I hate it all a lot. Since there's nothing to be done, I would be heartened by enormous symbolic-value-only protests.

Sometimes I get to wondering how a mind like Barrett's actually works, and then I remind myself that I don't really care. We need to sweep the Presidency, Senate, and House, unwind the R control of the courts (preferably in a way that permanently reduces the significance of new judges/justices), and let the Barretts of the world figure out how to catch up with the actual country they're living in. Which may actually turn out to be interesting to watch. You have a large cohort of non-stupid people who have devoted their careers to being good little Federalist Society bots. What will they become when being a Federalist Society bot is no fun any more?

I listened to a few moments and am now puzzled that Trump picked Kavanaugh before her. (There was some deal with Kennedy??) ACB has the Michele Bachmann eyes and is surely as terrible as can be. But she isn't provoking the wave of insane rage over sexual assault that Kavanaugh did. ACB probably wouldn't have cost Collins her race the way that Kavanaugh did. Picking her before Kavanaugh would have gotten Trump the usual upset at picking any conservative judge, but not the crying over his love of beer, the calendar analysis, the whole terrible scene. He should have picked her last time.

Seconding 2, and 3 was a question people asked at the time -- I think it was an attempt to follow Kennedy's wishes.

4: It would have exceeded the quota of women allowed on the Supreme Court.

Also with Clarence Thomas there would have been a majority of justices that the Founders wouldn't have allowed to even vote in an election, let alone on the Supreme Court. Imagine the anguish that would have caused to originalists.

4 is correct. It would have been a betrayal of Kennedy's legacy, if any, to nominate anyone but his chosen successor. He would have gotten mad and... written an editorial? Gotten his son to stop Deutsche Bank from lending to Trump?

Drain the swamp, into the bigger swamp over here.

I'm thinking the Founders would also have had a beef with a Court consisting of six Catholics, one almost-Catholic, and two Jews.

We need Judge Halford.

Or Flip. I don't know about other Protestant lawyers.

You can tell this is a complete sham because none of the lawyers are commenting.

12: Hey, I'm in recovery, but I still have an active license.

ISTM that 3 assumes that Trump cares anything at all about the courts or the law -- except concerning how they rule in his cases. It's only about appearing to be a winner and dunking on his 'enemies.' Kavanaugh brought way deeper anti-Clinton experience to the position, but I bet Trump only really warmed to him after his angry-to-the-point-of-unhinged-as-God-is-my-witness-I-will-have-my-revenge speech. He knows that ACB is a home-run for the pro-lifers, and he has got to get them to vote, but I can't imagine he cares at all about her beyond his expectation that she'll pay him back for the appointment with a ruling or two.

Also, your insane rage, Megan, is what he really wants.

My apologies! You need to be much more ostentatious about it.

The real explanation is probably that this is a terribly boring "hearing" that has concealed far more than it has revealed. Megan is right about the eyes, though.

Yeah, it's not like I'm actually watching the hearings or anything. I'm just following the box score on Twitter. I expect Barrett to be to Scalia as Alito is to Thomas: very far from my views on both analysis and outcomes, but in a more doctrinaire and less interesting way. Neither she nor her sponsors can be reasoned with in a forum like these hearings, so it's just about scoring points for the next round in the political arena.

Actually now Thomas seems to be just purely batshit insane, and Scalia was phoning it in for his last couple of decades, but some of their stuff was actually interesting when I was in law school 30 years ago.

The stakes are so needlessly high. Ten year terms, lifetime salary ($500k/yr?) and a prohibition on any other income ever. Then it would be a big deal, but not momentous every time one of them died.

If Ginsburg could have lasted 4 more months. If only. I don't think Biden would push to expand the Court. I really feel that a lot of its legitimacy has been lost already, and treating as sacred just gets in the way of progress.

I do hope that Pelosi is planning to suddenly find a way to reach a deal with Mnuchin at whatever point in the next couple of weeks will do the most to jam up Bad Yertle's plans for Barrett's confirmation vote.

My twitter has it that Barrett is an originalist who is gunning to rule Medicare and Social Security unconstitutional and this is why she wouldn't say that Medicare was constitutional. Is this real? Can the court just strike down social security? What happens to our elders who are on it if that happens?

22: Seems like it would be an absolute clusterfuck that would drag out for years and involve all branches of government extensively. I know that's a Barrett-like non-response, but without an actual copy of some conservative billionaire's 10-point evil plan to wipe out social insurance and replace it with novel forms of lifelong indenture, I don't think there's a straightforward scenario where everyone is instantly hung out to dry. It's interesting/terrifying to think about how the relationship between legislature and judiciary might look under different scenarios, though.

Also hey, Frowner, how are you doing? I hate this shit so much!

I heard two different theories on why Kavanaugh. One is that it was a straightforward deal -- Kennedy stepped down on the condition that they nominate his choice of successor. Trump could have reneged on the deal once Kennedy resigned, but why? Because Kavanaugh has committed sexual assault? Why would Trump care?

The other is that he just liked Kavanaugh better. Now that it's election time he needs a boring psychopath, someone whose pulse won't go above 60 when they gut the Constitution, but will leave the smallest possible impression on the public. Back then it was less important.

22: In theory, the Court can strike down any law, but originalism is a lie to promote the Republican agenda, not an actual principled stand anyone takes. Striking down Medicare and Social Security would end the Republican party, so they won't do it.

25: Counterpoint -- Hard Brexit would end the Union that is referenced in the "Conservative and Unionist Party" so they don't do it.

It was obviously in the interest of Republicans in Congress up for re-election to have passed some sort of spending package months ago. They did not do it.
I don't understand what is going on in the world today.

So if Biden wins Texas by one absentee vote, I want y'all to know it was me.

My two tweet-length thoughts on the current state of the Supreme Court are --

Fight for fifteen! Five distinguished American women and finally a hearing for Merrick Garland.

Although I am also entertaining arguments for 17. Then we can meet RBG's dictum about women on the Court, "When there are nine."

I think Thomas would strike down social security. But there's just no way you get to 5 votes. No chance you get Roberts or Kavanaugh, don't expect Gorsuch either. Likely you get 1 (Thomas) or 2 (Thomas and ACB).

If a Republican administration were pushing it hard you would get Alito.

I don't think they'd have to strike it down to kill it. Trump's stimulus plan would have killed it, after he was out of office.

It's pretty obvious that somebody who says "sexual preference" in the place of "sexual orientation" is just looking for a way to allow banning gay marriage, isn't it?

As a start.

Garrison Keillor also sucks, relatedly.

34: Sure, but we need him to win Wisconsin.

I thought he was from Minnesota.

Agree with 30, but I doubt the premise happening. There's a line between "would do it if Fox and Rush were pushing for it" and "would do it if Fox and Rush and McConnell were pushing for it" and Thomas and Alito are on opposite sides of that line.

34: Christ, what an asshole.

36: Oh, yeah! I guess we don't need him after all!

32: I'd believe that was an unintentional tell about the people she talks to and how they talk, rather than a deliberate signal. But yes, she's primed to overturn Obergefell, no question.

Somebody should write a book on the verbal tics of the American right. I recall a poll that called me last month and the guy kept saying "Democrat Party."

To be clear, I'm not going to read a whole book myself. I want somebody to write a book and somebody else to pull out the key parts.

The Democrat party thing baffles me. I don't see why they do it, but I also don't see why Democrats react strongly to it -- it's sort of wrong, and a tell that the speaker is a Republican, but not super insulting or anything.

I have a friend who reads all the deep-thinking nonfiction (although I'm pretty sure he has finally given up on Thomas Friedman). I maintain that I am at least as well-informed as he is because I read a lot about those books.

I yelled at the guy for it, but mostly because I enjoyed yelling at somebody who was being paid by the Republican Party to listen to me say that I'm voting for Biden.

43 I find it annoying, which is why they do it, and maybe that's why I find it annoying. Maybe there's something about the hard jangle of using a noun as an adjective, or the sound of 'crat' -- I don't know about he psychology of the sound, but what I do know is that people trying to get a rise out of me is something I find utterly delegitimizing. A strong percentage of Trumpism is about 'owning the libs' and the fundamental immorality of cheering them putting kids in cages because it's going to piss me off is just so unfathomably awful. This tic is a tip of that iceberg, but it shows the same bad motive. Or, at most charitable, it shows hanging around people with bad motives.

thefashionair

thefashionair

Dude, all the people who click on links in comments are at Crooked Timber.

Random explainer on Democrat as slur (it goes back to the 1950s?). I read something similar a while ago but of course have no memory of the source.

I am one of those people offended by the "Democrat Party" thing (and recently admonished a colleague for using the phrase in written material).

Chuck Schumer is a Jewish senator. It would be grammatically correct to call him a Jew senator, but I would nonetheless advise against it.

Jewic?

I have Democratic friends who have unconsciously picked up the phrase "Democrat party." It grates on me when anyone uses it - just such a Limbaugh-esque sneer to it.

34 et seq.: There seems to be a rash of "Roe v. Wade is doomed but we can still soldier on in the states"-ism going around. The general tenor is that it would motivate the silent majority who are pro-choice. This is pretty much ridiculous wishful thinking but I've seem multiple articles and op-eds that are suggesting it. It's also objectively harmful because "soldiering on the states" basically means "giving up on anyone who wants an abortion in a Red State."

I'm not sure if the wishful thinking isn't assuming Roe is not already dead and it's only the details being worked out.

54 What I find most exasperating about this is that it is 100% certain that with Roe gone, Congress is 100% likely to ban abortion nationwide without life/health exceptions. It'll take a Republican trifecta, but that happens often enough that the interregnum of 'leave it to the states' will be short.

55: I'm having trouble working out all the negatives in that sentence.

It sounded better in my head.

As mentioned in the article in 50, I 've always assumed it was about not conceding that they were "democratic." But I assumed it originated in the early '90s in the Gingrich-Limbaugh axis of evil. Times it has annoyed me, Bush using it in the 2004 debates and Neil "fucking pseudo-moderate" Gorsuch using during his confirmation hearing. Actually what really irked me is that their usage did not get highlighted in the press (especially for Gorsuch). Broken record, but ebery Dem nominee is expected to genuflect to the Rep senators (and generally do).

Whether Roe can continue on in zombie form depends not only on whether Roberts can contain his colleagues, but whether states will play along. They won't. The way Barrett and her colleagues can hollow out Roe is by approving restrictions like those recently overturned in Texas and Louisiana, and other more restrictive versions. But some state is going to enact a complete ban, or a ban after 6 weeks, and there's just not going to be a way to affirm that without saying that the federal constitution just has nothing the say about whether a state can ban abortion. And a week from tomorrow, there will be at least 5 votes for that.

Roberts getting more help to cement his place as being one of the more *effective* racists in recent US history. (Certainly not the biggest one on the Court thanks to Mr. Alito). Directly like Shelby and indirectly as in Sibelius he has done yeoman's work on the subject.

The Senate Judiciary Committee has just moved forward with the nomination despite not having a quorum, according to Sen. Schumer on Twitter. There's some awesome rule of law right there.

62: Ugggh.

I have had occasional moments of hope that something could interrupt the process of confirming Barrett (recognizing that was unlikely) but this entire process, since Ginsberg's death, has been deeply depressing and painful.

Well, Congress isn't passing a federal ban as long as we have the House, but who knows how long that lasts if the Supreme Court keeps taking even more out of the VRA.

And the census being fucked up.

In that everything Trump is Barrett-related: prosecutors spent three years chasing down suspicions that Trump got his late-2016 $10 million from someone through an Egyptian state bank (el-Sisi?). They came up empty, but mostly because Mueller was too chickenshit to subpoena Trump's finances.

||
Has this happened here yet? https://xkcd.com/2363/
|>

Nope. My kids read a bunch of the blog and gave me shit about having been a jerk to people (text, that is), but they haven't left any belated comments.

I keep reading the post's title as "ACAB" and well, yeah, it fits

Haven't you been a jerk to other people? Not recently, to be sure.

You'd have to read the comments for that. Text probably drew my jerkiest post ever.

I can't even remember that far back.

So, for the sake of keeping Unfogged up to date with Twitter: strictly speaking, Trump did not admit that he ordered an extrajudicial killing, but he acknowledged and praised the killing at a rally and certainly seems to wish to share credit for it. Did he order it explicitly? Probably yes, but there's still a little bit of wiggle room. Anyway, I assume every far right terrorist and shit-stirrer is going to hear "we've got your back" and I consequently don't know how to add this to my predictions of election-night mayhem.

Who here is going to be out watching the polls on Election Day?

Oops, new thread! Will repost in new thread.

23: Not that great, actually, but I guess better than I was. I'm really trying to live day to day and not think about the future. It's disorienting - I can't be out doing political work, I can't think about the future because it makes me spiral...I really don't feel much like myself anymore.

I feel like I can't plan even the smallest thing because I'm pretty much on the "I will be unemployed in a year and have to sell up and move across country to family IF society hasn't actually collapsed totally in that time" thing and so even stuff like "I'd like to make a container garden next spring" or "I'd like to put up a shelf" seem really pointless and stupid. I keep thinking that these are probably the nicest living conditions I'll ever have and in a year I won't have most of my furniture or my own space, etc.

But I am not actively suicidal right now, so I guess that's something, sort of.

I've forgotten -- what's happening to your job? Are you still in administration at a college?

To what country should President Biden send Sen. Feinstein as an ambassador?

76: I actually have a job I like a lot doing billing and low level financial stuff for a specialized research unit - I was doing secretarial work until a few years ago but wanted to get into something more specialized. The trouble is, my salary comes largely from the profits we make on providing scientific services, and of course everything has slowed down tremendously because of covid. We have money set aside to cover me for this fiscal year, but I'm pretty sure I'll be laid off next summer, and with the economy as it is and pink collar jobs as they are, I just don't see how I'll be able to get anything else that doesn't put me at risk of the virus. I don't have a formal accounting qualification although I've taken a few accounting classes.

77: Monaco.

77: France? Isn't that the preferred glamor destination for useless people? The UK probably requires an actual diplomat these days.

78: Please take care as best as you can. There is a lot to worry about, but it's too soon to assume that the economy won't have made some adjustments by next summer.

Seconding 81. I don't know what sort of research your organization does, but I think there's reason to be optimistic about the direction of research funding.

Also, if your funding does dry up? I would be very optimistic that your supervisors will find you something else in the organization. While I can't evaluate your work performance first hand, knowing you online is enough to say you're brilliant and conscientious. Someone who's been appreciating your work, even if they can't keep employing you, is very likely to do someone with a job opening a favor by connecting the two of you.

Thirding 81, may reply to substance later, and no one inclined to worry should read the next paragraph.

...

Truly, one of the most dispiriting news days in a while. The tweet about how Feinstein's cuddliness with Graham may be handing him the election is arguably the low point so far.

Thanks for saving me from having to look up 77.

I wonder how many times this has happened here (see addendum): http://languagehat.com/jeremy-ajp-rip/

That is sad (and gave me a wave of blog-nostalgia). I'd joke about it but I feel too dismal.

Dismal isn't just a river in Nebraska.

Cairo isn't just a city in Nebraska.

I see you tempting fate, Moby.

Is Megan in my house?

I don't think we've had enough deaths for anyone to have died commenting -- only a very few I know of.

Obviously, I'm the third Moby. The other two retried, but are still alive.

Feinstein is a fucking embarrassment and needs to retire.

"died laughing at own joke while commenting" is the next stage, I think.

93: The Dread Commenter Moby

77: Vanuatu, Bhutan, or others similarly situated.

I hadn't heard a Republican ad on the radio in a while, but just now they ran an attack ad about Clinton.

As soon as they figure out she's not running this year, we're in real trouble.

The media environment is very different from 2016. I don't watch much TV, but whenever I do, I hear a Biden ad and I don't think I've heard a Trump one in a week. The radio is mostly Biden.

Wait. They are spending actual money attacking Clinton? I assumed it was just ad lib frothing during rants. That is so nuts.

I didn't listen to the whole ad. It was "Hilary Clinton called hard-working people like you 'deplorable'".

In radio-ad-guy voice.

Now there's a Trump ad on the TV.

Somebody is already subtweeting Trump with a Mr. Rogers themed ad on the TV. It's a brief version of this. Never seen it air before.

102: "Congratulations. You've spent the past four years proving her right."

The last radio ad I heard was an attack on Biden for being weak, complete with manipulated audio of him making a verbal stumble. I really don't see that the dementia attacks have been landing, but I guess they have nothing.

So, something like 30% of all the ballots in the county are already in. And that probably skews urban. I'm kind of thinking we're going to have pretty high turnout.

On brand still.

Lawyers, is this as bad as it sounds? https://www.lawyersgunsmoneyblog.com/2020/10/the-textualists

Heh, pseudonym slip (thanks to my device deciding to auto fill my name). Would somebody be willing to change that?

Thanks.

110 You mean to saw that water is wet? Conservatism is bad faith. There's no point is looking for logic or consistency in it. Or in treating its adherent as if they might be decent human beings. Best just go with a rebuttable presumption.

110 You mean to saw that water is wet?

Oh, sure, I'm not surprised to see that there are examples of Conservative judges ruling in ways that appear to ignore both the law and human conscience. I'm just curious if that is a good example of if there are reasons why the decision is questionable but based on a theory of law which isn't completely absurd.

Reading the opinion, they've done a decent job of cherry picking to find a way to say that this is the right result under Wisconsin law. They make it sound like the test for scope of employment is that the employee was in some way, some minimal way, trying to advance the interests of his employer. Nothing about this conduct fits that. So, not within the scope.

I have not done the reading myself, but commentary I've seen has said that's the wrong test under Wisconsin law, and that there was precedent for sexual assault being within the scope of employment. The test, from what I read, should have been something more like was the action facilitated by the fact of the employment. So if the crime had been mail fraud, even if committed during working hours, being a prison guard wouldn't have aided the commission of the crime. Raping a prisoner, on the other hand, is definitely facilitated by being a prison guard.

Let me see if I can back that up better.

Coming from a position of not being a lawyer, can you (LB, CC, etc.) explain what the outcome means? Is it that the County is liable for $6.7m if the rapes were facilitated by "scope of employment", and someone else (the guard?) is liable if it is not? Thanks.

The issue is whether the county has to indemnify the guard. The verdict is primarily against the guard, but of course he doesn't have the money to pay it. If the wrongful action was committed within the scope of his employment, though, the county has to pay on his behalf.

116 I'm not disagreeing with you; but the 7th Circuit found at least one Wisconsin case that seemed to say that facilitation isn't enough. https://www.leagle.com/decision/infco20180914205 See the last case in n.4.

117 The County is off the hook. The judgment against the (former) guard was not appealed and remains valid.

Yeah, I'd have to read the cases myself to see if that's a fair characterization. They seem to have done something in the case which is correct but unusual -- disregarded squarely on-point precedent from their own, federal court, interpreting state law, in favor of what they say is contrary state court precedent. That's the right thing to do if the prior federal decision was in error, but mostly the prior federal decision isn't in error, and in my experience federal courts usually don't disregard federal precedent under those circumstances.

If you want to create a vicious gulag in America, letting the governments that run the jails pass all financial responsibility down to the employees is a pretty good way to go about it.

Saying that's the right thing to do, to be clear, depends on whether the prior federal precedent genuinely was wrong, and so if the state court cases genuinely did hold the reverse. If so, following the state courts was correct, but an unusual correct thing to do -- when federal courts go off the rails on a point of state law, they will often follow each other for ages rather than returning to follow the state courts.

They also cite an unreported 7th Cir case for the proposition that in Illinois, sexual assault is always outside the scope. Obviously, this doesn't tell us anything about what Wisconsin law is. But you can say that they haven't stretched Wisconsin law into something completely beyond the pale. Here's the relevant excerpt:

Under respondeat superior, an employer may be held liable for the "negligent, willful, malicious or even criminal acts of its employees, when those acts are committed within the scope of [the employee's] employment." Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009). Illinois law requires three factors to be satisfied for the doctrine to apply: (1) the conduct is of the kind the employee is employed to perform; (2) the conduct occurs substantially within the authorized time and space limits; and (3) the conduct is actuated, at least in part, by a purpose to serve the employer. Id.; see Doe v. City of Chi., 360 F.3d 667, 670 (7th Cir. 2004).

Johnson contends all three factors are satisfied, but Illinois courts have explicitly declared, "[S]exual assault by its very nature precludes a conclusion that it occurred within the employee's scope of employment under the doctrine of respondeat superior." Doe v. Lawrence Hall Youth Servs., 966 N.E.2d 52, 62 (Ill. App. Ct. 1st Dist. 2012) (citing Stern v. Ritz Carlton Chi., 702 N.E.2d 194, 198 (Ill. App. Ct. 1st Dist. 1998); Deloney v. Bd. of Educ., 666 N.E.2d 792, 798 n.5 (Ill. App. Ct. 1st Dist. 1996)).

That's an odd thing to have cited at all, though. It's absolutely not precedent of any kind -- Illinois law isn't Wisconsin law, and what a federal court thinks Illinois law is really isn't Wisconsin law. That doesn't make the decision wrong as a matter of Wisconsin law, but it does look a bit like bolstering a weakly supported decision.

122 The federal judges know each other, and one would assume that those are mostly relationships of mutual respect -- even when they don't see eye to eye on an issue. Facts of cases are always different, and he approaches taken by counsel are different too. In n.3, the Circuit says that if the lower court wanted to follow a federal court, it should have picked a different decision, but it's no supposed to do that anyway.

I think ACB is going to be bad, bad, bad. I remember the controversy when Manion was nominated for the Seventh Circuit, and thought he was going to be bad bad bad. Don't ever vote for Republicans! Not for President, US Senate, or the Wisconsin Supreme Court.

Always be Biden Campaigning.

LB & CC: Thanks! I feel somewhat, provisionally, enlightened.

18,000 steps for literature spreading.

127 seconded. Thank you.

Know what? Gorsuch is right in his dissent today from the denial of cert in Bovat v Vermont. That he could only get Kagan and Sotomayor to join him only underlines the need for more folks. He's wrong, but in the minority, on whether to fuck up voting in Pennsylvania, so there's that.

https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf