe Murkowski or Collins would switch caucus and block the appointment during the lame duck.

If you delay things until after the election, you won't have a blue wave because voting for a Senate that will give them a Supreme Court is about the only thing that could raise the Republican voters' intensity levels to the same levels as Democrats have now.

I just want someone to finally nail down a "Trump pays to cover up abortion story." There's one that we basically know about, but there's gotta be half a dozen.

That's why he switched to pee. Safer.

No one will care, even if the story breaks.

A few Republicans in the Senate have to change parties for anything good to happen. This has always been the only real option for Congressional oversight since inauguration day, but also not really real because apparently no one in office has that kind of conscience or courage.

And yet both Jim Jeffords and Arlen Specter did it in the Bush administration. Clearly a more polarizing time forcing men of principle to act on principle.

I wonder if Murkowski and/or Collins would respond to a Roe-based freakout from their constituents.

apparently no one in office has that kind of conscience or courage

I may just be rephrasing Ned here, but obedience to Trump is an expression of their conscience. No Republican meaningfully opposes him, even if Corker and Flake are uncomfortable serving in his Senate.

26: Seems to me that Manchin and Heitkamp are more susceptible to pressure on that issue. Neither Murkowski nor Collins is going to have to face the voters this year.

After asserting unwisely that Anthony Kennedy's Retirement Will Turn Congress Blue, Drum came back with a smarter, though less definitive, take. He weighs two options: Morale-deflating pro forma opposition to Trump's nominee, or going all out and having the nomination be a live issue during the election. He doesn't like either option, and solicits suggestions.

My guess is that the best outcome for the Dems is that they go all-out to oppose the nominee and that they fail.

Y'all can have your blog back now.

29: Yeah, I think there's a real danger of overthinking this one. "Get caught trying" feels like the simple good advice here.

I may just be rephrasing Ned here, but obedience to Trump is an expression of their conscience

So the Republicans are Pinocchio and Trump is Jiminy Cricket? Except that in this version Pinocchio actually listens to Jiminy?

31: With thoughtful people like us there's always a danger of overthinking, but the real danger is overthinking the overthinking.

The political decision tree for Senate Democrats, to my mind, is:

(1) is there a chance of peeling off two Republican votes? Or of delay past Jan 2019? If so, do whatever it takes to do that. It seems to me that the only chances there would be if Trump picks someone with easily attackable qualities, or if Mueller releases something damning enough to make the thought of a Trump nominee difficult. But maybe there's some other possibility. Anyhow this seems unlikely to me, maybe a 1/100 shot, but what do I know and whatever anyone can do to pursue that should be done. That includes delay for the sake of delay.

(2) assuming the answer to (1) is no, as it almost certainly is, what do you do about red state Democratic senators, specifically Manchin, Heitkamp, Donnelley, and McCaskill, who might want to vote yes *in a situation where the nomination will happen anyway*. The cost/benefit to giving them "room" to voe yes (they might do so anyway) is basically the cost of lowering enthusiasm in the Dem base vs the benefit of whatever marginal gain they get from a yes vote in their close races. I don't pretend to know the derails of their races or the impact of this issue on their races, but I do know that the answer to thT question isn't obvious and I am glad I'm not a democratic Senator.

One no longer needs to know the details to anticipate derails.

Yglesias has a running gag about how [whatever today's news is] shows that it is crucially important to enact all my policy preferences, and I feel like that about 34.2. That is, this year especially the right answer has to be for even red state Senators to dig their heels in and fight -- they'll get more real democratic votes by firing them up than they'll lose right-wing votes.

On the other hand, I'd say that any year, so don't listen to me.

the right answer has to be for even red state Senators to dig their heels in and fight -- they'll get more real democratic votes by firing them up than they'll lose right-wing votes.

My view (and I don't think you disagree) is that I don't believe that this is true, or not true, as a general rule -- it depends on the issue and the specific race. Is it true for a yes vote on a Supreme Court nomination that would go through anyway, in races for incumbent Democrats in West Virginia, Indiana, and North Dakota? I dunno, genuinely.

I genuinely do believe that it's a solid rule of thumb this year; that close races are going to be about riding the wave of anti-Trump rage everywhere, and equivocating will look weak. But I also genuinely believe that I don't have well-informed judgment about the rest of the country, so it doesn't matter what I genuinely believe, people shouldn't listen to me too seriously.

Which comes out to 'I dunno', but more intensely felt.

I am (of course) with LB.

In particular, I think the political benefit to red state democrats in voting for this nominee will be exactly zero. Trump and Gillibrand have both said this week that every democrat opposed Gorsuch, after all -- the only people who even noticed that Heitkamp, Donnelly, and Manchin all voted Yes are democrats who saw them as spineless and got discouraged. I think that's a good predictor for what will happen this time around too.

I agree with 38, or at least I think we are coming close to a point where that is the absolutely necessary approach.

Democrats have been trying to finesse these things for years, and although it didn't turn out well, I don't think it was a foolish approach that was necessarily doomed to failure.

But now, there is no compromise with Trumpism, no accommodation available. McConnell promised to employ every possible low blow to fight Obama even where Republicans agreed with him. The nutjobs hysterically declared 2016 the Flight 93 election. But it is the Democrats and democrats who are facing an extinction-level in this country.

If a voting majority can't unite behind anti-Trumpism and in favor of democracy, then we're just fucked, and all the Third Way crap in the world can't save us.

29: "All out" is a vague term. Sitting Congresspeople getting arrested for civil disobedience to protest Trump's nominee wouldn't satisfy some leftier-than-thou types. (I generally don't think they matter as much as Halford does, but given that we've had one around here in the past week, I have to admit they exist.) Same for "pro forma". What McConnell said and did about Merrick Garland was almost unprecedented at the time, but Democrats merely saying the same things now would be a joke.

At this point the thing I'm most curious about is when the vote would be. Ideally for Republicans the vote would be scheduled for November 8. Fire up their base, and in the event that they lose seats, the lame duck congress still has a lot of time to confirm the nominee. But that seems risky for several reasons. It would fire up the Democrats while this nomination is actually relatively low stakes for Republicans. No matter what, Trump is going to get to appoint someone. (If Trump leaves office somehow, Pence gets to appoint someone.) Also, if there's any late-breaking news about the nominee, it would make the election go worse for the party, and if things get delayed too much somehow, the nominee might not actually be voted on during the lame duck session.

Also, it seems like that's a long time between Kennedy retiring and a nominee being confirmed. (IIRC he's retiring effecting July 31, so that would be 3 months with a 4-4 split on the court. That's good for Republicans but not as good as a 5-4 split.) I wonder if they'd schedule the hearings for before the election. Hard to say how that would affect turnout, but they might want an extra friendly vote for any election shenanigans.

As I said above, IF there is a possibility of delaying the vote or getting a no vote, Democrats absolutely need to do that. The only question is the political cost/benefit for red state senators in a situation in which it is clear that this possibility *doesn't* exist.

As a general rule, I think the red-state senators are more likely (just more likely, they could easily be wrong) to have a better sense of their states and the tradeoffs in their states than random people on the internet. Also, our outrage at Trump can make it hard to do the cold calculation. Thinking about it another way, imagine your job is to get Susan Collins elected in Maine (gross, I know, but). If someone asserted confidently that "Susan Collins should run to the hard right and vocally so because she'll gain as many motivated voters as she'll turn off people in the middle," everyone would agree at a minimum that this strategy would be, at least ... not obviously correct. But it feels more intuitively not-obvious to us because it's also what we'd hope she'd do anyway.

I mean, Jesus Fuck, Trump comes out against shooting journalists, and this is the headline in the New York Fucking Times: Condemning Deadly Newsroom Shooting, Trump Tempers Hostility Toward Media.

Actual compromise and moderation are no longer on the table. The New York Times has decided that it is prepared to accept "not shooting journalists" as moderation. The Democrats need to respond accordingly.

43 - I mean, I don't really feel like that is responsive to what I was saying (or that I disagree with it). I also think things have gotten extreme and that "compromise" isn't really on the table (and almost no one thinks otherwise). All I care about is what does the best job of keeping the most power away from Republicans in a situation in which the Democrats have drawn a really shitty hand.

I'm not suggesting we don't fight whoever Trump nominates. I'm suggesting that maybe since this is a fight that there is no plausible chance of winning, after we lose we can skip the recriminations about how somebody could have done better but didn't try.

On another topic, I do think it's really important to mobilize heavily around the issue of choice, regardless of the extremely low likelihood of winning the fight over this nomination. The Supreme Court can't* prohibit legal abortion, it can just uphold as constitutional laws that do prohibit abortion, and so the abortion fight is very likely to spill into the actual legislative realm soon and folks need to understand that and mobilize around it.**

*as I know here someone will say if I let that sit there, that's not technically true, but it's unlikely enough that I'm going to say "can't"

**in many states it has been a live legislative issue but I do think the (in many ways already false) notion that the right to abortion is solidly protected by the courts has led to some complacency on the pro-choice side.

I just made my first ever political donation. The incumbent is probably the biggest local political asshole and he just resigned to lose an election for a different office so this may be the only chance to get a Democrat representing this largely rural and elderly councilmanic district. Also did you know that "councilmanic district" is a term?

The Supreme Court as currently comprised has lost its legitimacy. That should be the issue. Democrats should use the occasion of this nomination to yank the Overton Window to a place such that a total overhaul of the court (with, for example, 50 justices) is on the table and within reach the next time they are in charge.

43 not aimed at 42. I was just boggling.

I wonder if Murkowski and/or Collins would respond to a Roe-based freakout from their constituents.

Murkowski's generally willing to set aside her pro-choice principles when it counts, but we'll certainly do what we can.

Collins preemptively announced that she would not "consider" a nominee's position on Roe v. Wade in making a decision, about as clear a signal as you can get that you're not gonna peel her off on that issue.

Murkowski and Collins aren't going to turn, but its still worth raising a stink about it in their states. Make it cost them credibility with their voters.

Increasing the court to 50 would require renovating the courtroom and no way are voters going to accept the spending required for that.

Increasing the court to 50 would require renovating the courtroom and no way are voters going to accept the spending required for that.

They will if it's handled by a private-sector party with a solid reputation for financial probity. The Trump Organization, say.

46: If the Supreme court were to find that fetuses were persons from the moment of implantation, couldn't it make abortion unconstitutional? Then even those of us in liberal states would be screwed on abortion.

Also, I just heard a bunch of journalists criticizing the decision by that restaurant owner not to serve Sanders and Maxine Waters encouragement of the behavior as a further sign of the breakdown of civility. Give me a break.

Maybe there is a compromise to be had with the conservatives, a 50-member court where all of the members are fetuses.

"It is the court's decision that gestation time will now be extended to 10 months."

It seems pretty easy to me to argue that the 14th amendment prohibits abortion. There might only be 4 votes for it so long as RBG holds on, but it's certainly a lot more plausible than any of the ACA arguments. I think the more likely scenario is that they court finds abortions after 20 weeks without a court order violates the 14th.

The hearings for the new judge could be fun: "Mr. Nominee, imagine, hypothetically, that the Chinese government loaned the President's company $500 million in exchange for favorable treatment of a Chinese telecommunications company, and this case made it to the court... would you recuse yourself?"

59: Only section 1 seems relevant.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How would that argument work? Assume we interpret "persons" to include fetuses, but beyond that we're trying to make a good faith argument. Not being born, fetuses are not given citizenship rights by the amendment, so the first clause doesn't apply, nor does the second. As for the due process clause, in an abortion provided by a private provider using private funds, the State isn't depriving any person of life. Unless we're arguing that due process means the State has an obligation to make sure non-state actors cannot deprive others of life, liberty, or property--but wouldn't that have weird repercussions, on contract law or possibly even a requirement that the state must provide healthcare? (I'm assuming case law has already extended that clause from the States to the federal government.)

You're right, I missed the "state" part of the clause.

Playing around in that headspace, thinking of laws that define fetuses as persons and give them all the privileges and immunities thereof, makes me very queasy. But I suppose I should get used to that.

I doubt they'd rule abortion unconstitutional, but overturning Roe is likely and bad enough. Some people on Twitter have suggested stockpiling Plan B (and alternatives--apparently it doesn't work as well for people over a certain weight), since it's OTC now and has a four year shelf-life.

Dalriata, you discovered the state action doctrine all by yourself. It's kind of impressive!

If I was going to make things up, the best arguments (they're extremely bad ones) for the unconstitutionality of abortion would be (a) equal protection -- the state protects all categories of "life" from murder except this one, so therefore states need to either stop prohibiting homicide or include acts that kill fetuses in the general categories of unlawful homicide (b) some kind of ephemeral unemuerated natural law right of the fetus that's somehow being nterfered with. The first argument is contrary to current doctrine. would cause all kinds of huge doctrinal problems in other areas and probably require jailing pregnant women who abort for murder, something for which there's almost no political constituency. The second would basically be constitutionalizing Catholic natural law theology, something that also would cause huge doctrinal problems and also be in tension with whatever decision overturns Roe. So, sure, the Supreme Court can do crazy stuff but affirmatively finding that the constitution requires criminalizing or banning abortion is very unlikely to be one of those crazy things.

If a fetus is a person, then abortion is murder. I think that there might be an argument that that's unconstitutional so long as the State makes murder a crime.

But Roe is certainly gone; if it is not formally overruled states will be allowed to interfere with abortions sufficiently to drive abortion providers entirely out of state. In some states that's close to true already, so. An "interesting" thing to me is to what extent states are allowed to penalize or punish travel to other states for the purpose of getting an abortion. Eg can a clinic in Indiana have a regular free bus to Chicago? This assumes there's not a federal statutory abortion ban.

Since corporations are people, the Fourteenth Amendment bans state corporate dissolution laws. JUST KIDDING.

The crazy thing is going to be using the Constitution to mandate libertarianism.

Surely there's a Commerce Clause problem with states banning travel to other states for the purposes of an abortion, that's something that would have to happen at the federal level, right?

68 - yes, THAT is the crazy thing that is already happening and that we are all about to see a shit-ton more of. We will long for the days when the Supreme Court was being disappointing by failing to declare discriminatory social policy unconstitutional, in the near future once we learn that New York can't have state subsidized health care because it somehow interferes with Neil Gorsuch's contract clause.

69 - a state couldn't formally prohibit travel to another state, for a variety of reasons, and couldn't criminalize an act that takes place entirely in another state. But it might be able to criminalize "facilitating departure from the State for the purpose of obtaining an abortion" and punish doctors for recommending out of state clinics, clinics from arranging for out of state travel, women for planning to depart the state for that purpose, etc.

Blessed are the wealthy, for theirs is the ability to negotiate contacts that advance their interests using only economic coercion.

At least as big as Roe, I'd put the chances that the Supreme Court makes states change any of the already declared illegal district maps awfully close to zero.

Blessed are those who are poor in spirit, which, now defined by the Delaware contact law provisions, is anybody with assets over $14 million.

"something for which there's almost no political constituency."
Not yet, but a few years ago I wouldn't have thought there'd be a chance at a bona fide Nazi caucus in Congress either.
Anyway the obvious answer is they'll redefine naturalization to include fertilization. Hey baby, wanna go naturalize with me?

They're also likely to just get rid of all non-partisan districting. See Arizona State Legislature v. Arizona Independent Redistricting Commission.

76 - That's not really what that case holds, but ... the broader point that the Court will do what it can to preserve Republican-friendly redistricting at the expense of democracy, including putting up big barriers to nonpartisan redistricting, is absolutely right and the only actually important point, so who really cares.

On a semi-related point, and related to today's rally, this is, I thought, an excellent thread that puts some substance on why "abolish ICE" is a perfectly reasonable and practical goal and not just lefty sloganeering (not that there's anything wrong with lefty sloganeering). I dunno if others will find it helpful or interesting or not.

The "who really cares" was supposed to come across more as a friendly "you're basically right so who cares about not very important distinctions" than as a rude "who cares about this" but not sure that was conveyed.

||

Had an "End Family Separation" march from Foley Square and across the Brooklyn Bridge meet up with LB, Mr Blandings, Jack Mormon, and Tia, sadly we were not able to find dagger aleph in the crowd but she was also there. Looked to be a very large turnout with a lot popular support evinced by all the honking cars.

|>

78- you should explain that on a jacket.

81- the rally at the end of the Missoula one was interrupted multiple times by coal rollers (I think- maybe just motorcycles) idling & revving as loudly as possible.

There was also some supportive honking.

The closing number was an acoustic version of "Rockin in the Free World" by eight aging hippies including a flute player.

Uh. 79.

I went to the rally in Syracuse, NY. They had voter registration forms, DSA pamphlets being handed out, speeches. I did not stay til the end.

79 aging hippies?

"That's what I love about these hippies, man. They get older, I stay the same age."

79 Not very many. Mostly middle class at the rally from the looks of it. A lot of the honking cars were cabbies but by no means all.

Sally had a very sad take before the rally, wondering if anyone was going to show up because people were going to be too scared. And honestly? It struck me as an unusually middle class/white crowd (not exclusively white, but for NYC, leaning that way) for a march. I think a lot of New Yorkers are already feeling unsafe to stand up in public.

But turnout was good overall! It was a big crowd. (Also, crazy hot out.)

(AIHMHB but it keeps happening) that when I stay after my exercise class to do my PT, the gym owner (27 year old privileged earnest kid) likes to talk politics with me. While he is progressive, he also says things like, "If the election doesn't go our way in November, my girlfriend and I know it will be time to leave the country." Which just feels insanely ludicrous. You are young, white, blond and wealthy! You work in the fitness industry! They are not coming after you. Ever. Maybe stay and fight instead?

I've pushed back gently but probably not seriously enough. After all, where will I work out if he goes? Elections have consequences.

I went to the DC version of this. Turnout didn't quite fill up Lafayette park for the speeches portion, metro on the way down was equivalent to a busy rush hour. Turnout estimates I read are 30k people on a 100 degree day. A mix of old and young, white and not, but definitely a whiter crowd than the DC area.

This completely makes me sound like an internet blowhard along the lines of "I woulda charged the school shooter." But there are apparently ICE checkpoints on the NYC subway, and I'm kind of surprised that works -- I'd think you'd get reflexive civil-disobedience/interference from the general public.

90: Are you sure that's happening? I saw a few rumors about that, but none of them seemed confirmed.

https://twitter.com/SikhProf/status/1012017359316553728

The one time a cop asked to search my car, I said go ahead. Of course, I was 18, technically trespassing, and knew the car was clean.

91: I'm not sure -- I've seen, e.g., warnings on FB about specific locations (that is, I think I saw the same the same one referenced in that tweet), but nothing confirming them as true.

Maybe FB warnings about ICE checkpoints are the UMC equivalents of the "look under your car at Walmart because kidnappers are waiting there to get you" things I see from time to time?

There was a demonstration Saturday by a newly-forming elder activist group in a particularly rich, vertiginous neighborhood in the Oakland Hills, and reportedly many people were saying this was the first time they had demonstrated in decades.

But if it's not happening here, yay! and I hope it's because it wouldn't be comfortable or successful for the ICE agents.

That is ICE checkpoint warning in the NYC study. I'm sure there are plenty of very accurate warnings about ICE checkpoints in places less conspicuous and more western.

I saw something on Twitter about a demonstration somewhere in some small town in a very conservative town out west. Attendance was 15 people, population: 28.

This thread had 99 comments and i wish I could rewrite one.

The Vienna demonstration had about 100k people, but we were protesting the government's new labor law to let bosses demand up to 12-hour days, not locking kids in cages. (The government is fine with kids drowning in the Mediterranean; not sure about their position on cages.) Some badass-looking steelworker marchers at the link--and yes, I know, we lefties should stop obsessing over heavy industry versus, say, care work -- but they sure know how to march photogenically!

Yeah sorry but you don't get to march in that get up in Austria carrying torches without me finding you terrifying. It's unfair but those are the breaks.

"voest" = Voestalpine?

This flew past my radar at the time, but another scary thing: CBP agent interrogated journalist on sources and gave indications he had access to surveillance data on her.

If we get a full-on Trumpist putsch, ICE/CBP are the most likely foot soldiers. They've been politicizing for decades.

102: fair point!
103: yes, Voestalpine. Even though I know better, I'm still surprised to learn that there's still a successful steel industry here -- they're in the process of building a new plant.