motherjones--2020-09-19--Democrats Really Might Try to Pack the Courts

When news broke Friday evening that Supreme Court Justice Ruth Bader Ginsburg had died , hardly an hour had passed before Senate majority leader Mitch McConnell ( R-Ky. ) announced his intentions to confirm her replacement before the end of President Donald Trump ’ s first—and perhaps last—term .
There ’ s a good chance McConnell will get his way : He controls the Senate ’ s agenda .
There are 53 Republican senators , and in 2017 , McConnell changed Senate rules to lower the threshold of votes required to end debate on a Supreme Court justice to a @ @ @ @ @ @ @ if he does succeed in putting a third Trump nominee on the court , the circumstances could be disastrous for would-be President Joe Biden , who would be facing a court stocked with justices hostile to the Affordable Care Act , abortion rights , gun restrictions , and COVID-19 precautions—in other words , everything on Biden ’ s wish list .
“ Federal courts would have a Biden White House in handcuffs from day one , ” predicts Aaron Belkin , an activist , academic , and co-founder of Pack the Courts .
@ @ @ @ @ @ @ the laws will be sharply curtailed .
But more likely , they ’ ll just be struck down with very few exceptions.
” For the last few years , Belkin and his allies have been on a mission to remedy the deep partisanship by pushing Democrats , if and when they return to power , to expand the number of seats on the Supreme Court—a strategy called “ court packing.
” In the wake of Ginsburg ’ s death , they ’ ve doubled down on this idea , and some progressive Democratic @ @ @ @ @ @ @ Court packing has been seen as a third rail in Democratic politics ever since President Franklin Delano Roosevelt proposed—and failed—to expand the court ’ s bench to 15 in the face of five sitting justices who sought to undercut his New Deal .
But Democrats began to reconsider the idea after McConnell refused to hold confirmation proceedings for Merrick Garland , President Barack Obama ’ s nominee , on the premise that voters “ should have a voice in the selection of their next Supreme Court Justice ” and that the seat would @ @ @ @ @ @ @ seated .
That break from precedent was just the first of many moves that have reshaped the federal judiciary in the GOP ’ s image during Trump ’ s first term .
Trump has seated more life-appointed judges than all but one of his predecessors , according to a Brookings Institution analysis from January .
“ Which party is trampling democratic norms—the one contemplating adding seats to the court to alter its makeup or the one that , in 2016 , kept a seat open in order to deny President Barack Obama an @ @ @ @ @ @ @ colleague Pema Levy wrote last spring .
“ The steps that Republicans have taken to shape the Supreme Court over the past few years have led some Democrats to believe that it ’ s time to throw out the rule book and fight back.
” That line of thinking entered the Democratic mainstream during the 2020 presidential primary .
Eleven Democratic presidential candidates said they would be open to expanding the number of seats on the Supreme Court .
Contenders like former South Bend mayor Pete Buttigieg and Sen. Elizabeth Warren ( D-Mass @ @ @ @ @ @ @ be crucial for restoring the court ’ s legitimacy as a nonpartisan institution after the GOP ’ s success in politicizing it with its appointees .
Candidates for Congress have picked up the baton .
Mondaire Jones , a Democratic candidate for Congress in New York ’ s 17th congressional district , has put court expansion at the center of his campaign platform .
“ Even before yesterday evening , it was abundantly clear that we have a partisan right-wing majority on the Supreme Court that is hostile to Democracy itself and the @ @ @ @ @ @ @ me , citing the Supreme Court ’ s 2013 gutting of the Voting Rights Act , which was renewed with bipartisan support , as evidence .
Jones told me he plans to lead on the issue if he wins his seat , an all but assured outcome in his deep-blue district .
He ’ s called on his Democratic colleagues to include court expansion in H.R .
1 , their landmark democratic reform bill , which the party has signaled will be at the top of their agenda if Biden wins the White @ @ @ @ @ @ @ Jones explains , is to protect every aspect of the Democratic agenda .
“ If we don ’ t deal with the issue of a partisan conservative majority in the Supreme Court by expanding the court , then we ’ re going to be back where we started , ” he says .
Jones ’ calls will likely be met with support from at least some progressive federal lawmakers .
Marie Newman , a Democratic candidate for Illinois ’ third congressional district—and similarly on track to win her seat—tweeted her support of expanding @ @ @ @ @ @ @ Nadler ( D-N.Y. ) , chair of the House Judiciary Committee .
On Friday night , Sen. Ed Markey ( D-Mass . )
tweeted that he and his fellow Senate Democrats “ must…expand the court ” if they regain control of the Senate .
A majority of Democrats are on their side , according to a poll conducted by Data for Progress in May 2019 .
Belkin gave a briefing to Democratic congressional staffers on Supreme Court expansion last month .
There ’ s a school of thought that even the threat of @ @ @ @ @ @ @ White House might scare McConnell into not making good on his promise to confirm another Trump nominee .
So far , Biden has not signaled support for such a bold reform .
Last year , he told Iowa Starting Line that he ’ s “ not prepared to go on and try to pack the court , because we ’ ll live to rue that day.
” ( His campaign did not return a request for comment for this story . )
Republicans have taken a hard line against court expansion , and @ @ @ @ @ @ @ position might ultimately backfire .
Earlier this year , Belkin and fellow political scientist James Drucker tried to assuage those concerns with research on swing-state voters that found “ Republican and Independent voters are no more likely to vote , or to vote for a Republican candidate , if a Democratic candidate endorses court expansion.
” Biden has signaled a desire for an FDR-style presidency , premised on the sorts of sweeping reforms Roosevelt enacted to bring the country back from the brink of economic collapse and had also been derailed by a @ @ @ @ @ @ @ everything in the progressive agenda will be vulnerable to the stolen courts , ” Belkin warns .
“ Biden needs to realize that.
” *This article has been updated to clarify that Senate Republicans voted to change the threshold required to end debate on Supreme Court nominees , not the threshold required to confirm the nominees .

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When news broke Friday evening that Supreme Court Justice Ruth Bader Ginsburg had died, hardly an hour had passed before Senate majority leader Mitch McConnell (R-Ky.) announced his intentions to confirm her replacement before the end of President Donald Trump’s first—and perhaps last—term.
There’s a good chance McConnell will get his way: He controls the Senate’s agenda. There are 53 Republican senators, and in 2017, McConnell changed Senate rules to lower the threshold of votes required to end debate on a Supreme Court justice to a simple majority of 51.* And if he does succeed in putting a third Trump nominee on the court, the circumstances could be disastrous for would-be President Joe Biden, who would be facing a court stocked with justices hostile to the Affordable Care Act, abortion rights, gun restrictions, and COVID-19 precautions—in other words, everything on Biden’s wish list.
“Federal courts would have a Biden White House in handcuffs from day one.”
“Federal courts would have a Biden White House in handcuffs from day one,” predicts Aaron Belkin, an activist, academic, and co-founder of Take Back the Court. “In the very best case, the laws will be sharply curtailed. But more likely, they’ll just be struck down with very few exceptions.”
For the last few years, Belkin and his allies have been on a mission to remedy the deep partisanship by pushing Democrats, if and when they return to power, to expand the number of seats on the Supreme Court—a strategy called “court packing.” In the wake of Ginsburg’s death, they’ve doubled down on this idea, and some progressive Democratic lawmakers and candidates are joining them.
Court packing has been seen as a third rail in Democratic politics ever since President Franklin Delano Roosevelt proposed—and failed—to expand the court’s bench to 15 in the face of five sitting justices who sought to undercut his New Deal. But Democrats began to reconsider the idea after McConnell refused to hold confirmation proceedings for Merrick Garland, President Barack Obama’s nominee, on the premise that voters “should have a voice in the selection of their next Supreme Court Justice” and that the seat would remain vacant until a new president was seated. That break from precedent was just the first of many moves that have reshaped the federal judiciary in the GOP’s image during Trump’s first term. Trump has seated more life-appointed judges than all but one of his predecessors, according to a Brookings Institution analysis from January.
“Which party is trampling democratic norms—the one contemplating adding seats to the court to alter its makeup or the one that, in 2016, kept a seat open in order to deny President Barack Obama an appointment to the court?” my colleague Pema Levy wrote last spring. “The steps that Republicans have taken to shape the Supreme Court over the past few years have led some Democrats to believe that it’s time to throw out the rule book and fight back.”
That line of thinking entered the Democratic mainstream during the 2020 presidential primary. Eleven Democratic presidential candidates said they would be open to expanding the number of seats on the Supreme Court. Contenders like former South Bend mayor Pete Buttigieg and Sen. Elizabeth Warren (D-Mass.) argued that doing so would be crucial for restoring the court’s legitimacy as a nonpartisan institution after the GOP’s success in politicizing it with its appointees.
Candidates for Congress have picked up the baton. Mondaire Jones, a Democratic candidate for Congress in New York’s 17th congressional district, has put court expansion at the center of his campaign platform. “Even before yesterday evening, it was abundantly clear that we have a partisan right-wing majority on the Supreme Court that is hostile to Democracy itself and the will of Congress,” Jones told me, citing the Supreme Court’s 2013 gutting of the Voting Rights Act, which was renewed with bipartisan support, as evidence.
Jones told me he plans to lead on the issue if he wins his seat, an all but assured outcome in his deep-blue district. He’s called on his Democratic colleagues to include court expansion in H.R. 1, their landmark democratic reform bill, which the party has signaled will be at the top of their agenda if Biden wins the White House next year. The need, Jones explains, is to protect every aspect of the Democratic agenda. “If we don’t deal with the issue of a partisan conservative majority in the Supreme Court by expanding the court, then we’re going to be back where we started,” he says.
“Pretty much everything in the progressive agenda will be vulnerable to the stolen courts,” Belkin warns. “Biden needs to realize that.”
Jones’ calls will likely be met with support from at least some progressive federal lawmakers. Marie Newman, a Democratic candidate for Illinois’ third congressional district—and similarly on track to win her seat—tweeted her support of expanding the court. So did Rep. Jerry Nadler (D-N.Y.), chair of the House Judiciary Committee. On Friday night, Sen. Ed Markey (D-Mass.) tweeted that he and his fellow Senate Democrats “must…expand the court” if they regain control of the Senate.
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe — Rep. Nadler (@RepJerryNadler) September 19, 2020
A majority of Democrats are on their side, according to a poll conducted by Data for Progress in May 2019. Belkin gave a briefing to Democratic congressional staffers on Supreme Court expansion last month. There’s a school of thought that even the threat of court packing under a Democratic-controlled Senate and White House might scare McConnell into not making good on his promise to confirm another Trump nominee.
So far, Biden has not signaled support for such a bold reform. Last year, he told Iowa Starting Line that he’s “not prepared to go on and try to pack the court, because we’ll live to rue that day.” (His campaign did not return a request for comment for this story.) Republicans have taken a hard line against court expansion, and moderate Democrats have feared that embracing the position might ultimately backfire. Earlier this year, Belkin and fellow political scientist James Drucker tried to assuage those concerns with research on swing-state voters that found “Republican and Independent voters are no more likely to vote, or to vote for a Republican candidate, if a Democratic candidate endorses court expansion.”
Biden has signaled a desire for an FDR-style presidency, premised on the sorts of sweeping reforms Roosevelt enacted to bring the country back from the brink of economic collapse and had also been derailed by a reactionary high court. “Pretty much everything in the progressive agenda will be vulnerable to the stolen courts,” Belkin warns. “Biden needs to realize that.”
*This article has been updated to clarify that Senate Republicans voted to change the threshold required to end debate on Supreme Court nominees, not the threshold required to confirm the nominees.


motherjones--2020-09-19--The US Has Reached the Grim Milestone of 200,000 COVID-19 Deaths. We Could Have Avoided It.

The nation has reached a tragic milestone : By some counts , 200,000 Americans are dead from COVID-19 .
It didn ’ t have to be this way .
Public health experts , scientists , physicians , and policy experts have shown us the way forward—and yet our leaders still aren ’ t listening .
Over the past few months , for our series Pandemic-Proofing America , we ’ ve asked experts from many disciplines how best to protect America against infectious disease outbreaks in the future .
When it became clear that we ’ d reach 200,000 COVID-19 deaths @ @ @ @ @ @ @ a few and asked them a single question : In your opinion , what ’ s the one most important thing our nation could have done differently to prevent this tragic outcome ?
Here are some of their answers : Andy Slavitt , former acting administrator for the Centers for Medicare and Medicaid Services under President Obama : Preparation was our first chance .
When that failed , a national strategy was our next option .
When that failed , a humane and unified approach was our next option .
If all we @ @ @ @ @ @ @ ’ s a nation that needs to look at itself in the mirror .
Read our Pandemic-Proofing America interview with Slavitt here .
Uché Blackstock , emergency room physician and founder of Advancing Health Equity , a racial justice consulting practice : The most important thing this administration could have done is listen to public health experts .
This virus has been able to run rampant through our communities because science has been ignored and public health authorities have been sidelined .
We ’ ve seen what happens in other countries when their @ @ @ @ @ @ @ infection prevention measures , but this administration could not even do that .
So here we are , with a pandemic still raging , waiting for a safe and effective vaccine .
Read our Pandemic-Proofing America interview with Blackstock here .
Tom Frieden , former head of the Centers for Disease Control and Prevention under President Obama : A successful US response would have prioritized an organized , science-based approach which followed the basic principles of communication in an emergency .
Organized : with clear , coherent , unified leadership and management throughout @ @ @ @ @ @ @ that as we learn more , we rapidly incorporate proven measures to protect lives and livelihoods .
Communication , following the established CDC guidelines : Be first , Be right , Be credible .
Be empathetic .
Give people practical , proven things to do to protect themselves and their families .
Read our Pandemic-Proofing America interview with Frieden here .
Nahid Bhadelia , infectious disease physician and medical director of special pathogens unit at Boston Medical Center : Whether it ’ s Ebola or COVID-19 , infectious diseases epidemics require both systems @ @ @ @ @ @ @ population that is motivated to make a behavior change .
We failed in some major response activities such as testing and have never managed to catch up .
It took us a while to solve supply chain issues that led to disastrous outcomes in terms of access to PPE and other health care tools .
But really , our biggest failure is that a portion of our elected officials promoted the idea that we did not need to change our behavior in the middle of this crisis .
To maintain this delusion of @ @ @ @ @ @ @ reputation of our public health organizations and they have created a deep-seated resistance to simple public health measures such as masks and distancing that would have decreased the number of cases and allowed us to return to some balanced version of life before the vaccine .
We can always do better and should do better in pandemic preparedness in the future but what is killing us Americans now is the politics .
It ’ s always more instructive to see ourselves in the third person .
Imagine then that we are looking at @ @ @ @ @ @ @ resources per capita where a small group of ill-informed politicians swayed large swath of the population to believe that there was no pandemic and hence became the largest producer of COVID-19 deaths globally .
In another reality , the world would be decrying this ill-informed nation and looking to make humanitarian interventions to help .
Read our Pandemic-Proofing America interview with Bhadelia here .
See other interviews from our Pandemic-Proofing America series here .

The nation has reached a tragic milestone: By some counts, 200,000 Americans are dead from COVID-19.
It didn’t have to be this way. Public health experts, scientists, physicians, and policy experts have shown us the way forward—and yet our leaders still aren’t listening. Over the past few months, for our series Pandemic-Proofing America, we’ve asked experts from many disciplines how best to protect America against infectious disease outbreaks in the future. When it became clear that we’d reach 200,000 COVID-19 deaths, we got back in touch with a few and asked them a single question: In your opinion, what’s the one most important thing our nation could have done differently to prevent this tragic outcome?
Here are some of their answers:
Andy Slavitt, former acting administrator for the Centers for Medicare and Medicaid Services under President Obama: Preparation was our first chance. When that failed, a national strategy was our next option. When that failed, a humane and unified approach was our next option. If all we have left are miracle cures, that’s a nation that needs to look at itself in the mirror. Read our Pandemic-Proofing America interview with Slavitt here.
Uché Blackstock, emergency room physician and founder of Advancing Health Equity, a racial justice consulting practice: The most important thing this administration could have done is listen to public health experts. This virus has been able to run rampant through our communities because science has been ignored and public health authorities have been sidelined. We’ve seen what happens in other countries when their leadership supports and endorses the most basic infection prevention measures, but this administration could not even do that. So here we are, with a pandemic still raging, waiting for a safe and effective vaccine. Read our Pandemic-Proofing America interview with Blackstock here.
Tom Frieden, former head of the Centers for Disease Control and Prevention under President Obama: A successful US response would have prioritized an organized, science-based approach which followed the basic principles of communication in an emergency. Organized: with clear, coherent, unified leadership and management throughout the federal government. Science-based: so that as we learn more, we rapidly incorporate proven measures to protect lives and livelihoods. Communication, following the established CDC guidelines: Be first, Be right, Be credible. Be empathetic. Give people practical, proven things to do to protect themselves and their families. Read our Pandemic-Proofing America interview with Frieden here.
Nahid Bhadelia, infectious disease physician and medical director of special pathogens unit at Boston Medical Center: Whether it’s Ebola or COVID-19, infectious diseases epidemics require both systems that are prepared to respond and a population that is motivated to make a behavior change. We failed in some major response activities such as testing and have never managed to catch up. It took us a while to solve supply chain issues that led to disastrous outcomes in terms of access to PPE and other health care tools. But really, our biggest failure is that a portion of our elected officials promoted the idea that we did not need to change our behavior in the middle of this crisis. To maintain this delusion of normalcy, they eroded the agency and reputation of our public health organizations and they have created a deep-seated resistance to simple public health measures such as masks and distancing that would have decreased the number of cases and allowed us to return to some balanced version of life before the vaccine. We can always do better and should do better in pandemic preparedness in the future but what is killing us Americans now is the politics.
It’s always more instructive to see ourselves in the third person. Imagine then that we are looking at a country with some of the highest resources per capita where a small group of ill-informed politicians swayed large swath of the population to believe that there was no pandemic and hence became the largest producer of COVID-19 deaths globally. In another reality, the world would be decrying this ill-informed nation and looking to make humanitarian interventions to help. Read our Pandemic-Proofing America interview with Bhadelia here.
See other interviews from our Pandemic-Proofing America series here.


motherjones--2020-09-19--The New Republican Talking Point on Replacing RBG Before the Election is Nonsense

Within a few hours of Justice Ruth Bader Ginsburg ’ s death , an argument was beginning to crystallize on the right : the Senate needed to fill her vacancy on the Supreme Court , so as to prevent a constitutional crisis if a contested election went to the Supreme Court .
The main driver of this thinking was , naturally , Texas Republican Sen. Ted Cruz , a member of the judiciary committee who Presidential Donald Trump has floated as a potential nominee for the court .
“ Democrats and Joe Biden have made clear they intend to challenge @ @ @ @ @ @ @ a Friday night interview on Fox News .
“ They intend to fight the legitimacy of the election .
As you know , Hillary Clinton has told Joe Biden , ‘ Under no circumstances should you concede , you should challenge this election.
’ And we can not have election day come and go with a four-four court .
A four-four court that is equally divided can not decide anything , and I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court , particularly when there is @ @ @ @ @ @ @ and a contested election.
” Cruz invoked his own experience as part of the Republican legal team in Bush v. Gore , which effectively decided the 2000 election in favor of George W. Bush by ending the Florida recount .
“ Thirty-seven days the [ public ] did not know who the president was going to be , ” he said , “ and if we had a four-four court it could have gone weeks if not months.
” And the Washington Post ‘ s Robert Costa reported that the idea had some @ @ @ @ @ @ @ Republican caucus .
To the extent there might be a constitutional crisis , it ’ s more likely to be Trump ’ s doing .
The president has spent four years attacking the democratic process , lodging baseless accusations of voter fraud and calling into question the legitimacy of absentee balloting .
A top aide at the Department of Health and Human Services recently went on leave after telling supporters to buy ammo .
Joe Biden is…not saying things like this .
There ’ s a little bit of sleight of hand here @ @ @ @ @ @ @ argument implies that a presidential election being decided by the Supreme Court—for the second time in two decades , and almost certainly in favor of a Republican candidate who lost the popular vote—could be anything other than a constitutional crisis .
Bush v. Gore was a decision so partisan and unusual that the court itself stipulated that it shouldn ’ t set a precedent ; Trump v. Biden would be nothing short of constitutional hell .
Cruz , a former Texas solicitor general who clerked for William Rehnquist , knows perfectly well how @ @ @ @ @ @ @ t .
Which is to say he knows perfectly well the court can function with eight justices , and that doing so hardly poses some kind of existential threat in an election year .
You don ’ t have to take my word for this , you can take Cruz ’ s .
In 2016 , when the death of Justice Antonin Scalia left the chamber one man down—Scalia died in February , seven months earlier in the cycle than his good friend Ginsburg—Cruz was adamant the court would be fine .
Even @ @ @ @ @ @ @ of the election , in the months leading up to the vote , and both parties steeled themselves for a potential contentious aftermath , Cruz said that he ’ d do everything in his power to prevent a Democratic president from appointing a ninth justice .
If necessary , he said he would continue blocking a confirmation vote even if Clinton won .
“ There is certainly long historical precedent for a Supreme Court with fewer justices , ” he said at the time .
“ I would note , just recently , @ @ @ @ @ @ @ that the vacancy is not impacting the ability of the court to do its job.
” And he was right .
An eight-justice court is not that big of a deal .
At various points in its history , the court simply had an even number of members ( the number of justices is not stipulated by the Constitution ) .
Sometimes justices recuse themselves ; sometimes bullheaded senators refuse to vote a nominee and leave the court to work shorthanded for a full year .
In the event of a 4-4 decision @ @ @ @ @ @ @ ; the decision of the lower court—the decision that one party appealed to the Supreme Court—simply stands , without setting any further precedent .
( Like in Bush v .
Gore . )
Not that it ’ s likely to even come to that .
With the loss of the court ’ s liberal lion , the makeup of the current court is tilted heavily toward conservatives , so Cruz ’ s nightmare scenario of a split court isn ’ t even all that likely .
The most likely outcome of an election @ @ @ @ @ @ @ is a 5-3 decision in his favor .
Filling Ginsburg ’ s seat ASAP isn ’ t about averting a constitutional crisis or making sure there ’ s an odd-number on the court .
It ’ s about locking in conservative control of an entire branch of government for a generation before the other side consolidates enough power to stop them .
And that is a perfectly justifiable position for Cruz et al .
to take .
It ’ s why some of them got into politics .
But they should just say @ @ @ @ @ @ @ arguments like this .

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Within a few hours of Justice Ruth Bader Ginsburg’s death, an argument was beginning to crystallize on the right: the Senate needed to fill her vacancy on the Supreme Court, so as to prevent a constitutional crisis if a contested election went to the Supreme Court.
The main driver of this thinking was, naturally, Texas Republican Sen. Ted Cruz, a member of the judiciary committee who Presidential Donald Trump has floated as a potential nominee for the court.
“Democrats and Joe Biden have made clear they intend to challenge this election,” he said in a Friday night interview on Fox News. “They intend to fight the legitimacy of the election. As you know, Hillary Clinton has told Joe Biden, ‘Under no circumstances should you concede, you should challenge this election.’ And we cannot have election day come and go with a four-four court. A four-four court that is equally divided cannot decide anything, and I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of a contested litigation and a contested election.”
Cruz invoked his own experience as part of the Republican legal team in Bush v. Gore, which effectively decided the 2000 election in favor of George W. Bush by ending the Florida recount. “Thirty-seven days the [public] did not know who the president was going to be,” he said, “and if we had a four-four court it could have gone weeks if not months.”
We are one vote away from losing our fundamental constitutional liberties. I believe @realDonaldTrump should nominate a successor next week and the Senate should take up and confirm that successor before Election Day. pic.twitter.com/pS8i860RTa — Senator Ted Cruz (@SenTedCruz) September 19, 2020
Former George W. Bush speechwriter and torture apologist Marc Thiessen agreed:
Ted Cruz with an excellent point. If election is litigated can't risk having just 8 justices and the possibility of a deadlocked court. Could cause a constitutional crisis. — Marc Thiessen (@marcthiessen) September 19, 2020
And the Washington Post‘s Robert Costa reported that the idea had some traction in the rest of the Senate Republican caucus.
From my notebook/calls over the past hour: there are discussions within the Senate GOP about voting *before* the election, making the argument that 9 justices are needed in case of an election crisis. But Rs who want that aren't sure if Collins/Murkowski would fight it. — Robert Costa (@costareports) September 19, 2020
To the extent there might be a constitutional crisis, it’s more likely to be Trump’s doing. The president has spent four years attacking the democratic process, lodging baseless accusations of voter fraud and calling into question the legitimacy of absentee balloting. A top aide at the Department of Health and Human Services recently went on leave after telling supporters to buy ammo. Joe Biden is…not saying things like this.
There’s a little bit of sleight of hand here from Republicans, too, because the argument implies that a presidential election being decided by the Supreme Court—for the second time in two decades, and almost certainly in favor of a Republican candidate who lost the popular vote—could be anything other than a constitutional crisis. Bush v. Gore was a decision so partisan and unusual that the court itself stipulated that it shouldn’t set a precedent; Trump v. Biden would be nothing short of constitutional hell.
Cruz, a former Texas solicitor general who clerked for William Rehnquist, knows perfectly well how the Supreme Court works and doesn’t. Which is to say he knows perfectly well the court can function with eight justices, and that doing so hardly poses some kind of existential threat in an election year. You don’t have to take my word for this, you can take Cruz’s. In 2016, when the death of Justice Antonin Scalia left the chamber one down—Scalia died in February, seven months earlier in the cycle than his good friend Ginsburg—Cruz was adamant the court would be fine. Even as Trump called into question the legitimacy of the election, in the months leading up to the vote, and both parties steeled themselves for a potential contentious aftermath, Cruz said that he’d do everything in his power to prevent a Democratic president from appointing a ninth justice. If necessary, he said he would continue blocking a confirmation vote even if Clinton won.
“There is certainly long historical precedent for a Supreme Court with fewer justices,” he said at the time. “I would note, just recently, that Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the court to do its job.”
And he was right. An eight-justice court is not that big of a deal. At various points in its history, the court simply had an even number of members (the number of justices is not stipulated by the Constitution). Sometimes justices recuse themselves; sometimes bullheaded senators refuse to vote a nominee and leave the court to work shorthanded for a full year. In the event of a 4-4 decision, there’s not a crisis; the decision of the lower court—the decision that one party appealed to the Supreme Court—simply stands, without setting any further precedent. (Like in Bush v. Gore.) Not that it’s likely to even come to that. With the loss of the court’s liberal lion, the makeup of the current court is tilted heavily toward conservatives, so Cruz’s nightmare scenario of a split court isn’t even all that likely. The most likely outcome of an election decision, as Cruz certainly knows, is a 5-3 decision in his favor.
Filling Ginsburg’s seat ASAP isn’t about averting a constitutional crisis or making sure there’s an odd-number on the court. It’s about locking in conservative control of an entire branch of government for a generation before the other side consolidates enough power to stop them. And that is a perfectly justifiable position for Cruz et al. to take. It’s why some of them got into politics. But they should just say that, rather than insulting us with arguments like this.


motherjones--2020-09-19--Trump Wants “No Delay” in Picking a New Justice

Donald Trump made it clear that he would not waste any time replacing Ruth Bader Ginsburg , announcing his strategy , per usual , by tweet Saturday morning : Senate majority leader Mitch McConnell has already stated he won ’ t stick to his own rule and refuse to let a Supreme Court justice be chosen in the run-up to an election , but Trump ’ s confirmation officially sets the stage for a highly combative next several weeks in Washington .
Trump , who was giving a rambling speech when the news broke of Ginsburg ’ s death on @ @ @ @ @ @ @ stunned and offered condolences to her family when he was informed , but in the runup to the 2016 election , he used Twitter to air his feelings about Ginsburg , after she shared her feelings about him .
By Saturday morning , he was already appearing to gloat over his chance to replace Ginsburg .
Even before his tweet announcing he wanted to move quickly , he sent a sarcastic note mocking former Democratic majority leader Harry Reid , who removed the 60-vote requirement for judicial appointments which will make it easier @ @ @ @ @ @ @ Ginsburg .

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Donald Trump made it clear that he would not waste any time replacing Ruth Bader Ginsburg, announcing his strategy, per usual, by tweet Saturday morning:
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay! — Donald J. Trump (@realDonaldTrump) September 19, 2020
Senate majority leader Mitch McConnell has already stated he won’t stick to his own rule and refuse to let a Supreme Court justice be chosen in the run-up to an election, but Trump’s confirmation officially sets the stage for a highly combative next several weeks in Washington.
Trump, who was giving a rambling speech when the news broke of Ginsburg’s death on Friday night, initially appeared a bit stunned and offered condolences to her family when he was informed, but in the runup to the 2016 election, he used Twitter to air his feelings about Ginsburg, after she shared her feelings about him.
Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign! — Donald J. Trump (@realDonaldTrump) July 13, 2016
By Saturday morning, he was already appearing to gloat over his chance to replace Ginsburg. Even before his tweet announcing he wanted to move quickly, he sent a sarcastic note mocking former Democratic majority leader Harry Reid, who removed the 60-vote requirement for judicial appointments which will make it easier for Republicans to confirm a replacement for Ginsburg.


motherjones--2020-09-21--We Need to Save Abortion Rights. But Roe Isn’t Enough—and RBG Knew It.

While everyone has been screaming about Roe v. Wade since her death Friday night , it ’ s worth remembering that the beloved justice was famously critical of the landmark ruling , which was based on the right to privacy rather than a woman ’ s right to bodily autonomy .
She was also frustrated that subsequent judicial decisions put the right to an abortion in the hands of lawmakers and ( mostly male ) physicians , rather than the women who needed care .
Ginsburg , simply put , cut through the bullshit from the get-go ; she would @ @ @ @ @ @ @ complete , perfect equity .
We shouldn ’ t be , either .
In 2020 , it ’ s not exactly novel to say that the Roe decision is terrible .
Even though it has been canonized in the zeitgeist as shorthand for “ legal right to abortion , ” it ’ s pretty widely accepted that the decision is poorly constructed on weak doctrine , especially considering the historical heft of the thing .
But Ginsburg was critical of the ruling before it was cool .
In fact , she was so @ @ @ @ @ @ @ in Roe that a lecture she gave at New York University in 1992 alarmed the president of the National Abortion Rights Action League ( NARAL ) , prompting her to call on senators , who were then considering Ginsburg ’ s nomination to the Supreme Court , to discern “ whether Judge Ginsburg will protect a woman ’ s fundamental right to privacy , including the right to choose , under a strict scrutiny standard.
” It ’ s almost comical now—the idea that Ruth Bader Ginsburg , the Notorious RBG herself , @ @ @ @ @ @ @ possibly be anything less than pro-choice .
But at the time , her words were radical .
Even her allies weren ’ t sure what to make of them .
“ Measured motions seem to me right , in the main , for constitutional as well as common law adjudication , ” she argued .
“ Doctrinal limbs too swiftly shaped , experience teaches , may prove unstable .
The most prominent example in recent decades is Roe v. Wade.
” A couple beats later , she elaborated : “ The idea of @ @ @ @ @ @ @ and her place in society was less prominent in the Roe decision itself , which coupled with the rights of the pregnant woman the free exercise of her physician ’ s medical judgment .
The Roe decision might have been less of a storm center had it both homed in more precisely on the women ’ s equality dimension of the issue… ” She was never one to identify a problem without also bringing up a potential solution , or , in this case , a model for a one .
In her @ @ @ @ @ @ @ was asked about abortion and this lecture about Roe , she cited a case she argued in the 1970s for the ACLU , Capt .
Susan Struck v. Secretary of Defense .
In the case , a female Air Force captain became pregnant while serving , and she was given the option to either terminate the pregnancy or lose her job .
In her defense , Ginsburg argued that the Air Force ’ s decision violated the Equal Protection Clause in the Fourteenth Amendment—after all , men were not forced to choose between @ @ @ @ @ @ @ two key elements of Ginsburg ’ s argument were that the Air Force was violating Struck ’ s religious freedom—she was Catholic—and her liberty as established in the due process clause , because a woman ’ s choice is paramount to her freedom .
( Ultimately , Struck ’ s discharge was waived , and the case did not make it up to the Supreme Court . )
But as Ginsburg noted in ’ 93 and many times after , the Struck case could have established a real right to reproductive choice ; @ @ @ @ @ @ @ Roe ’ s grounding in privacy rights was bad , per se , it was that it would be stronger if it also included the equal protection defense .
In those Senate hearings , she put her thoughts on abortion this way : “ This is something central to a woman ’ s life , to her dignity .
It ’ s a decision that she must make for herself .
And when Government controls that decision for her , she ’ s being treated as less than a fully adult human responsible @ @ @ @ @ @ @ to boil Supreme Court justices down to their votes , using their positions to interpret their partisan leanings .
But Ginsburg didn ’ t really think like that—her legal mind transcended party and expectation and milieu .
For her , reproductive freedom was always about equality , the right women have to be respected in the world the same way that men are , which means the ability to make reproductive decisions on one ’ s own terms without fear of loss of income or job stability .
Ginsburg ’ s death now @ @ @ @ @ @ @ more fundamentally—to an ear-splitting degree .
President Trump has already irrevocably reshaped the federal courts , stacking them with judges who value conservatism above the constitution and legal precedent .
When the Supreme Court bench shifted further to the right after the retirement of Anthony Kennedy in 2018 , there were two threads of hope left for abortion rights : precedent—particularly as laid out in Planned Parenthood v. Casey and Whole Woman ’ s Health v. Hellerstedt—and Ruth Bader Ginsburg .
Without Ginsburg , there is little standing in the way of a @ @ @ @ @ @ @ legality of abortion access .
Her death swings open a locked door for anti-abortion legal advocates to rush through—and they will .
And so people who hold abortion rights dear will need to fight like hell .
But we also need to remember what Ginsburg , who could not just accept the “ win ” of Roe , taught us .
She had more foresight and legal aptitude than to simply be complacent with Roe ; she wanted something stronger , a ruling that could withstand future challenges and that centered women ’ @ @ @ @ @ @ @ .
So as we fight for Roe and for our rights , remember Roe is not the gold standard of abortion law .
Our work will not be done in just saving Roe .
It feels impossible right now , but perhaps opportunity will rise amid the chaos .
And anyway , a woman ’ s work is really never done—so let ’ s make sure RBG ’ s was not in vain .

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Supreme Court Justice Ruth Bader Ginsburg wanted more for women.
While everyone has been screaming about Roe v. Wade since her death Friday night, it’s worth remembering that the beloved justice was famously critical of the landmark ruling, which was based on the right to privacy rather than a woman’s right to bodily autonomy. She was also frustrated that subsequent judicial decisions put the right to an abortion in the hands of lawmakers and (mostly male) physicians, rather than the women who needed care. Ginsburg, simply put, cut through the bullshit from the get-go; she would never be satisfied with anything less than complete, perfect equity.
In 2020, it’s not exactly novel to say that the Roe decision is terrible. But Ginsburg was critical of the ruling before it was cool.
We shouldn’t be, either.
In 2020, it’s not exactly novel to say that the Roe decision is terrible. Even though it has been canonized in the zeitgeist as shorthand for “legal right to abortion,” it’s pretty widely accepted that the decision is poorly constructed on weak doctrine, especially considering the historical heft of the thing. But Ginsburg was critical of the ruling before it was cool.
In fact, she was so reproachful of the court’s reasoning in Roe that a lecture she gave at New York University in 1992 alarmed the president of the National Abortion Rights Action League (NARAL), prompting her to call on senators, who were then considering Ginsburg’s nomination to the Supreme Court, to discern “whether Judge Ginsburg will protect a woman’s fundamental right to privacy, including the right to choose, under a strict scrutiny standard.” It’s almost comical now—the idea that Ruth Bader Ginsburg, the Notorious RBG herself, our patron saint of feminism, could possibly be anything less than pro-choice. But at the time, her words were radical. Even her allies weren’t sure what to make of them. “Measured motions seem to me right, in the main, for constitutional as well as common law adjudication,” she argued. “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”
A couple beats later, she elaborated: “The idea of the woman in control of her destiny and her place in society was less prominent in the Roe decision itself, which coupled with the rights of the pregnant woman the free exercise of her physician’s medical judgment. The Roe decision might have been less of a storm center had it both homed in more precisely on the women’s equality dimension of the issue…”
She was never one to identify a problem without also bringing up a potential solution, or, in this case, a model for a one. In her 1993 Senate confirmation hearing, when she was asked about abortion and this lecture about Roe, she cited a case she argued in the 1970s for the ACLU, Capt. Susan Struck v. Secretary of Defense. In the case, a female Air Force captain became pregnant while serving, and she was given the option to either terminate the pregnancy or lose her job. In her defense, Ginsburg argued that the Air Force’s decision violated the Equal Protection Clause in the Fourteenth Amendment—after all, men were not forced to choose between procreation and military service. The other two key elements of Ginsburg’s argument were that the Air Force was violating Struck’s religious freedom—she was Catholic—and her liberty as established in the due process clause, because a woman’s choice is paramount to her freedom. (Ultimately, Struck’s discharge was waived, and the case did not make it up to the Supreme Court.) But as Ginsburg noted in ’93 and many times after, the Struck case could have established a real right to reproductive choice; it wasn’t that she thought Roe’s grounding in privacy rights was bad, per se, it was that it would be stronger if it also included the equal protection defense. In those Senate hearings, she put her thoughts on abortion this way: “This is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when Government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.”
We like to boil Supreme Court justices down to their votes, using their positions to interpret their partisan leanings. But Ginsburg didn’t really think like that—her legal mind transcended party and expectation and milieu. For her, reproductive freedom was always about equality, the right women have to be respected in the world the same way that men are, which means the ability to make reproductive decisions on one’s own terms without fear of loss of income or job stability.
For her, reproductive freedom was always about equality, the right women have to be respected in the world the same way that men are.
Ginsburg’s death now amplifies the threat to abortion access—and equality more fundamentally—to an ear-splitting degree. President Trump has already irrevocably reshaped the federal courts, stacking them with judges who value conservatism above the constitution and legal precedent. When the Supreme Court bench shifted further to the right after the retirement of Anthony Kennedy in 2018, there were two threads of hope left for abortion rights: precedent—particularly as laid out in Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt—and Ruth Bader Ginsburg.
Without Ginsburg, there is little standing in the way of a new Supreme Court case that questions the legality of abortion access. Her death swings open a locked door for anti-abortion legal advocates to rush through—and they will. And so people who hold abortion rights dear will need to fight like hell. But we also need to remember what Ginsburg, who could not just accept the “win” of Roe, taught us. She had more foresight and legal aptitude than to simply be complacent with Roe; she wanted something stronger, a ruling that could withstand future challenges and that centered women’s agency and health above all else. So as we fight for Roe and for our rights, remember Roe is not the gold standard of abortion law. Our work will not be done in just saving Roe. It feels impossible right now, but perhaps opportunity will rise amid the chaos. And anyway, a woman’s work is really never done—so let’s make sure RBG’s was not in vain.


motherjones--2020-09-21--Conservative Dark Money Group Plans to Spend More Than $2 Million to Boost Trump’s Supreme Court Pic

Conservative Dark Money Group Plans to Spend More Than $2 Million to Boost Trump’s Supreme Court Pick

The Judicial Crisis Network , the conservative dark money group that has spent millions to support or oppose judicial nominees , announced today that it will spend at least $ 2.2 million in ad buys to boost whoever Donald Trump selects to fill the vacant Supreme Court seat .
JCN played a pivotal role in boosting Trump ’ s two previous Supreme Court picks , Justices Neil Gorsuch and Brett Kavanaugh , spending tens of millions in support of their confirmations .
Since the death of Justice Ruth Bader Ginsburg on Friday , Trump and Senate Majority Leader Mitch McConnell @ @ @ @ @ @ @ they will try to confirm a new justice to fill the vacant seat as quickly as possible , despite pleas from Democrats to wait until after the election .
The situation has set up a fierce political battle , though one that Congressional Democrats don ’ t exactly have much leverage over .
JCN ’ s first ad paints Democrats as “ extremists ” who are “ shamefully trying to change the facts ” about confirming a Supreme Court justice too quickly in an election year .
“ There is no reason Judge @ @ @ @ @ @ @ could not be confirmed before the election , ” JCN president Carrie Severino said in a statement , referencing two of the women who are rumored to be atop of Trump ’ s justice shortlist .
Trump said on Monday that he plans to announce his pick as soon as Friday or Saturday , and as soon as that person is announced—whether it be Barrett , Lagoa , or someone else—they ’ ll have the support of JCN ’ s vast network of unknown conservative megadonors .
According to OpenSecrets , JCN received @ @ @ @ @ @ @ large $ 17 million donation from a single anonymous donor—in 2018 , the year that Kavanaugh was confirmed by the Senate .
The group spent tens of millions to support Kavanaugh ’ s confirmation , including defending him from the credible allegation of sexual assault by Christine Blasey Ford .
Little is known about the anonymous donors who are funding JCN , but the group has ties to Leonard Leo , a Catholic fundamentalist and longtime executive at the Federalist Society who is one of Trump ’ s top outside judicial advisers .
@ @ @ @ @ @ @ , Leo is at the center of the secretive JCN , which has been successful in boosting two other conservative judges to the Supreme Court—Samuel Alito and John Roberts—in addition to Gorsuch and Kavanaugh .
JCN also has ties to a number of other conservative groups with a vested interest in the Senate quickly confirming a Trump pick , including the National Rifle Association .
JCN contributed $ 250,000 to the NRA in 2018 , on top of $ 1 million it gave the group in 2016 and 2017 , according to OpenSecrets @ @ @ @ @ @ @ Leo , the public policy think tank America Engaged , gave $ 950,000 to the NRA in 2017 , and the NRA ran ads in support of both Gorsuch and Kavanaugh .
JCN ’ s $ 2.2 .
million ad blitz says it will soon air its first ad in several states with key Senate races , including Iowa , North Carolina , Maine , and Colorado .

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The Judicial Crisis Network, the conservative dark money group that has spent millions to support or oppose judicial nominees, announced today that it will spend at least $2.2 million in ad buys to boost whoever Donald Trump selects to fill the vacant Supreme Court seat. JCN played a pivotal role in boosting Trump’s two previous Supreme Court picks, Justices Neil Gorsuch and Brett Kavanaugh, spending tens of millions in support of their confirmations.
Since the death of Justice Ruth Bader Ginsburg on Friday, Trump and Senate Majority Leader Mitch McConnell (R-Ky.) have both said that they will try to confirm a new justice to fill the vacant seat as quickly as possible, despite pleas from Democrats to wait until after the election. The situation has set up a fierce political battle, though one that Congressional Democrats don’t exactly have much leverage over. JCN’s first ad paints Democrats as “extremists” who are “shamefully trying to change the facts” about confirming a Supreme Court justice too quickly in an election year. “There is no reason Judge Amy Coney Barrett or Judge Barbara Lagoa could not be confirmed before the election,” JCN president Carrie Severino said in a statement, referencing two of the women who are rumored to be atop of Trump’s justice shortlist.
Trump said on Monday that he plans to announce his pick as soon as Friday or Saturday, and as soon as that person is announced—whether it be Barrett, Lagoa, or someone else—they’ll have the support of JCN’s vast network of unknown conservative megadonors. According to OpenSecrets, JCN received $22 million in anonymous donations—including one large $17 million donation from a single anonymous donor—in 2018, the year that Kavanaugh was confirmed by the Senate. The group spent tens of millions to support Kavanaugh’s confirmation, including defending him from the credible allegation of sexual assault by Christine Blasey Ford.
Little is known about the anonymous donors who are funding JCN, but the group has ties to Leonard Leo, a Catholic fundamentalist and longtime executive at the Federalist Society who is one of Trump’s top outside judicial advisers. According to a 2018 Daily Beast investigation, Leo is at the center of the secretive JCN, which has been successful in boosting two other conservative judges to the Supreme Court—Samuel Alito and John Roberts—in addition to Gorsuch and Kavanaugh.
JCN also has ties to a number of other conservative groups with a vested interest in the Senate quickly confirming a Trump pick, including the National Rifle Association. JCN contributed $250,000 to the NRA in 2018, on top of $1 million it gave the group in 2016 and 2017, according to OpenSecrets. Another nonprofit group with ties to Leo, the public policy think tank America Engaged, gave $950,000 to the NRA in 2017, and the NRA ran ads in support of both Gorsuch and Kavanaugh.
JCN’s $2.2. million ad blitz says it will soon air its first ad in several states with key Senate races, including Iowa, North Carolina, Maine, and Colorado.