Author Topic: Justice Antony Kennedy retiring  (Read 7744 times)

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #100 on: June 29, 2018, 08:37:37 AM »
You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

Yet there are some. Or are some originalists not originalists?

Is this a "not a true scotsman" issue?

Not at all.  If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'.   You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.

No, I think it is a "not a true scotsman" issue.

Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."

If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.

But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?


* https://en.wikipedia.org/wiki/No_true_Scotsman

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #101 on: June 29, 2018, 08:58:28 AM »
STOP.  Just STOP.  This is not dystopia.  This is not hopeless. 

My son has multiple disabilities (pre-existing conditions), is an atheist (religious minority), and is LGBT.

People like to talk about religious liberty being about serving LGBT folks, but what is not mentioned is that it is a slippery slope that can be extended to so many things.

I would not surprised if going forward a case goes to the courts where someone is denied an apartment because they answered "no" to the question "do you accept Jesus Christ as your lord and savior?" on a rental application. 

A conservative court could invalidate gay marriage rights, uphold laws used to discriminate against LGBT folks (in many places it is legal to be fired for being gay), uphold "religious liberty" laws to all business so they can discriminate against all non-Christians, and gut the provision of the ACA that requires health insurance companies to provide insurance to people with pre-existing conditions. 

To my child who is soon to be an adult - in the next few years his right to marry can be taken away, Jim Crow type laws can be upheld allowing full discrimination by businesses including in housing, and he could be barred from the private insurance market.  None of those are alarmist or unthinkable given who is in charge of all 3 branches of the government and their recent actions in the past few years.   

Sounds pretty freakin' scary and dystopian to me.
 

If you have traveled around the country at all, you have probably spent time in places where people have always been able to refuse to serve people for being homosexual, yet how many places does it happen?  I don't want to minimize how hurtful it must feel when people are refused service, but as bad as it is, it's not a dystopia.  In most places, businesses will risk going out of business if they openly discriminate against homosexuals.

With respect to housing, the acceptance of jesus question is already clearly prohibited by the fair housing act for all rental housing other than owner occupied quadplexes, triplexes, or duplexes.  I don't think there's going to be any political interest in changing this. 

THe occupational stuff is worse, but again, most businesses are already operating in areas that do not protect homosexuality as a protected class (or at least did until the "gender non-conforming" suits started gaining steam).  So it's not likely to get worse at least.


Except with the baker case just being decided, there is a judicial precedent for all the people who want to discriminate out there.  All the congress needs to do is pass a law that says "religious Liberty" trumps discrimination law and then a conservative court upholds it.
  Again, most of the U.S. didn't need legal precedent.  They already could legally discriminate against homosexuals.  The only places federal law would change anything would be states and/or cities that already have majorities that want to ensure protection for homosexuals from discrimination.  I'm not saying there won't ever be anything bad happen, I'm just saying if your worried about your son all the sudden being denied service, it's just not going to happen without a seismic shift in opinion in this country.   

You sound very much like the old, white, christian, straight, conservative man I was talking to after Trump was elected.  I was very worried about repeal and replace for the ACA and losing all the protections in terms of pre-existing conditions at lifetime limits.  It was when my son was having about a $1Million a year in medical expenses (he had cancer and bone marrow transplant).   The man said acted like I was being hysterical and then said "they won't take those away".   When I challenged him, he replied "they would never do that to people". 

Sure enough, the last version of repeal (no replace in sight) had a provision that left it up to states to make enforcement of the pre-existing conditions protections optional.  Basically taking that protection away for everyone in a red state.
  It's funny that you think I sound like that guy since i literally said nothing about healthcare.  But if it's small comfort, despite the rhetoric, people weren't allowed to die in the street before ACA.  I had a family member and a friend dealing with cancer at the same time, and one of them had very good insurance and one had no insurance and no potential to pay.  They both got the same quality of care as far as I could tell.  Again, that's probably small comfort in an incredibly stressful and worrying time, but it's something. 

I don't trust the Republicans not to throw people like my son under the bus the second it is politically convenient.  Stripping rights away from LGBT is the perfect dog whistle to a certain base of people.  We already have a president who thinks nothing of mocking people with disabilities or banning certain LGBT people from the military.

The idea that people like my son don't need their rights inshrined in law, that conservatives actually care about them, (remember Mike Pence - uber Christian anti-gay guy is only 1 fast food induced heart attack away from the presidency) or that just because it is ok now it always will be is naive.
  It's not that things can't change, but the election of Trump, who waved a rainbow flag on stage at a campaign rally, is not a reason to be hysterical about gay rights.  If you want to be disappointed, sure.  If you want to be concerned that the trend of more and more people being accepting and tolerant of homosexuality is reversing, then sure, be concerned (although I haven't seen anything to indicate this would be the case).  But this is not a moment for teeth gnashing.  Again, we are less than ten years away from Obama having to blatantly lie about his position on gay marriage to be a viable candidate.  We are less than 6 years from teh time he had to be at least coy about it.  And less than two years ago when a republican candidate for president went out of his way to ask for a rainbow flag from an attendant to waive it on stage. 

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #102 on: June 29, 2018, 09:07:48 AM »
You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

Yet there are some. Or are some originalists not originalists?

Is this a "not a true scotsman" issue?

Not at all.  If somebody says they're a libertarian and thinks abortion on demand is the right approach, and another person claiming to be a libertarian says the right to life is the most important liberty so the other person can't claim to be a libertarian while believing in abortion on demand, that's a no true Scotsman issue. If a person says they're libertarian, but they support slavery, don't believe in freedom of the press or religion, and think any mid level government manager should be able to i prison anybody without a trial, that's not a no true Scotsman issue. It's a 'are we going to use a common language or not issue'.   You can have good faith disputes over what is 'really originalist' on certain questions, but if you are trying to claim that you are using an originalist approach to determine that the constitution requires same sex marriage to be recognized if marriage is recognized, you are just trying to avoid any real discussion of merits by trying to use word in a way that comes nowhere close to their commonly accepted meaning.

No, I think it is a "not a true scotsman" issue.

Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."

If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.

But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?


* https://en.wikipedia.org/wiki/No_true_Scotsman

Again, it's not an argument over "true originalist".  it's an argument over whether a common language means anything.  The term originalist is intended to be descriptive of a particular type of judicial philosophy.  There is no universally accepted definition of originalist and exactly how different legal analyses should be handled (just like there is no universally accepted definition of libertarianism and what powers the state should or should not have), but that doesn't mean the terms are meaningless. 

If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.   

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #103 on: June 29, 2018, 09:32:39 AM »
No, I think it is a "not a true scotsman" issue.

Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."

If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.

But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?


* https://en.wikipedia.org/wiki/No_true_Scotsman

Again, it's not an argument over "true originalist".

Yes, it is. You claim that someone isn't a true originalist; I claim that they are (more importantly, they claim that they are).

Quote
If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.   

Or perhaps the "I'm a originalist!" advocate needs "not a true scotsman" to support their socially regressive beliefs because, when those same originalist arguments are used to support the other side, like in Obgerfell, cognizant dissonance occurs and they resort to implying that others are "dumb and/or ignorant people."

Eh, whatever helps you sleep at night. Cheers.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #104 on: June 29, 2018, 09:56:09 AM »
No, I think it is a "not a true scotsman" issue.

Person A: "No Originalist could use originalism to support gay marriage."
Person B: "But these legal scholars who are Originalists do so and they even filed an originalist amicus brief in Obgerfell."
Person A: "Ah yes, but no true Originalist could use originalism to support gay marriage."

If you think these originalists aren't true* originalists, you are just trying to avoid the fact that originalism is an interpretive approach and isn't as unassailable as you seem to think it is.

But, hey, if one needs an exclusive shield to defend and mask their policies, who am I deny them their woobie?


* https://en.wikipedia.org/wiki/No_true_Scotsman

Again, it's not an argument over "true originalist".

Yes, it is. You claim that someone isn't a true originalist; I claim that they are (more importantly, they claim that they are).

Quote
If a person is trying to call him/herself an originalist and claiming that an originalist approach to interpretation leads to the conclusion that the equal protection clause, ratified in 1868, provided a constitutional right to same-sex marriage anywhere traditional marriage is aloud, that person is either very stupid, or more likely, they are being disingenuous and rather than trying to make an argument on the merits, is trying to either shift the argument to a pointless discussion on whether words can have actual meanings, or is trying to sucker dumb and/or ignorant people who think there is something magic about the word "originalism" or "originalist", rather than there being merit to a judicial philosophy that makes the supreme court something other than the most powerful legislators in the land.   

Or perhaps the "I'm a originalist!" advocate needs "not a true scotsman" to support their socially regressive beliefs because, when those same originalist arguments are used to support the other side, like in Obgerfell, cognizant dissonance occurs and they resort to implying that others are "dumb and/or ignorant people."

Eh, whatever helps you sleep at night. Cheers.

I honestly can't tell if you're trolling or you really have no understanding of the argument.

Again, there is nothing magic about the world originalist. If you want to call yourself originalist and people that follow what is generally recognized as an originalist approach something else, that doesn't change anything.  Call it a 'non-legislative' approach instead if you want.  The argument in favor of the non-legislative approach is that it constrains its adherents from simply approaching each issue from a 'what would I prefer the result to be' angle. When people follow that approach, it turns the Supreme Court into a super legislator and makes a huge, possibly the greatest, responsibility of the president and senators to be acting as a representative of their voters in selecting these super legislators that will have a lifetime appointment.  That's perverse and elevates the Supreme Court above the other two branches of government.

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #105 on: June 29, 2018, 01:07:14 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Yeah, pretty sure no one has made that argument anyway.  I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement.  And that interpretation is entirely based off of the original text of the 14th amendment.  If you think otherwise could you explain it please, because I still don't seem to understand your argument here.

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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person.  So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

I took a night to think on this, but I still don't think I'm understanding your logic here.  So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?

14th Amendment Interpretation:  If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.

14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

Jrr85

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Re: Justice Antony Kennedy retiring
« Reply #106 on: June 29, 2018, 02:12:06 PM »
It's not an unassailable argument.  It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy".  You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns. 

Ah, good, glad to read that.

Quote
you can't make an originalist argument of why states must allow same sex marriage. 

Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.

Now we're back to one originalist vs another originalist. Who is correct?

well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.

Yeah, pretty sure no one has made that argument anyway.  I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement.  And that interpretation is entirely based off of the original text of the 14th amendment.  If you think otherwise could you explain it please, because I still don't seem to understand your argument here.

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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person.  So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.

I took a night to think on this, but I still don't think I'm understanding your logic here.  So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?

14th Amendment Interpretation:  If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
 

Just sub out a few words, and you get:

14th Amendment Interpretation:  If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.

You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection.  There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.   


14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized". 

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #107 on: June 29, 2018, 03:40:28 PM »
I took a night to think on this, but I still don't think I'm understanding your logic here.  So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?

14th Amendment Interpretation:  If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
 

Just sub out a few words, and you get:

14th Amendment Interpretation:  If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.

You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection.  There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.   

Except that your "current situation" statement is not a true statement.  By that I don't mean to say it is necessarily a false statement either, it is an indeterminate statement at best because without further context we do not know whether recognizing the marriage of men to women and women to men covers all individuals.  My "current situation" statement is necessarily true if we assume that male and female are the only two available sexes (I know that is also currently being questioned, but I think that's a separate issue that we don't need to debate for the sake of an example).


14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.

TempusFugit

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Re: Justice Antony Kennedy retiring
« Reply #108 on: June 29, 2018, 04:29:09 PM »
The "swing vote" has gone from O'Connor to Kennedy to (presumably) Roberts.  If Republicans hadn't abdicated their Constitutional responsibility the swing vote would be Kagan/Breyer/Garland (one of those three).  It's really amazing the heist McConnell pulled without facing any consequences.

Actually, one could argue that the Senate under McConnell performed their duties as they saw fit, as a co-equal branch of government.  They have the constitutional right / power /authority to reject the president's nominee.  They did.  They just did it by refusing to vote on him.  The constitution does not require that they vote.

Incidentally, it was the Democratic party that started this mess.  Then judiciary chair Joe Biden was the first to propose what has become know as the "Biden Rule" which was to not nominate a supreme court justice close to a presidential election.

"... it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed."

And also that if a nominee were presented that "the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over."

Of course, the Republicans thought that was a horrible idea at the time because it would work against their interests. Just as the Democrats thought it was a horrible injustice when McConnell actually acted upon the suggestion in the Garland case.  Of course it's hypocrisy.   But it's hypocrisy from both sides.  It just happens to have bitten the Democrats this time around. 

doggyfizzle

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Re: Justice Antony Kennedy retiring
« Reply #109 on: June 29, 2018, 04:51:30 PM »
But it's hypocrisy from both sides.  It just happens to have bitten the Democrats this time around.

Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.  The Ds will be in power again at some point and will be able to use the lowered vote threshold of 51 established by McConnell to confirm one or more justices that will hopefully offset Thomas and steer the court along a centrist path.  In 2004, I never imagined that in four years' time we'd see both Chambers of Congress controlled by Democrats and a Democratic President as well.  Obama got two Justices confirmed to the Supreme Court, and I'd bet that the next Democratic President will have the opportunity to nominate a similar number of Justices.

Leisured

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Re: Justice Antony Kennedy retiring
« Reply #110 on: June 30, 2018, 12:40:15 AM »
Why should the appointment of Justices of the US Supreme Court be a political football? In Australia, where I live, the Governor General, acting in place of Queen Elizabeth, appoints a Justice to our Supreme court on the advice of a council. In Australia, the council consists mainly of past and present Cabinet ministers, so that the two major political parties are represented. The UK and Canada have similar systems, but their Councils include senior members of the judiciary. New Zealand justices are appointed from existing justices on seniority and merit.

As is often the case in governmental matters, mental attitudes matter as much as formal arrangements. There is supposed to be separation of powers, so that Legislature, Judiciary and Executive should be separate. People in power should feel that it is improper to appoint a new justice on purely sectarian beliefs. The ancient Romans had the word 'gravitas' to describe people acting impartially and properly.

The US Constitution was written in order to stop narrow vested interests from influencing government decisions. That was, and is, the point.

Norioch

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Re: Justice Antony Kennedy retiring
« Reply #111 on: June 30, 2018, 05:42:24 AM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

GuitarStv

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Re: Justice Antony Kennedy retiring
« Reply #112 on: June 30, 2018, 07:44:59 AM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

You misunderstand what OK means.  You'll be OK as long as you're a straight white wealthy man.  Who gives a shit about those not in that category?  It's not the end of the world, just a reconsolidation of power to those who have already historically had it.
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Re: Justice Antony Kennedy retiring
« Reply #113 on: June 30, 2018, 02:02:28 PM »
A Democratic President expands the Court.

I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.

Well, it's not a slam dunk yet.

McCain probably won't vote and Flake isn't exactly a Trump loyalist. There's also Capito, who is more of a pro-choice Republican than not. And Murkowski and Collins. Collins may be the most vulnerable if she sides with a virulent anti-choice nominee.

They could toe the line for Gorsuch because of Kennedy. Without him, abortion is on the chopping block.

A woman's unalienable right to choose abortion is among the most fundamental rights of the individual liberty of family matters.

During his confirmation hearing before the Senate Judiciary Committee John Roberts, who is now Chief Justice, said that Roe had been reaffirmed and that it was settled law.

Though stare decisis is not an "inexorable command," its application to Roe will continue.

Some statehouses may legislate more restrictions of abortion but Roe will not be overturned.
« Last Edit: June 30, 2018, 04:08:58 PM by John Galt incarnate! »

Noodle

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Re: Justice Antony Kennedy retiring
« Reply #114 on: June 30, 2018, 05:10:30 PM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

Well, not necessarily for decades. None of the justices are spring chickens. Aside from the fact that anyone could drop at anytime (Neil Gorsuch could get in a car accident tomorrow, and Scalia's death seemed to be a surprise to everyone), they will all keep aging, and we could very well end up in a situation a few years down the road where the Democrats are in control and get a few seats to fill. Human longevity is hard to predict. It's frustrating to see the progress of the last few years in jeopardy, but at the time a lot of these changes were happening it reminded me a bit of (being a gardener) of a leggy plant. It feels great to see the plant growing, but it's not all that healthy and, for instance, able to stand up to storms. It felt good to see Obama move a lot of social issues forward, but I wondered if he was moving too fast for them to stick. (I think he may have known that, and hoped that a little more time under one more Democratic administration might do the trick.) The cruelty of the Trump administration, though, is providing the fertilizer (just to totally beat this metaphor into the ground) that may grow a good healthy root structure. How many people do you know who were sort of apathetic about politics before the current administration, and are taking a serious interest now? People are often bad at peace and prosperity and good in a crisis. Trump gave his opponents one.

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Re: Justice Antony Kennedy retiring
« Reply #115 on: June 30, 2018, 05:41:42 PM »
A Democratic President expands the Court.

I hate the fact that it has come to this, but at this point this really is our only option. That or impeach Gorsuch. Without the Supreme Court, progress is impossible.

Well, it's not a slam dunk yet.

McCain probably won't vote and Flake isn't exactly a Trump loyalist. There's also Capito, who is more of a pro-choice Republican than not. And Murkowski and Collins. Collins may be the most vulnerable if she sides with a virulent anti-choice nominee.

They could toe the line for Gorsuch because of Kennedy. Without him, abortion is on the chopping block.

A woman's unalienable right to choose abortion is among the most fundamental rights of the individual liberty of family matters.

During his confirmation hearing before the Senate Judiciary Committee John Roberts, who is now Chief Justice, said that Roe had been reaffirmed and that it was settled law.

Though stare decisis is not an "inexorable command," its application to Roe will continue.

Some statehouses may legislate more restrictions of abortion but Roe will not be overturned.

It's not "may," it's "already have been." People tend to think we either have Roe and safe, accessible reproductive care in every state, or we have nothing. But there's a painful grey area, and we are already in it.

Roe has already been chipped away at. It doesn't need to be overturned completely to be rendered essentially ineffective. I foresee fundamental parts of it being successfully challenged at the SC, even if some small pieces remain. Viability thresholds moved up, onerous restrictions on facilities, religious exemptions, "state interest" in the matter, etc. These will find a toehold at the court.

This is a useful, non-partisan history of abortion and the Supreme Court: http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/

Most people that I talk to about this have a general optimism about precedent winning out. I don't share that optimism, with either with Roe or Obergefell. I wish I could, I just haven't seen a convincing argument for it.
« Last Edit: June 30, 2018, 07:18:02 PM by MonkeyJenga »

doggyfizzle

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Re: Justice Antony Kennedy retiring
« Reply #116 on: June 30, 2018, 06:58:32 PM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

You misunderstand what OK means.  You'll be OK as long as you're a straight white wealthy man.  Who gives a shit about those not in that category?  It's not the end of the world, just a reconsolidation of power to those who have already historically had it.

Gorsuch is an improvement over Scalia.  I believe that Justice Roberts really does believe in the Court as an Institution, and while I certainly do not agree with some of the major decisions the Court has handed down over the past 10 years, his vote to uphold ACA leads me to believe that Roe V Wade is safe at a Federal level.  Progress comes in fits and starts, and demographics in this country nearly ensure that progress will continue and that eventually Republicans will have to distance themselves from their platform of Corporatism/Evangelism/Veiled (or not veiled) racism if they want to win a Presdiential election.  There will be a Democratic presedient again, and whomever that person is will likely get to appoint a Justice or two;  I’m hoping for a replacement for Clarence Thomas.

MonkeyJenga

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Re: Justice Antony Kennedy retiring
« Reply #117 on: June 30, 2018, 07:27:29 PM »
Progress comes in fits and starts, and demographics in this country nearly ensure that progress will continue and that eventually Republicans will have to distance themselves from their platform of Corporatism/Evangelism/Veiled (or not veiled) racism if they want to win a Presdiential election.

Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.

(I know both parties have engaged in gerrymandering. Republicans have been much more extreme.)

The demographics argument also assumes that large blocks of people will have the same voting preferences for decades. Also that elections will be free from outside interference and manipulation.

I believe that Justice Roberts really does believe in the Court as an Institution, and while I certainly do not agree with some of the major decisions the Court has handed down over the past 10 years, his vote to uphold ACA leads me to believe that Roe V Wade is safe at a Federal level.

Just to reiterate a point from my previous comment: Roe v Wade is already not safe. Major components of it have been attacked by targeted lawsuits. The reality of reproductive rights and state-level restrictions is already dire in some places. A gigantic, organized industry of anti-choice activists have built the foundation to make Roe meaningless, if not do away with it entirely.

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #118 on: June 30, 2018, 09:06:32 PM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

Hooo... About those Democrats... You may want to sit down.

https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa
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Norioch

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Re: Justice Antony Kennedy retiring
« Reply #119 on: June 30, 2018, 09:58:18 PM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

Hooo... About those Democrats... You may want to sit down.

https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa

Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.

Norioch

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Re: Justice Antony Kennedy retiring
« Reply #120 on: June 30, 2018, 10:06:20 PM »
Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.

This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.

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Re: Justice Antony Kennedy retiring
« Reply #121 on: July 01, 2018, 02:17:33 AM »

This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.

Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.
« Last Edit: July 01, 2018, 02:24:09 AM by Johnez »

Norioch

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Re: Justice Antony Kennedy retiring
« Reply #122 on: July 01, 2018, 03:23:22 AM »
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #123 on: July 01, 2018, 03:31:04 AM »
Yep, and I think we ended up okay (not great, but okay) with Gorsuch and not another Robert Bork-type sitting on the bench.

No, we're really not okay. We're not anywhere close to being okay. The world as we knew it is ending. It's not hyperbole. It's happening. There's no way back from here. Even if Republicans effort to suppress voting somehow fail (and they won't fail, they've succeeded spectacularly so far), it doesn't matter how many Democrats we elect if Republicans control the Supreme Court. And they now control it for decades. We lost, they won, the end.

Hooo... About those Democrats... You may want to sit down.

https://motherboard.vice.com/amp/en_us/article/vbyp59/house-vote-702-fisa

Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.

You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?

Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979

Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/

Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html

Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html

Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html

So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."

The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative

Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[

So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.

Please direct your anger towards the appropriate problem.
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MonkeyJenga

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Re: Justice Antony Kennedy retiring
« Reply #124 on: July 01, 2018, 08:43:18 AM »
Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.

This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.

Yep. But people still assert that eventually demographics will overwhelm any advantages Republicans hold. Or that "checks and balances" will keep us from excessive abuse of power. If one party controls everything, there are no checks and balances.

Kris

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Re: Justice Antony Kennedy retiring
« Reply #125 on: July 01, 2018, 08:51:12 AM »
Lots of people put hope in "changing demographics," but I have a big concern: Republicans can retain control of the government despite being a shrinking minority. The Senate structure favors them, gerrymandering favors them in the House, and the Electoral College favors them. The gutting of the Voting Rights Act encourages some states to engage in racially-based electoral changes for as long as they can get away with it. With a hard right-wing SC, voting rights will be attacked further and partisan/racial gerrymandering will be extreme. There are many ways for Republicans to hold onto control even if fewer and fewer people want to vote for them.

This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.

Yep. But people still assert that eventually demographics will overwhelm any advantages Republicans hold. Or that "checks and balances" will keep us from excessive abuse of power. If one party controls everything, there are no checks and balances.

Exactly. The complacency from some on the left is infuriating. The Republicans know demographics are against them, which is why they’ve focused so hard on gerrymandering, voter suppression, removing barriers to campaign spending, and other techniques to counteract that. So far, it seems to be work8ng out pretty well for them.
Please note: Libertarian4321 did not vote for either Hillary or Trump. He voted for Gary Johnson, who was the Libertarian candidate.

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #126 on: July 01, 2018, 09:26:29 AM »
Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?

Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979

Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/

Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html

Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html

Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html

So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."

I don't find it odd because nobody has told me that democrats are perfect angels who only have the best ideas.  Option A can be imperfect and also better than option b.  We can vote for progressives in the primaries to continue improving the democratic party from within and still vote democratic in the general elections because even with their flaws they're better than republicans.  So no, it's not simply "meet the new boss, same as the old boss.", it's more like "meet the new boss, they have some of the same problems as the old boss but at least they're not an asshole."


This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.

The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative

Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[

So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.

Please direct your anger towards the appropriate problem.

1. Democracy isn't functioning just fine.  If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that.  But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems.  A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything.  We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic.  Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.

Johnez

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Re: Justice Antony Kennedy retiring
« Reply #127 on: July 01, 2018, 11:29:40 AM »

1. Democracy isn't functioning just fine.  If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that.  But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems.  A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything.  We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic.  Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.

I pretty much agree with your post. Democrats need to remember this in 2024 when they eventually get their turn at the presidency, hopefully after they've taken over the House and Senate.


craimund

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Re: Justice Antony Kennedy retiring
« Reply #128 on: July 01, 2018, 11:56:00 AM »
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

Not sure how you came up with the 500 times number.  Are you referring to the Senate?  Wyoming gets two Senators with a population of about 580,000 and California gets two with a population of just under 40 million (California has 69 times the population).  Vermont (which is very liberal) also gets two Senators adn barely has 600,000 people.  Each Congressional district is approximately the same size population wise.  In the presidential election, each state is assigned a number of electors equal to the number of Congressman and Senators.  Electoral votes for President therefore also largely track the population (i.e., California gets a lot more electoral votes than Arizona, Wyoming or Vermont).  The Senate was set up the way it was originally as a check on Democracy (i.e., the "mob").  In fact, originally Senators were not directly elected but appointed by the state legislators.  The Constitution would need to be amended to change this.  In any event, the left (i.e., Progressives) have been using the unelected Judiciary to subvert Democracy by declaring so-called rights that have no textual basis in the Constitution -including so-called gay "marriage" and abortion.  From my perspective, five black robed unelected jurists forced every state in the Union to recognize same sex marriage.  This is the definition of anti-democratic. 

craimund

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Re: Justice Antony Kennedy retiring
« Reply #129 on: July 01, 2018, 12:00:21 PM »

1. Democracy isn't functioning just fine.  If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that.  But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems.  A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything.  We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic.  Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.

I pretty much agree with your post. Democrats need to remember this in 2024 when they eventually get their turn at the presidency, hopefully after they've taken over the House and Senate.

The 2024 date appears to be an acknowledgement that Trump is a shoe-in for 2020.  Hope you are correct.  Democrats in Congress did change the system in 2009-2010 and got promptly removed from power.  Significantly curtailing the levels of immigration - both legal and illegal - will blunt the demographic changes the left is counting on to fundamentally transform the country.  This, in my view, would make us little better than Mexico or Venezuela. 

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #130 on: July 01, 2018, 12:13:32 PM »
Is this supposed to convince me to vote third party? Because a fraction of Democrats (which is smaller than 50%, and much smaller than the corresponding fraction of Republicans) voted for this one bad bill? No, I'll vote for progressives in the Democratic primaries to try to steer the party in that direction, but in the general election I'm voting straight party Democrat in every single election from president to neighborhood dog catcher until the Republican party is in ashes. It's apparent now that the only possible way even the tiniest sliver of progress is ever going to be made in this country is if we get absolutely overwhelming majorities for the Demcratic party. It's going to need to be like 80% of the national vote or it's worthless. I'm not going to throw my vote away just because Democrats fail to nominate a perfect progressive unicorn. That's what got us Trump and that's what lost us the Supreme Court for decades.
You don't find it odd that some how Trump's Agenda keeps getting passed? That every time just enough Democrats cross party lines to get it accomplished?

Banking deregulation
https://www.politico.com/story/2018/03/06/elizabeth-warren-bank-deregulation-bank-bill-387979

Increase in Military Budget
https://www.forbes.com/sites/eriksherman/2018/06/20/house-and-senate-democrats-vote-68-percent-and-85-percent-for-massive-military-spending/

Trump's pick for CIA director.
https://www.cnn.com/2018/05/17/politics/gina-haspel-confirmation-vote/index.html

Pompeo becomes secretary of State
https://www.cnn.com/2018/04/26/politics/mike-pompeo-senate-confirmation-vote-richard-grenell/index.html

Also Pelosi says "Socialism isn't a trend"
https://www.axios.com/nancy-pelosi-alexandria-ocasio-cortez-06581e0f-024c-4600-a69f-c0dbee770e55.html

So you can attempt to vote progressive, but for now, it's simply, "meet the new boss, same as the old boss."

I don't find it odd because nobody has told me that democrats are perfect angels who only have the best ideas.  Option A can be imperfect and also better than option b.  We can vote for progressives in the primaries to continue improving the democratic party from within and still vote democratic in the general elections because even with their flaws they're better than republicans.  So no, it's not simply "meet the new boss, same as the old boss.", it's more like "meet the new boss, they have some of the same problems as the old boss but at least they're not an asshole."


This is already happening and it's going to get much, much worse. Clinton got 3 million more votes than Trump and lost the election. Democrats got 11 million more votes than Republican in the vote for the Senate, and lost the Senate. Don't tell me everything's fine, functional democracy when it's plainly not.
Which is a function of the way the system was set up 2 and a half centuries ago. Clinton got 3 million more votes and STILL lost because of her strategic failure in states that Trump's team flipped. Ohio, Wisconsin, Michigan, Pennsylvania, etc. Plus her votes tended to concentrate in states like California. Those numbers mean very little. Democracy functions just fine, hiccups and all. Democrats just need get to get back out and work it.

The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

Constitution: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:

Constitution: The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative

Apportionment Act of 1911 (Pub.L. 62–5, 37 Stat. 13) was an apportionment bill passed by the United States Congress on August 8, 1911. The law set the number of members of the United States House of Representatives at 435, effective with the 63rd Congress on March 4, 1913.[

So seems to me our system was arbitrarily restricted to a size appropriate to 1911 instead of growing as it should.

Please direct your anger towards the appropriate problem.

1. Democracy isn't functioning just fine.  If you want to make the argument that America was set up as a representative democracy and that system is working just fine then do that.  But there are very clearly a lot of problems with the current system that make it undemocratic (gerrymandering, the filibuster, the senate in general, the electoral college, the limit on house members) and there's nothing stopping us from being angry at all of those problems.  A lot of people would like to see our system be more democratic in nature and telling them that the system works as intended doesn't help anything.  We know it works as intended, we think it should work differently.
2. Clinton can have made a strategic mistake and the system can still be stupid and undemocratic.  Democrats should work within the system that exists to gain power and then change the system once they have the power to do so.

Most of Trump's worst excesses have roots in previous administration's. That surveillance bill in the first part was formerly called "The Patriot Act." So, How about we agree that we need to hold our government accountable no matter who is in charge?

I'm pointing out that our system is not functioning as designed. The United States has 325 million people. Divide by 30,000 and we should have 10,833 representatives in the house. Which means there would be just as many congressional districts making gerrymandering a lot more difficult. The system would be far more granular and allow for more access to politicians.

As for making the system more democratic, curtail federal power, convene a convention to change your state constitution. If your experiment works, the country will follow. If your experiment fails, then we have data to argue over.
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craimund

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Re: Justice Antony Kennedy retiring
« Reply #131 on: July 01, 2018, 12:33:18 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #132 on: July 01, 2018, 12:51:45 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
 
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craimund

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Re: Justice Antony Kennedy retiring
« Reply #133 on: July 01, 2018, 12:56:42 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator".  Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.

He summarily executed American citizens with drone strikes and the media barely objected.  Imagine if Bush had done this?

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #134 on: July 01, 2018, 01:25:31 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator".  Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.

He summarily executed American citizens with drone strikes and the media barely objected.  Imagine if Bush had done this?

I agree with you again. Obama's administration got away with things because he spoke eloquently and gave everyone that dopamine kick because "We're so progressive."

There seems to be two different realities in people's minds right now.

1. Trump is a dictator that somehow buffaloed Dems into going along with what he wants and is generally unstoppable. This is not a fun reality to be in.

Or

2. Trump is a run of the mill republican. An asshole at times. Ineloquent and has bad PR because media is generally jamming the fear centers of people's brains. I assume you and I live in this reality.
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craimund

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Re: Justice Antony Kennedy retiring
« Reply #135 on: July 01, 2018, 01:31:15 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator".  Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.

He summarily executed American citizens with drone strikes and the media barely objected.  Imagine if Bush had done this?

I agree with you again. Obama's administration got away with things because he spoke eloquently and gave everyone that dopamine kick because "We're so progressive."

There seems to be two different realities in people's minds right now.

1. Trump is a dictator that somehow buffaloed Dems into going along with what he wants and is generally unstoppable. This is not a fun reality to be in.

Or

2. Trump is a run of the mill republican. An asshole at times. Ineloquent and has bad PR because media is generally jamming the fear centers of people's brains. I assume you and I live in this reality.

Number 2 is closer to the truth, at least as I see it.  I don't think Trump is much of a Republican though.  I think he's an opportunist who co-opted some Republican issues (taxes, judicial appointments) and adopted some populist issues (immigration and trade) that are very un-Republican and used to be Democrat issues (before Bill Clinton).  It's a combination that is working pretty well for him.  I suspect he will be a pretty formidable candidate in 2020 if the economy stays strong. 

TempusFugit

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Re: Justice Antony Kennedy retiring
« Reply #136 on: July 01, 2018, 01:42:24 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator".  Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.

He summarily executed American citizens with drone strikes and the media barely objected.  Imagine if Bush had done this?

The last president also entered the united states into treaties without following the constitutional rules, thus creating the unstable situation vis a vis the paris accords and the iran agreement.  He also ruled by decree in the form of executive orders rather than through the proper constitutional process. He also violated his own oath the enforce the laws of the united states by decreeing that the executive branch would not enforce immigration laws.   He also entered us into a war (Libya) with no congressional authority. Say what you will about Bush, he had congressional authorization for Iraq.  Obama had his own cult of personality, constituted in great numbers by an obsequious press, which as mentioned above removed an important check on presidential and government power. 

Personally, id rather have a loudmouthed spoiled rich kid with thin skin and poor people skills in charge rather than a smooth talking self righteous but poised man who is going to abuse his powers because he knows whats best for us whether we like it or not.  That is far more dangerous to our republic.  Remember the last president conspiring with the Russians to just get him past the elction so he could show more "flexibility" in our policies toward Russia?  Remember the last Democratic nominee being heavily involved in the sale of a strategic national asset (uranium mines) to the Russians?  You dont want a competent and appealing scoundrell in office.  If you have to have a scoundrell, let them be obvious and obnoxious about it. 

Hopefully this experience with the irritating and embarrassing president currently in power will teach us a lesson about giving the executive too much power and importance.  The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance. 

bacchi

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Re: Justice Antony Kennedy retiring
« Reply #137 on: July 01, 2018, 01:49:40 PM »
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.

The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).

This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.

The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).

A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.


craimund

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Re: Justice Antony Kennedy retiring
« Reply #138 on: July 01, 2018, 01:54:26 PM »
Not sure what Trump's worst excesses are?  Separation of families at the border seems to be the outrage du jour.  This also happened under previous administrations but apparently has been stepped up due to the new policy to actually enforce immigration law.

Trump appears the be the victim of Obama's abuse of the Patriot Act - use of FISA warrant to spy on his campaign.  Not aware of any violations or alleged misuse of the Patriot Act by Trump.

Most of the outrage appears to be over his tweets.

I agree with you. The point was that everyone is acting like it is something unique to Trump. Our executive branch has had it's power expanded with no checks on it because "the right guy was in charge." Now "The Wrong Guy" is in charge and everyone is horrified at what is happening.

One of these guys made the point to vote Democrat because they are the lesser of two evils with potential to be good guys down the road.

Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications. Trump the aspiring dictator. It is generally a bad idea to give aspiring dictators the keys to the surveillance state. But here we are.

I was aiming at breaking the cognitive dissonance by pointing out that the only political group with the resources to stop Trump seems complicit in his dealings.
\
Agree that Dems view Trump as an "aspiring dictator".  Don't think it's fair to call him one.
I think Obama was much more dangerous to our civil liberties in part because of his leftist philosophy which tends to aggrandize power to the central government but also because he received such favorable and uncritical press coverage in the mainstream media.

He summarily executed American citizens with drone strikes and the media barely objected.  Imagine if Bush had done this?

The last president also entered the united states into treaties without following the constitutional rules, thus creating the unstable situation vis a vis the paris accords and the iran agreement.  He also ruled by decree in the form of executive orders rather than through the proper constitutional process. He also violated his own oath the enforce the laws of the united states by decreeing that the executive branch would not enforce immigration laws.   He also entered us into a war (Libya) with no congressional authority. Say what you will about Bush, he had congressional authorization for Iraq.  Obama had his own cult of personality, constituted in great numbers by an obsequious press, which as mentioned above removed an important check on presidential and government power. 

Personally, id rather have a loudmouthed spoiled rich kid with thin skin and poor people skills in charge rather than a smooth talking self righteous but poised man who is going to abuse his powers because he knows whats best for us whether we like it or not.  That is far more dangerous to our republic.  Remember the last president conspiring with the Russians to just get him past the elction so he could show more "flexibility" in our policies toward Russia?  Remember the last Democratic nominee being heavily involved in the sale of a strategic national asset (uranium mines) to the Russians?  You dont want a competent and appealing scoundrell in office.  If you have to have a scoundrell, let them be obvious and obnoxious about it. 

Hopefully this experience with the irritating and embarrassing president currently in power will teach us a lesson about giving the executive too much power and importance.  The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance.

"The legislative branch has been far far too apathetic and cowardly in defending their proper role in governance. " - couldn't agree more with this.  Immigration policy is the latest example. 

I was more irritated and embarrassed by the last president but that was probably because I tended to agree less with what he was advocating.  I can certainly see someone being irritated and embarrassed by Trump.  A lot of what he says is over the top bluster (generally anything he tweets) and he is wildly inaccurate in his recounting of mostly trivial facts.   For example, he said no Republican has won Wisconsin since Eisenhower the other day at a rally when I know Reagan won Wisconsin in 1984 and pretty sure HW Bush won in 88 (edit - actually Dukakis won WI in 1988).  He even explained that Wisconsin was the only state Reagan lost in 84 (pretty sure that was MN).  This drives me crazy.  Don't think these inaccuracies are a big deal and media make way to much of them.  The same media largely gave Obama a pass for "like your doctor, keep your doctor - like your plan keep your plan" which was a lie told to advance legislation. 
« Last Edit: July 01, 2018, 01:56:39 PM by craimund »

TempusFugit

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Re: Justice Antony Kennedy retiring
« Reply #139 on: July 01, 2018, 02:25:48 PM »

I was more irritated and embarrassed by the last president but that was probably because I tended to agree less with what he was advocating.  I can certainly see someone being irritated and embarrassed by Trump.  A lot of what he says is over the top bluster (generally anything he tweets) and he is wildly inaccurate in his recounting of mostly trivial facts.   For example, he said no Republican has won Wisconsin since Eisenhower the other day at a rally when I know Reagan won Wisconsin in 1984 and pretty sure HW Bush won in 88 (edit - actually Dukakis won WI in 1988).  He even explained that Wisconsin was the only state Reagan lost in 84 (pretty sure that was MN).  This drives me crazy.  Don't think these inaccuracies are a big deal and media make way to much of them.  The same media largely gave Obama a pass for "like your doctor, keep your doctor - like your plan keep your plan" which was a lie told to advance legislation.

I agree that Trump's communications both formal and tweet based are mostly not meant to be taken too seriously.  I am uncomfortable with that in my president, but I don't think he's going to change. 

I don't like our current president as a representative for our nation.  He is uncouth and unprofessional.  He creates most of his own problems with those traits and has sacrificed successes in some of his own policies due to his personality and motor-mouth. I also worry about his negotiations with other world leaders, since I don't think he is a very bright man. He certainly hasn't bothered to educate himself on the issues.   I think he's a bit of a savant in terms of his psychology, having read the electorate far more accurately than the 'professionals'.  He's certainly managed to tie his opponents in knots, perhaps largely because they are still in disbelief that this man could have bested them.  Because of hubris on their parts, ironically. 

That being said, I generally am in agreement with most of the actual policies that have been enacted. 

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #140 on: July 01, 2018, 03:34:31 PM »
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.

The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).

This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.

The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).

A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.

https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now

We are likely talking about two different bills.
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bacchi

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Re: Justice Antony Kennedy retiring
« Reply #141 on: July 01, 2018, 03:39:07 PM »
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.

The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).

This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.

The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).

A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.

https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now

We are likely talking about two different bills.

Ah, we are. My bad. Well, they're all bills that should've gone nowhere.

gentmach

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Re: Justice Antony Kennedy retiring
« Reply #142 on: July 01, 2018, 05:57:33 PM »
Problem is current Democrat leadership gave Trump the Patriot act which collects everyone's communications.

The Patriot Act was originally signed in law with Bush (with a 98-1 vote in the Senate), extended under Obama, and repackaged without NSA surveillance under Obama again. The latest incarnation passed the House overwhelmingly and passed the Senate with a veto-proof vote (not that it mattered).

This indicates, if you're following along, that it was a bipartisan bill. H.R. 2048 had 150 co-sponsers.

The USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) doesn't allow collecting everyone's communications without a warrant (but if you believe that...).

A leftist liberal commie organization, the ACLU, has sued for the release of FISA records related to the Patriot Act and its offspring.

https://www.aclu.org/blog/national-security/privacy-and-surveillance/congress-just-passed-terrible-surveillance-law-now

We are likely talking about two different bills.

Ah, we are. My bad. Well, they're all bills that should've gone nowhere.

I screwed up. It's the FISA bill. I'm not sure the difference but they are both horrifying in this age of madness.
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Leisured

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Re: Justice Antony Kennedy retiring
« Reply #143 on: July 02, 2018, 12:12:48 AM »

This thread started as a discussion of SCOTA, and has drifted into a discussion of other parts of the US constitution.

The US Constitution, article 2, specifies that the President, under advice, proposes an appointment to SCOTA, and Senate has to agree. This is a clear breach of the doctrine of ‘separation of powers’, as I pointed out in a previous post. I am surprised that the US Founding Fathers thought this was a good idea.

The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.

New Zealand appoints justices to their Supreme Court by seniority and ability in the legal fraternity. Australia, Canada and the UK have councils to recommend Justices, and these councils are made of past and present Ministers of government, from both sides of politics, and also people outside politics.

The New Zealand arrangement may the best. I respectfully suggest that Americans lobby their congressmen to propose an amendment to the US Constitution to limit or abolish the power of the President and Senate to appoint Justices to the SCOTA. While you are at it, the proposed amendment would specify that a Justice must have legal knowledge and experience (not the case at the moment) and Justices do not serve for life.


TexasRunner

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Re: Justice Antony Kennedy retiring
« Reply #144 on: July 02, 2018, 12:46:59 AM »
The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.

One quick correction-  There is another option for amending the constitution, though I do not believe it has been successfully used.  It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.

It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.

There are several states calling for a states convention on a variety of issues.  I think it is about time that happened...  :/
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Norioch

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Re: Justice Antony Kennedy retiring
« Reply #145 on: July 02, 2018, 03:59:59 AM »
The way it was set up two and a half centuries ago is stupid and has always been stupid, and it's a historical artifact of the political reality of the time and the concessions needed to get the country formed, not a noble and admirable feature of a democracy. There's no justifiable reason why the vote of someone in Arizona should be worth 500 times as much as the vote of someone in California.

Not sure how you came up with the 500 times number.

https://wallethub.com/edu/how-much-is-your-vote-worth/7932/

Zamboni

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Re: Justice Antony Kennedy retiring
« Reply #146 on: July 02, 2018, 04:57:50 AM »
My main concern is that corruption and nepotism in our government is getting out of control:

http://www.businessinsider.com/anthony-kennedy-son-loaned-president-trump-over-a-billion-dollars-2018-6

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Re: Justice Antony Kennedy retiring
« Reply #147 on: July 02, 2018, 07:59:54 AM »
I took a night to think on this, but I still don't think I'm understanding your logic here.  So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?

14th Amendment Interpretation:  If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
 

Just sub out a few words, and you get:

14th Amendment Interpretation:  If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.

You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection.  There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.   

Except that your "current situation" statement is not a true statement.  By that I don't mean to say it is necessarily a false statement either, it is an indeterminate statement at best because without further context we do not know whether recognizing the marriage of men to women and women to men covers all individuals.  My "current situation" statement is necessarily true if we assume that male and female are the only two available sexes (I know that is also currently being questioned, but I think that's a separate issue that we don't need to debate for the sake of an example).


14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
  But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.
  Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives.  But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that. 

ETA:  Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right.  You only have to worry about judges stopping leftist legislation.  But there's no reason that has to be the case if the left keeps trying to make judges superlegislators.  If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution.  I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy.  Even if that would be a few decades down the line, it's worth not going down that path. 
« Last Edit: July 02, 2018, 08:05:28 AM by Jrr85 »

shenlong55

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Re: Justice Antony Kennedy retiring
« Reply #148 on: July 02, 2018, 09:29:14 AM »
14th Amendment Interpretation:  If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation:  The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.

14th Amendment Interpretation:  If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation:  The government allows all individuals who are men to marry women. 

Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals.  If you can just pick your class, then you can always satisfy equal protection.  If you can't make any distinction, then you can just about never satisfy equal protection. 

Because I am not defining a class of citizen I'm defining a situation in which any citizen can find themselves during parts of their life.

So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".

There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion."  And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not. 

I don't think that this argument needs to be made.  I think that the argument that "people in 1868 intended or wanted the equal protection clause to grant a right to equal treatment under the law" is sufficient to justify the obergefell ruling.  The people who passed the equal protection clause in 1868 didn't have to have gay marriage in particular in mind if their goal was equal treatment under the law because that principle is a general principle that applies to the specific case of gay marriage.  For example, the 14th amendment doesn't specifically prohibit the government from creating a law requiring a particular group of people to have special IDs identifying themselves as a part of that group, but I still think the general principal of equal treatment under the law would prohibit that kind of law because it would only apply to that group and not all citizens.
But you just argued against applying that general principle with respect to section 8.  So somebody has to decide on when it applies and when it doesn't.  You can have judges try to remain faithful to what was intended, or you can have them just act as super legislators.

No, I didn't.  I argued that that principle was already being applied to section 8 because all citizens could be eligible for it during parts of their life.  Although I would honestly prefer to replace section 8 with a universal basic income for many reasons which include your point here.  Because even if it is equal treatment it doesn't feel equal.

Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?

I'm pretty sure that's going to happen whether I want it to or not.  Sure, you could try to say that his policy preferences won't be implemented because they're his policy preferences but instead because they're the "right decisions from an originalist/textualist interpretation", but he'll still get his policy preferences.  I personally think that's because "originalist/textualist" is just another way of saying conservative, so it's not really any consolation to me.

Well, this is just ensuring that we can't have separation of powers with legislative powers vested in elected representatives.  But if people on the left are comfortable saying, I don't care about norms, I don't like the results that come from trying to follow the constitution, so I just want judges that will do what I want, they can't simultaneously whine about republicans going to the mat with respect to stopping that. 

ETA:  Also, I still don't think you are fully considering how bad an idea it is to have judges unmoored from the constitution because you have not seen real activism from teh right.  You only have to worry about judges stopping leftist legislation.  But there's no reason that has to be the case if the left keeps trying to make judges superlegislators.  If the left had to worry about judges not just avoiding passing new legislation that mandates same sex marriage be recognized, but actually mandating that states not recognize same sex marriage, then I think they'd be a little more appreciative of judges trying to follow the constitution.  I don't think there's a chance in hell of anything like that coming about, and I don't think any of the "conservative" judges currently on the bench would even be open to legislating on other policy areas where they would like different public policy, but eventually, if the norm is eroded enough, there could be conservative judges that want to legislate on stuff like say tax policy.  Even if that would be a few decades down the line, it's worth not going down that path.

You're still not getting it.  I'm not arguing that justices shouldn't adhere to the constitution.  I'm arguing that the justices that you think are not adhering to the constitution are in fact already doing so.  Also, that the justices that you think are adhering to the constitution are actually interpreting it just as much as those other justices that you dislike, just in a different manner.

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Re: Justice Antony Kennedy retiring
« Reply #149 on: July 02, 2018, 10:17:42 AM »
The US Constitution can only be amended if Congress puts up a proposed amendment, and a majority of Congress and state legislatures agree. American voters are not involved. In Australia, Federal government must put up a proposed amendment, but then can only be passed by a majority of Australian voters, and a majority of all Australian states. Australian voters have always been wary of changing our constitution, so there might not be much difference between our system and the US system.

One quick correction-  There is another option for amending the constitution, though I do not believe it has been successfully used.  It is a state's convention (which can be very limited in scope, only for the approval of one amendment if desired) and that an be forced by a referendum vote at the state level initiated by petition.

It is basically the only way anyone is going to get term limits for congress amended into the constitution, since congress won't fire themselves.

There are several states calling for a states convention on a variety of issues.  I think it is about time that happened...  :/

You are correct.

The Constitution has never been amended via an Article V Convention of States.