I’m about as pro Trump/gop as it gets and pro-life. I go to Catholic Church.
If you guys ban IVF I will vote democrat the rest of my life. I can not think of a stupider and more self destructive policy.
Pro life needs to accept that it’s not democratically popular. If you convince a politician to endorse an unpopular policy one of two things will happen. It will get overturned in plebiscite and/or that politician will eventually lose.
You have to win hearts and minds. Politicians can’t do that for you. They can make things easier day by giving you school vouchers so you can send your kids to schools that teach abortion is wrong. Or a bigger child tax credit. You know popular stuff within their control. But they can’t pass and make stick a law with 60%+ of the population against it.
Here, perhaps, is a good example of how the MSM narrative that "pro-lifers want to ban IVF" is causing you to misinterpret what I actually suggest in the article.
First, pro-lifers do not generally have a problem with IVF in general. We have a problem only with forms of IVF that deliberately kill embryonic human children (or dump them into permanent deep-freeze). I would like to see that specific practice banned. It is not essential to IVF, and IVF would be just fine without it. I have no interest in banning IVF, and I think very few pro-lifers do.
(The Catholic Church, for its part, views the use of IVF as a serious sin, but it's the sin of decoupling procreation from its sexual meaning, not the much more serious sin of murder.)
But I only mentioned IVF one time in this article, and I wasn't calling for a ban. All I said was that pro-lifers may need to fight the incoming administration attempts to *expand* embryo-destructive forms of IVF. For example, Mr. Trump has expressed a desire to require insurance companies to cover IVF, specifically (not just fertility treatments broadly), without regard for the destruction of embryos. That would be very bad! From both a traditional Republican "we shouldn't overregulate the insurance market because it will drive up prices for everyone" perspective, and from a pro-life "we shouldn't encourage forms of IVF that destroy embryos," we should fight that proposed insurance mandate.
But fighting a proposed insurance mandate for embryo-destructive IVF is a loooooong way from trying to ban all IVF.
I am strongly in favor of the embryonic destruction form of IVF.
In addition to the fact that it is a more effective form of IVF, it opens the possibility for polygenic scoring. That will be the single greatest boon to human civilization in history. The dramatic reduction of nearly all forms of biological infirmity and perhaps even the enhancement of human intelligence. My father and I both have had to deal with type 1 diabetes from birth. Polygenic scoring with four embryos reduces that risk 75%, and it’s only going to get better. I’m not giving that up because of your superstitious nonsense.
Yeah, a woman murdering the baby in her womb is macabre. It says something terrible about that woman. A person ensuring the health and capabilities of their children is doing a glorious and godly thing.
From the secular perspective, this is murder. There's nothing superstitious about that. Embryos are humans and you are not "reducing the risk" of diabetes; you're simply killing people with diabetes.
It is *also* eugenics, which has its own dark history. After all, if we're going to kill people who have diabetes as embryos to "reduce biological infirmity," why don't we kill people with diabetes as newborns, too? Why don't we kill *all* the lebensunwertes leben?
It does, as you say, say something terrible about you that you support this. I am, frankly, much more sympathetic to the woman grappling with pressure from her family and boyfriend to abort than with this cold-eyed extermination of defectives.
You nevertheless might *possibly* be right that this is popular, although I doubt that such an explicitly eugenic argument enjoys broad popular support. It nevertheless must be opposed by all people of good conscience, and I don't think it's *so* popular that it's beyond the reach of politics.
You are getting too autistic about this. A woman raw dogging some dude and killing a growing baby inside her is a very different thing than people trying to bring life into the world on purpose making embryos in a lab.
If you can’t understand that you’re lost. There is a reason 88% of Americans including a majority of people against abortion disagree with you.
2) Eugenics is awesome! You’re typing this on a device made possible by eugenics making people high iq enough to invent it.
Killing people is bad, and up until recently killing people was the only way to practice eugenics (there was also letting weak children starve to death, which sucked too). IVF has finally solved this problem, a blessing of unbelievable proportions of there ever was one.
“Why don’t we?”
Because it’s messy and ugly and where do you draw the line. Turns out you don’t need to draw the line at all”embryo” to draw the line before auschwitz. Normal non spergs can get off the slippery slope before that.
It’s a fucked up world where you have more sympathy for raw dogging sluts using abortion as birth control, but hate people trying to bring happy and healthy lives into the world and make it a better place.
Most peoples view of abortion isn’t based on some spergy “logic” about when the soul enters the cells or some nonsense. It’s about the underlying intentions and effects of the action itself has on the person and society.
I agree that pig embryos aren't human; they're pigs. Horse embryos aren't human; they're horses.
Human embryos, however, are clearly humans! Members of our species, organisms in their own right! I think the inquiry should end there. Human beings have rights. Do not kill them. Some people try to argue that some human beings don't have value yet because they don't have personhood or ensoulment or whatever. I don't think those arguments belong in the public sphere.
You mentioned, however, that you are Catholic, and it surprises me that you are unaware that the faith you profess insists that all human beings are persons with a right to life from the time of fertilization forward, condemns IVF as a mortal sin, condemns eugenics as an offense against human dignity, and condemns embryo-destructive IVF as murder. None of these seem compatible with what you are saying.
> Killing people is bad
Well I'm glad we agree on this, at least. I suppose you have some reason for believing that embryos aren't people? Some reason that isn't fundamentally a theological argument?
> A woman raw dogging some dude and killing a growing baby inside her is a very different thing than people trying to bring life into the world on purpose making embryos in a lab.
True! A woman raw-dogging a dude is how babies are ordinarily made, and it's rarely done while premeditating murder (though all too many of them still, horribly, follow through on it).
Creating a bunch of babies in a lab with the intention *beforehand* to kill the "unfit" is an order of magnitude more cruel, not to mention creepy.
The way you talk about women in your post ("slut"? really?) makes me wonder whether you identify as pro-life because you believe in human rights or because you hold women in pitiless contempt. The pro-choicers are always telling me that people like this exist, but I rarely meet any.
> Normal non spergs can get off the slippery slope before Auschwitz.
I think our last sleigh ride down this trail provides good evidence that we very much cannot. There is no limiting principle here.
> You’re typing this on a device made possible by eugenics making people high iq enough to invent it.
If a full-blown, highly effective eugenics program had been up and running near the dawn of the computing era, a number of foundational figures in the field would have died. Alan Turing comes to mind. (At the dawn of the computing era, homosexuality was considered highly dysgenic.)
> There is a reason 88% of Americans including a majority of people against abortion disagree with you.
I don't think this is true, but I haven't been able to find current polling on "is eugenics good?"
I think if you asked "Is eugenics good?" most people would say no. This, however, is mostly because we've been taught that eugenics is bad.
However, if you asked if parents should be allowed to destroy embryos with genetic disorders, I think fewer people would say no. This is because while we've been taught that eugenics is bad, we haven't really been taught why.
"Eugenics is awesome! You’re typing this on a device made possible by eugenics making people high iq enough to invent it."
With all due respect, what alternate timeline are you typing from? Because the guys who invented the computer were not produced via a breeding program.
"Most peoples view of abortion isn’t based on some spergy “logic” about when the soul enters the cells or some nonsense."
This is actually true--most people's position on abortion isn't based on any kind of logic.
"It’s about the underlying intentions and effects of the action itself has on the person and society."
This part is wrong. Most people base their position on abortion on either how much they want no-consequences sex or how much the unborn child looks like a born child.
“Eugenics” is just the genetically superior outbreeding the genetically inferior. It doesn’t have to be a government breeding program. For 99.9999% of human history it was just called “evolution”. The smarter and stronger would have 40% of their kids die instead of 60% for the less worthy or something along those lines, and this would improve genetic stock over time.
Gregory Clark detailed this pretty well in his work showing the IQ increase in Europe starting around 1000AD due to a higher survival rate of successful yeomen farmers and merchants leading to demographic replacement of the lower orders via differential child mortality. Dead children literally made us smart enough to have an Industrial Revolution.
After the Industrial Revolution we had so much surplus that the children of the weak stopped dying, which potentially could have caused dysgenics.
Hitler took this idea (in a very confused a contradictory way) too far and got lots of strong smart white people killed for no good reason. Though it’s hard to blame eugenics because Stalin believed the exact opposite and Churchill loved eugenics too.
So we all decided rightly that “eugenics” shouldn’t be used to justify death camps and wars of aggression.
But lo and behold we now have the technology to do everything eugenics promised us AND MORE! X1000. And all without any killing or war or force or any other nonsense. It’s literally just science + human freedom!
Or we can take door number 2, where mutation load gets worse every generation and the low iq third world outbreeds us and floods our borders and makes the entire world into the third world and civilization collapses. But hey, at least we followed the orders or some child molesting faggot priests.
The claim that pro-lifers want to "ban" IVF has largely arisen from a situation in Alabama. The state supreme court had ruled that IVF couples could sue for the wrongful death of their embryonic children who had been wrongfully and negligently destroyed. In the case in question, the IVF clinic had left unlocked the door to its cryopreservation room, allowing a psychiatric patient to wander in from the adjoining hospital and smash some vials containing their frozen embryos on the floor. The clinic responded by temporarily shutting down, apparently to pressure the legislature to give it new protection from all legal liability -- which the witless legislature promptly did, giving IVF clinics blanket immunity from all civil or criminal liability no matter how negligently, incompetently, or maliciously it destroys embryos. Pro-lifers (and anyone actually realizing the implications of this exemption of the clinics from all decent standards for medical malpractice claims) objected. As for what some might call the "normal and natural" embryo losses that routinely occur in IVF clinics, they are already covered by the standard IVF consent forms -- 17 pages of contract in which the parents agree in advance not to hold the clinic liable for such destruction. That was never what the Alabama dispute was about. Suits against IVF clinics for outright negligence that destroyed embryos (failing to maintain or monitor the freezers, etc.) have proceeded, and won big civil payouts, in staunchly pro-abortion states like California -- so now the supposedly pro-life state of Alabama is the one place in the country where grieving parents of these embryos have no recourse. Trump (as usual) misperceived the issue and decided he might like to protect the clinics nationally, because "we need more babies." What the negligent clinics are doing, though, doesn't have a lot to do with producing live babies.
I don’t know… I think you could have held back on topic #6 a week and posted it exactly as-is and we would have been plenty happy with that walk-through! Thanks as always for a more-detailed-than-promised summary!
I have a number of thoughts… but my bigger ones are on the Supreme Court and thus I will separate my comments so any discussion on that topic is not bogged down by the rest. Or at least that was the original reason... I then realized my Supreme Court thoughts were so long they couldn't even fit in their own comment, and I had to cut down on them. But that's the matter for the separate comment I'll leave.
So, first, regarding this:
“We find ourselves in a historic position: the American people have elected a man to be President, but the Constitution bars that man from serving as President. This creates obvious legal difficulties.”
I disagree with this on the grounds that I do not believe that the Constitution bars Trump from serving as President. I have read both the original article by Paulson and Baude arguing as such, as well as articles you have written on the subject, and I think they come up short. Your article “The President’s Insurrection” makes a reasonable case for Trump’s behavior on January 6 being disqualifying in the sense that, with or without a Fourteenth Amendment, someone shouldn’t be President if they behave in such a way, and was in fact part of the reason I declined to vote for him and voted third party. However, as a matter of proving that Trump is LITERALLY disqualified for office under the Constitution, I feel it (as well as the original Baude/Paulson article, I have not read their follow-up) comes up short in arguing that Trump was disqualified for engaging in insurrection.
Even if we were to accept the argument that Trump did in fact engage in insurrection (an argument I again am not convinced of, despite finding his actions very problematic) I also think that the argument that the President does not count as an officer of the United States is actually quite credible and that Trump is therefore exempt. Which actually makes your statement rather surprising to me; your article analyzing that question seemed like you considered this exemption for Trump to have at least some credibility. Perhaps since that article you have become more convinced that the President does qualify as an officer of the United States, but you seemed to believe it has at least some merit to it, so to see a flat declaration that “the Constitution bars that man from serving as President” was rather surprising.
But, my purpose here isn’t to try to convince you Trump isn’t disqualified; it’s pretty clear you’re not going to be dissuaded from that. The problem I have is you offer no qualifier of “my belief is” or anything like that, and instead assert it as definite fact (not just here either, in a separate footnote you declare without qualification “He’s already broken the Constitution’s qualifications clauses once”). Even if I did think Trump was disqualified, I would not assert such a thing as if it were some kind of hard fact, because quite frankly it isn’t. We’re not talking about something simple like age or number of terms served, but something far more blatantly subjective. This isn’t something like the natural born citizenship requirement where, even if there is some disagreement on exactly what a natural born citizen is, all of the definitions people have put forward are pretty objective if accepted. What I mean is, whether the definition is “anyone born as United States citizen” (the position I think easily has the strongest support; see, for example, Michael Ramsey’s “Originalism and Birthright Citizenship”) or the much more narrow definition of someone born in the United States of citizen parents, both are objective metrics and, so long as the circumstances of someone’s birth can be established, provide very objective criteria. That is not the case for the Disqualification Clause. The Constitution isn’t holy writ, there isn’t one “definite” correct interpretation of everything in it (the people who WROTE the thing disagreed on how to interpret it on some points). So I believe that even if I did think Trump was disqualified, I could only consider that to be my belief, not any kind of objective reality to be stated as fact.
Maybe the argument is to ignore theorycrafting and instead focus on the legal rulings involved; Roe v. Wade might have been blatantly wrong, but it was still the precedent held until it was overturned. So under that idea, one could try to say that the Colorado Supreme Court ruled against Trump and because the Supreme Court did not address the argument on insurrection but rather just said the Colorado Supreme Court couldn’t make the determination, that means Trump is legally barred under that precedent. This is problematic because the Supreme Court still said the Colorado Supreme Court couldn’t make the determination, thus nullifying the decision anyway (the SCOTUS’s opinion might have had problems, but it has rule of law for now). Even if we were to suppose the decision holds, the Colorado Supreme Court’s decision applies only to Colorado, which went to Harris anyway.
The final issue I have is that even if I were to grant everything, that Trump is undeniably and objectively disqualified from the presidency, he would still be president (assuming that the electors elect him and it is accepted by congress, which is almost certainly going to be the case). It might mean his position is against the constitution, but that doesn’t mean he doesn’t have the position.
It is perhaps a bit ironic for me to write all of this text on the portion where you say you don’t want to make every post about Trump into an argument on the subject (“However, at the same time, I don’t want to turn every single post about the de facto President into a fight about his legitimacy”), especially when I consider that my biggest disagreement on it is not technically your belief, but the way you assert it as fact. But, well, I ended up writing all of this, so might as well keep it.
But to address what was the actual purpose of your remark, which was you saying you didn’t want to refer to him as President Trump and were planning on Mr. Trump… I would recommend just saying “Trump” or “Donald Trump.” “Mr. Trump” is awkward and feels unnatural. On the other hand, people say “Trump” by itself all the time and it looks perfectly natural.
Moving onto parts of less argumentation, a few other comments…
… hrm. Re-reading he post, I feel like (aside from the Supreme Court, which I’ll get to) I don’t have much to comment on, as I don’t think I have any real disagreements and in fact found out some interesting things I didn’t know about. If just a few sentences had been slightly adjusted, I could’ve saved myself all of these paragraphs.
However, one election that most people probably never heard of but was of great importance to me was Alaska’s referendum on ranked choice voting. In 2020, Alaska implemented by referendum a change to the way its elections worked. More specifically, the primary has as many people who want to run (allowing multiple per party) and then the top 4 vote getters progress to the general election, which is decided by ranked choice voting. This year there was a referendum to try to undo that referendum, but it failed in a very close vote (0.2%), so ranked choice will stay. Now, I don’t live in Alaska, but I think this was a very positive thing.
I’ll admit that, although I was a major proponent of it previously, I’ve cooled a bit on ranked choice voting. There are definitely some issues with it. Still, I think it’s (on the whole) a major improvement over our current system, along with this method of handling primaries. Some kind of reform is absolutely needed from our first-past-the-post system, and this was a step in the right direction. So it’s good we didn’t take a step back, and maybe we can see things like this spread to more states, which would have been harder if it was repealed.
I have become a bit more bullish on approval voting—that is, you don’t rank them, you just vote for as many candidates as you want, and whoever get the most votes wins. This of course solves the problem of vote splitting. While this doesn’t allow you to give preferential voting as you can with ranked choice, it does solve some of the issues with it; it’s easier to understand and also allows you to call races faster. Personally I don’t think having to wait is that big of an issue, but it’s still something that people complain about with RCV, as if someone doesn’t get an outright majority you need every vote to be counted before you can tabulate them to determine the winner. Approval voting allows instant results.
Regardless of whether ranked choice or approval or whatever else is better, they’re certainly better than what we have now, and the fact we haven’t taken a step back into first-past-the-post is to me a major victory.
I feel like there was something else I wanted to say, but this is long enough so I’ll close it here (separate Supreme Court comment incoming!)
So, now for my Supreme Court thoughts, so long they need to be its own comment. In truth I’ve been wanting to post a lot of these SOMEWHERE, so this is a bit therapeutic to get it all out there. Unfortunately, due to waiting so long, it’ll probably be seen by not many people. Oh well!
I seem to be in the minority, but I do not think Ginsburg was, as you claim, “desperately trying to stay alive and cover up the extent of her illness to the public as she fought a return of what turned out to be lethal pancreatic cancer. All she wanted was to survive until Joe Biden could win the election and replace her… but she didn’t make it.” I have no doubt that Ginsburg would have preferred that Biden replace her than Trump. However, I do not think she was simply trying to stay alive with that goal. Indeed, if that WAS the goal, some of her decisions do not make much sense, such as continuing to want to join deliberations and write opinions while she was recovering from illness. The smarter choice regarding health would be to skip out on those for a while.
Here’s my take: I think if Hillary had won, Ginsburg still wouldn’t have resigned. She would have kept going. She’s repeatedly said she would keep doing the job as long as she thought she could do it, and I believe her. Admittedly, in the alternate world where Hillary won, I think the Republicans (if they still held the Senate) would’ve relented and confirmed Garland, shifting the court to the left and meaning even if Ginsburg was replaced by Barrett it would’ve had a lesser impact. (also, Kennedy probably would’ve retired midway into Hillary’s term anyway; by all appearances he wasn’t retiring strategically, he just was tired of the job)
However, if I may opine, I do not think the justices think the way the public or politicians do. I’m sure all of them would prefer that a president of the same party as the one that appointed them would appoint their replacement, as that new person would be far more likely to rule in the same way they do. However, I don’t think that’s anyone’s main reason for their timing of retiring. I don’t think, regardless of the identity of the president, any of them have any interest in retiring if they they weren’t already at least considering it. As noted above, Kennedy by various indications was just tired of the job and probably didn’t care too much about who was president at the time. Breyer might have been considering politics more specifically, but he was old and probably was considering retiring anyway and all the people screaming at him to retire was, if it played any role, just the tipping point for something he was already thinking about. I don’t think Ginsburg had interest in retiring at all, she liked the job and wanted to keep doing it.
But maybe I’m just being naive. I’m trying to psychoanalyze the decisions of people I never even met. But I do legitimately believe that (had she lived longer) Ginsburg would’ve continued to stay on the court as long as she continued wanting to be on it, regardless of the president.
I do think Alito is the one most likely to retire. I don’t think it’s Dobbs as you say, but more him possibly just getting tired of being on the court, which there is some evidence may be the case.
Thomas has shown no indications of not liking being on the court. The flurry of concurring opinions rather shows he loves being on the Supreme Court, and why expend all that extra energy if he was staying around to avoid retiring under Biden? I think he will continue to be on the Supreme Court regardless of who the president is as long as he feels he can continue doing the job and wants to keep doing it.
In regards to your question of who could replace him… well, I don’t know too much about federal judges in general, but of the ones I know about, James Ho seems the closest thing. Much like Thomas, he seems very willing to reconsider just about every precedent in existence, even to extents I feel are way too extreme. Also, you get diversity points—actually, probably even better ones than Thomas. Thomas was the second African-American justice, but with Ho you not only get the first Asian-American justice, you also get the first immigrant justice. The big question is whether someone with a paper trail like his could get past the Senate.
Now, let’s talk Sotomayor. I feel much of your discussion ignores a rather critical point, which is that it seems to assume the Democrats ARE capable of forcing her through. What a lot of commentators seem to miss is that while the Democratic CAUCUS has 50 people, there are only 46 people in congress with the party affiliation of Democrat. We can bump it up to 47 if we count Sanders who quite frankly should just be honest and label himself a Democrat, but the other three are a different matter.
Angus King has clear Democratic leanings—hence him caucusing with them rather than the Republicans—but still is an actual Independent. Sinema swapped her affiliation to Independent which certainly shows a break with the Democrats—but that might have just been a gambit for re-election due to worries about getting primary’d, and when she realized she’d lose anyway, she just decided to not run for re-election. Manchin also went Independent despite there being no political advantage to; Sinema at least might have been trying (and ultimately failing) to play 4D Chess, but Manchin had already said he wasn’t running for re-election, and so there was no political advantage at all to him to break with the Democrats.
Why is this important? Because the only actual reason to replace Sotomayor right now is partisan politics, and because these three have (to varying degrees) distanced themselves from the Democrats, it becomes a very open question as to whether they would be interested in supporting this. Maybe the Democrats could still do it if they manage to pick up Collins or Murkowski? But that seems dubious also.
In regards to more general thoughts on the Supreme Court, despite them getting Trump v. United States very wrong, on the whole I’d definitely take current majority over it being the other way around (I’ll take Trump v. United States if it meant getting Dobbs v. Jackson). However…
Conservatives no doubt are happy about having more control of the Supreme Court, but it may be a pyrrhic victory indeed given the desire of various Democrats to try to pack it. Would they have done so if they had won this election? I am not sure; the fact it hasn’t been possible (no trifecta) has allowed a lot to stay quiet about it, and we might have found more resistance had Democrats been the winners. So maybe we wouldn’t have seen a push to stack the court. But if it ends up 7-2 instead of 6-3? That’s a whole different story! I think if that happens, that would absolutely give them the backing and incentive to bump the Supreme Court up to 15 people the next time they get the trifecta.
This is the danger I see to conservatives should Sotomayor die while Trump is president with a Republican-controlled Senate. That swaps it to 7-2, and at that point I think Democrats will probably go for broke next time they get a chance (unless the way it turns out is they get the presidency and Senate but no House, and then get to somehow replace a Republican-appointed judge with a Democratic-appointed one, returning it to 6-3). Too much control of the Supreme Court could end up backfiring for Republicans.
Of course, if the court returns to 5-4 that means it’s precariously close to one Republican-appointed justice dying at a random point and letting the Democrats swap it for themselves. Ironically, this is actually an argument often raised for increasing the size of the court, namely the fact so much changes politically just because someone happens to die at the wrong time; if Ginsburg lived a few more months, things would have been very different. This is really not the case for any other single position in government; maybe a death can flip a Senate seat, but the high number of people in the Senate helps mitigate their importance. If the President dies, they’ll be replaced with the (presumably) like-minded Vice President, unless we get another Lincoln-Johnson situation I suppose. The Supreme Court can change massively just by one random death. Think of what would’ve happened if the assassination attempt against Kavanaugh had worked.
In the end, despite all of this writing, I kind of look at it and still feel uncertain about a bunch of things. Maybe I just wanted to hear myself talk a bunch. Still, the takeaway is I do have some considerable worries about judicial conservatives ending up in a potentially pyrrhic victory if they win so much on the Supreme Court that Democrats decide to just pack the court themselves and undo all of that. Sure, they can’t do that for at least 4 years, but if we end up with a 7-2 court I think they’ll be going for it the next time they get a trifecta, which will inevitably happen.
And that’s the end of my somewhat stream of consciousness comment. (I had to cut it down a bit, actually)
It's a good comment and I'm glad to get your streams sometimes; it's nice to get a clearer understanding of all the angles of your thinking!
I don't really agree with your psychological assessments of Ginsburg, Kennedy, or Thomas, but I don't have good legible reasons for that. It just doesn't feel right to me. You may end up being proved right. It is certainly true that, for most of living memory, Supreme Court retirements were not politically timed. In my mind, started to shift toward political timing during the Bush Years (I think Rhenquist's retirement, planned for June 2006, was politically timed at least in part), and then decisively became politically timed during the Obama presidency. Since then, I've viewed all voluntary retirements (Kennedy and Breyer) as political.
But I don't actually have any insight into their brains, and there's a lot of kayfabe around the justices' motivations! I could be wrong!
However, on Ginsburg specifically, I *do* think it's relevant that, reportedly, the last words she ever spoke on this Earth were, "My most fervent wish is that I will not be replaced until a new president is installed." Maybe she only realize the political crisis she had created for her team at the bitter end, but I do think this is good evidence she recognized it.
***
On replacing Sotomayor: you are, quite simply, correct that I should have pointed out the problems with getting a replacement nominee through Joe Manchin in a lame duck session. That's not a sure thing. Sotomayor really should have retired this summer (tactically speaking).
***
On the risks of a 7-2 court: if anything, I think that Sotomayor dying and being replaced would (slightly) *lower* the risk of court-packing. Much of the moral argument for court-packing on the left today (it seems to me) is that the current 5-3-1 conservative majority is *illegitimate*, because Republicans stole a seat (either by delaying Garland or rushing Barrett). They see themselves as being entitled to a 4-4-1 court right now (a court which would have preserved Roe), and so court-packing is only fighting illegitimate fire with other illegitimate fire.
If Sotomayor were to leave the Court during Trump's second term and get replaced in the ordinary fashion, this would shore up the legitimacy of the conservative majority, because the conservatives would have 5 seats even accounting for the "stolen seat" claims.
But, TBH, I think they'll go for it next time they have a trifecta no matter what, so I'm not sure these effects on the margin are a big deal either way.
I'll admit I'm basing my idea that Kennedy was just tired of the job and wanted to retire primarily based on some statements other people have made who met him. In particular, I remember Garrett Epps mentioning after Kennedy announced his retirement (can't remember where, I think it was when he was a guest in an episode of the the now-defunct First Mondays podcast) that he was absolutely expecting Kennedy to announce his retirement on the last day of opinions in June 2018, because Epps--who was actually there for the opinions and said that seeing Kennedy there only served to reinforce his thoughts on Kennedy--thought it was obvious that Kennedy was not enjoying the job anymore and just wanted to leave it. As a result, he said he shocked when Kennedy didn't announce when they were giving the final opinions of the term... but then was reassured of his interpretation after Kennedy did announce it shortly afterwards.
Regarding Ginsburg's "last words": That was something I wanted to touch on, but had to cut because I had actually hit the character limit and didn't want to stretch it into two comments. Those weren't actually her last words, though, but something she said several days before her death according to her daughter.
The evidence for the statement “All she wanted was to survive until Joe Biden could win the election and replace her” you link to an article mentioning how her daughter said Ginsburg dictated to her “My most fervent wish is that I will not be replaced until a new president is installed.” Now, that might be evidence of your interpretation… but I again read it more as Ginsburg, realizing she was going to die very very soon (the links ultimately lead back to https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87 which says “Just days before her death, as her strength waned,” and then gives a mention of it) figured she might as well say that in the hopes it might change something. Again, I’m sure she was fully aware that someone appointed by Biden would be far closer to her than anyone appointed by Trump, hence that statement, but I again do not think she was in fact staying on specifically for the purpose of wanting to retire under Biden or just struggling to stay alive with that goal.
One other thing I wanted to note but had to cut was one thing I found interesting, which is the idea of court packing became much more popular after Trump v. United States this year; it had been floated before, but it seemed like that was the case that spurred them on. It seems a bit surprising it was that rather than Dobbs that seemed to do it. Perhaps it's that even if a lot of liberals hate Dobbs, Dobbs as a constitutional matter is significantly more defensible than Trump v. United States was. I know a lot of people (conservative and liberal) view Supreme Court decisions entirely in the view of whether it happens to support their preferred policies rather than the actual constitutional or legal questions, but some obviously do at least try to pay some attention to the actual arguments, or at least pay attention to what other people say about them. If you come across Akhil Amar, for example, you’ll find him say, despite being liberal politically and pro-choice, that Roe was wrong. But in regards to Trump v. US he declared it one of the worst decisions of his lifetime. Yeah, that's just one example of a guy who thought that, but this sort of thing does to some extent trickle down to the general public. Even if Dobbs had more far-reaching consequences, there’s a lot more to get upset about LEGALLY in Trump v. US than in Dobbs and that gives much better support to the idea of a renegade court than them overturning Roe, a decision that even a lot of liberal legal scholars have to admit had flawed reasoning. Alternatively, it was a one-two punch of the decisions that prompted the increased support for packing.
Trump v. United States is the ultimate in John Roberts thinking he can cut the baby in half in a way that makes everyone happy and solves all his political problems (to hell with the law) and then whoops dead baby and everyone's mad at him.
(Trump v. U.S. is quite bad, and I think even more interesting than the left-wing anger about it is the dearth of defenses of it on the right. Conservative legal decisions get conservative legal defenses! But Trump v. U.S. wasn't, so it didn't.)
I think you're right that it spurred harder calls to court-packing. So maybe the best thing the conservative majority can do is not rule like idiots -- and, you're right, the more votes they have, the harder it is to maintain that and not get carried away with being powerful.
I’m about as pro Trump/gop as it gets and pro-life. I go to Catholic Church.
If you guys ban IVF I will vote democrat the rest of my life. I can not think of a stupider and more self destructive policy.
Pro life needs to accept that it’s not democratically popular. If you convince a politician to endorse an unpopular policy one of two things will happen. It will get overturned in plebiscite and/or that politician will eventually lose.
You have to win hearts and minds. Politicians can’t do that for you. They can make things easier day by giving you school vouchers so you can send your kids to schools that teach abortion is wrong. Or a bigger child tax credit. You know popular stuff within their control. But they can’t pass and make stick a law with 60%+ of the population against it.
Here, perhaps, is a good example of how the MSM narrative that "pro-lifers want to ban IVF" is causing you to misinterpret what I actually suggest in the article.
First, pro-lifers do not generally have a problem with IVF in general. We have a problem only with forms of IVF that deliberately kill embryonic human children (or dump them into permanent deep-freeze). I would like to see that specific practice banned. It is not essential to IVF, and IVF would be just fine without it. I have no interest in banning IVF, and I think very few pro-lifers do.
(The Catholic Church, for its part, views the use of IVF as a serious sin, but it's the sin of decoupling procreation from its sexual meaning, not the much more serious sin of murder.)
But I only mentioned IVF one time in this article, and I wasn't calling for a ban. All I said was that pro-lifers may need to fight the incoming administration attempts to *expand* embryo-destructive forms of IVF. For example, Mr. Trump has expressed a desire to require insurance companies to cover IVF, specifically (not just fertility treatments broadly), without regard for the destruction of embryos. That would be very bad! From both a traditional Republican "we shouldn't overregulate the insurance market because it will drive up prices for everyone" perspective, and from a pro-life "we shouldn't encourage forms of IVF that destroy embryos," we should fight that proposed insurance mandate.
But fighting a proposed insurance mandate for embryo-destructive IVF is a loooooong way from trying to ban all IVF.
As for popular stuff: heck man you should see my pet pro-life issue: https://decivitate.substack.com/p/how-to-claim-your-unborn-child-on
I am strongly in favor of the embryonic destruction form of IVF.
In addition to the fact that it is a more effective form of IVF, it opens the possibility for polygenic scoring. That will be the single greatest boon to human civilization in history. The dramatic reduction of nearly all forms of biological infirmity and perhaps even the enhancement of human intelligence. My father and I both have had to deal with type 1 diabetes from birth. Polygenic scoring with four embryos reduces that risk 75%, and it’s only going to get better. I’m not giving that up because of your superstitious nonsense.
Yeah, a woman murdering the baby in her womb is macabre. It says something terrible about that woman. A person ensuring the health and capabilities of their children is doing a glorious and godly thing.
From the secular perspective, this is murder. There's nothing superstitious about that. Embryos are humans and you are not "reducing the risk" of diabetes; you're simply killing people with diabetes.
It is *also* eugenics, which has its own dark history. After all, if we're going to kill people who have diabetes as embryos to "reduce biological infirmity," why don't we kill people with diabetes as newborns, too? Why don't we kill *all* the lebensunwertes leben?
It does, as you say, say something terrible about you that you support this. I am, frankly, much more sympathetic to the woman grappling with pressure from her family and boyfriend to abort than with this cold-eyed extermination of defectives.
You nevertheless might *possibly* be right that this is popular, although I doubt that such an explicitly eugenic argument enjoys broad popular support. It nevertheless must be opposed by all people of good conscience, and I don't think it's *so* popular that it's beyond the reach of politics.
Thanks for posting your perspective all the same.
1). Embryos are not humans.
You are getting too autistic about this. A woman raw dogging some dude and killing a growing baby inside her is a very different thing than people trying to bring life into the world on purpose making embryos in a lab.
If you can’t understand that you’re lost. There is a reason 88% of Americans including a majority of people against abortion disagree with you.
2) Eugenics is awesome! You’re typing this on a device made possible by eugenics making people high iq enough to invent it.
Killing people is bad, and up until recently killing people was the only way to practice eugenics (there was also letting weak children starve to death, which sucked too). IVF has finally solved this problem, a blessing of unbelievable proportions of there ever was one.
“Why don’t we?”
Because it’s messy and ugly and where do you draw the line. Turns out you don’t need to draw the line at all”embryo” to draw the line before auschwitz. Normal non spergs can get off the slippery slope before that.
It’s a fucked up world where you have more sympathy for raw dogging sluts using abortion as birth control, but hate people trying to bring happy and healthy lives into the world and make it a better place.
Most peoples view of abortion isn’t based on some spergy “logic” about when the soul enters the cells or some nonsense. It’s about the underlying intentions and effects of the action itself has on the person and society.
> "Embryos are not humans."
I agree that pig embryos aren't human; they're pigs. Horse embryos aren't human; they're horses.
Human embryos, however, are clearly humans! Members of our species, organisms in their own right! I think the inquiry should end there. Human beings have rights. Do not kill them. Some people try to argue that some human beings don't have value yet because they don't have personhood or ensoulment or whatever. I don't think those arguments belong in the public sphere.
You mentioned, however, that you are Catholic, and it surprises me that you are unaware that the faith you profess insists that all human beings are persons with a right to life from the time of fertilization forward, condemns IVF as a mortal sin, condemns eugenics as an offense against human dignity, and condemns embryo-destructive IVF as murder. None of these seem compatible with what you are saying.
> Killing people is bad
Well I'm glad we agree on this, at least. I suppose you have some reason for believing that embryos aren't people? Some reason that isn't fundamentally a theological argument?
> A woman raw dogging some dude and killing a growing baby inside her is a very different thing than people trying to bring life into the world on purpose making embryos in a lab.
True! A woman raw-dogging a dude is how babies are ordinarily made, and it's rarely done while premeditating murder (though all too many of them still, horribly, follow through on it).
Creating a bunch of babies in a lab with the intention *beforehand* to kill the "unfit" is an order of magnitude more cruel, not to mention creepy.
The way you talk about women in your post ("slut"? really?) makes me wonder whether you identify as pro-life because you believe in human rights or because you hold women in pitiless contempt. The pro-choicers are always telling me that people like this exist, but I rarely meet any.
> Normal non spergs can get off the slippery slope before Auschwitz.
I think our last sleigh ride down this trail provides good evidence that we very much cannot. There is no limiting principle here.
> You’re typing this on a device made possible by eugenics making people high iq enough to invent it.
If a full-blown, highly effective eugenics program had been up and running near the dawn of the computing era, a number of foundational figures in the field would have died. Alan Turing comes to mind. (At the dawn of the computing era, homosexuality was considered highly dysgenic.)
> There is a reason 88% of Americans including a majority of people against abortion disagree with you.
I don't think this is true, but I haven't been able to find current polling on "is eugenics good?"
I think if you asked "Is eugenics good?" most people would say no. This, however, is mostly because we've been taught that eugenics is bad.
However, if you asked if parents should be allowed to destroy embryos with genetic disorders, I think fewer people would say no. This is because while we've been taught that eugenics is bad, we haven't really been taught why.
"Eugenics is awesome! You’re typing this on a device made possible by eugenics making people high iq enough to invent it."
With all due respect, what alternate timeline are you typing from? Because the guys who invented the computer were not produced via a breeding program.
"Most peoples view of abortion isn’t based on some spergy “logic” about when the soul enters the cells or some nonsense."
This is actually true--most people's position on abortion isn't based on any kind of logic.
"It’s about the underlying intentions and effects of the action itself has on the person and society."
This part is wrong. Most people base their position on abortion on either how much they want no-consequences sex or how much the unborn child looks like a born child.
“Eugenics” is just the genetically superior outbreeding the genetically inferior. It doesn’t have to be a government breeding program. For 99.9999% of human history it was just called “evolution”. The smarter and stronger would have 40% of their kids die instead of 60% for the less worthy or something along those lines, and this would improve genetic stock over time.
Gregory Clark detailed this pretty well in his work showing the IQ increase in Europe starting around 1000AD due to a higher survival rate of successful yeomen farmers and merchants leading to demographic replacement of the lower orders via differential child mortality. Dead children literally made us smart enough to have an Industrial Revolution.
After the Industrial Revolution we had so much surplus that the children of the weak stopped dying, which potentially could have caused dysgenics.
Hitler took this idea (in a very confused a contradictory way) too far and got lots of strong smart white people killed for no good reason. Though it’s hard to blame eugenics because Stalin believed the exact opposite and Churchill loved eugenics too.
So we all decided rightly that “eugenics” shouldn’t be used to justify death camps and wars of aggression.
But lo and behold we now have the technology to do everything eugenics promised us AND MORE! X1000. And all without any killing or war or force or any other nonsense. It’s literally just science + human freedom!
Or we can take door number 2, where mutation load gets worse every generation and the low iq third world outbreeds us and floods our borders and makes the entire world into the third world and civilization collapses. But hey, at least we followed the orders or some child molesting faggot priests.
The claim that pro-lifers want to "ban" IVF has largely arisen from a situation in Alabama. The state supreme court had ruled that IVF couples could sue for the wrongful death of their embryonic children who had been wrongfully and negligently destroyed. In the case in question, the IVF clinic had left unlocked the door to its cryopreservation room, allowing a psychiatric patient to wander in from the adjoining hospital and smash some vials containing their frozen embryos on the floor. The clinic responded by temporarily shutting down, apparently to pressure the legislature to give it new protection from all legal liability -- which the witless legislature promptly did, giving IVF clinics blanket immunity from all civil or criminal liability no matter how negligently, incompetently, or maliciously it destroys embryos. Pro-lifers (and anyone actually realizing the implications of this exemption of the clinics from all decent standards for medical malpractice claims) objected. As for what some might call the "normal and natural" embryo losses that routinely occur in IVF clinics, they are already covered by the standard IVF consent forms -- 17 pages of contract in which the parents agree in advance not to hold the clinic liable for such destruction. That was never what the Alabama dispute was about. Suits against IVF clinics for outright negligence that destroyed embryos (failing to maintain or monitor the freezers, etc.) have proceeded, and won big civil payouts, in staunchly pro-abortion states like California -- so now the supposedly pro-life state of Alabama is the one place in the country where grieving parents of these embryos have no recourse. Trump (as usual) misperceived the issue and decided he might like to protect the clinics nationally, because "we need more babies." What the negligent clinics are doing, though, doesn't have a lot to do with producing live babies.
Excellently put.
I don’t know… I think you could have held back on topic #6 a week and posted it exactly as-is and we would have been plenty happy with that walk-through! Thanks as always for a more-detailed-than-promised summary!
I have a number of thoughts… but my bigger ones are on the Supreme Court and thus I will separate my comments so any discussion on that topic is not bogged down by the rest. Or at least that was the original reason... I then realized my Supreme Court thoughts were so long they couldn't even fit in their own comment, and I had to cut down on them. But that's the matter for the separate comment I'll leave.
So, first, regarding this:
“We find ourselves in a historic position: the American people have elected a man to be President, but the Constitution bars that man from serving as President. This creates obvious legal difficulties.”
I disagree with this on the grounds that I do not believe that the Constitution bars Trump from serving as President. I have read both the original article by Paulson and Baude arguing as such, as well as articles you have written on the subject, and I think they come up short. Your article “The President’s Insurrection” makes a reasonable case for Trump’s behavior on January 6 being disqualifying in the sense that, with or without a Fourteenth Amendment, someone shouldn’t be President if they behave in such a way, and was in fact part of the reason I declined to vote for him and voted third party. However, as a matter of proving that Trump is LITERALLY disqualified for office under the Constitution, I feel it (as well as the original Baude/Paulson article, I have not read their follow-up) comes up short in arguing that Trump was disqualified for engaging in insurrection.
Even if we were to accept the argument that Trump did in fact engage in insurrection (an argument I again am not convinced of, despite finding his actions very problematic) I also think that the argument that the President does not count as an officer of the United States is actually quite credible and that Trump is therefore exempt. Which actually makes your statement rather surprising to me; your article analyzing that question seemed like you considered this exemption for Trump to have at least some credibility. Perhaps since that article you have become more convinced that the President does qualify as an officer of the United States, but you seemed to believe it has at least some merit to it, so to see a flat declaration that “the Constitution bars that man from serving as President” was rather surprising.
But, my purpose here isn’t to try to convince you Trump isn’t disqualified; it’s pretty clear you’re not going to be dissuaded from that. The problem I have is you offer no qualifier of “my belief is” or anything like that, and instead assert it as definite fact (not just here either, in a separate footnote you declare without qualification “He’s already broken the Constitution’s qualifications clauses once”). Even if I did think Trump was disqualified, I would not assert such a thing as if it were some kind of hard fact, because quite frankly it isn’t. We’re not talking about something simple like age or number of terms served, but something far more blatantly subjective. This isn’t something like the natural born citizenship requirement where, even if there is some disagreement on exactly what a natural born citizen is, all of the definitions people have put forward are pretty objective if accepted. What I mean is, whether the definition is “anyone born as United States citizen” (the position I think easily has the strongest support; see, for example, Michael Ramsey’s “Originalism and Birthright Citizenship”) or the much more narrow definition of someone born in the United States of citizen parents, both are objective metrics and, so long as the circumstances of someone’s birth can be established, provide very objective criteria. That is not the case for the Disqualification Clause. The Constitution isn’t holy writ, there isn’t one “definite” correct interpretation of everything in it (the people who WROTE the thing disagreed on how to interpret it on some points). So I believe that even if I did think Trump was disqualified, I could only consider that to be my belief, not any kind of objective reality to be stated as fact.
Maybe the argument is to ignore theorycrafting and instead focus on the legal rulings involved; Roe v. Wade might have been blatantly wrong, but it was still the precedent held until it was overturned. So under that idea, one could try to say that the Colorado Supreme Court ruled against Trump and because the Supreme Court did not address the argument on insurrection but rather just said the Colorado Supreme Court couldn’t make the determination, that means Trump is legally barred under that precedent. This is problematic because the Supreme Court still said the Colorado Supreme Court couldn’t make the determination, thus nullifying the decision anyway (the SCOTUS’s opinion might have had problems, but it has rule of law for now). Even if we were to suppose the decision holds, the Colorado Supreme Court’s decision applies only to Colorado, which went to Harris anyway.
The final issue I have is that even if I were to grant everything, that Trump is undeniably and objectively disqualified from the presidency, he would still be president (assuming that the electors elect him and it is accepted by congress, which is almost certainly going to be the case). It might mean his position is against the constitution, but that doesn’t mean he doesn’t have the position.
It is perhaps a bit ironic for me to write all of this text on the portion where you say you don’t want to make every post about Trump into an argument on the subject (“However, at the same time, I don’t want to turn every single post about the de facto President into a fight about his legitimacy”), especially when I consider that my biggest disagreement on it is not technically your belief, but the way you assert it as fact. But, well, I ended up writing all of this, so might as well keep it.
But to address what was the actual purpose of your remark, which was you saying you didn’t want to refer to him as President Trump and were planning on Mr. Trump… I would recommend just saying “Trump” or “Donald Trump.” “Mr. Trump” is awkward and feels unnatural. On the other hand, people say “Trump” by itself all the time and it looks perfectly natural.
Moving onto parts of less argumentation, a few other comments…
… hrm. Re-reading he post, I feel like (aside from the Supreme Court, which I’ll get to) I don’t have much to comment on, as I don’t think I have any real disagreements and in fact found out some interesting things I didn’t know about. If just a few sentences had been slightly adjusted, I could’ve saved myself all of these paragraphs.
However, one election that most people probably never heard of but was of great importance to me was Alaska’s referendum on ranked choice voting. In 2020, Alaska implemented by referendum a change to the way its elections worked. More specifically, the primary has as many people who want to run (allowing multiple per party) and then the top 4 vote getters progress to the general election, which is decided by ranked choice voting. This year there was a referendum to try to undo that referendum, but it failed in a very close vote (0.2%), so ranked choice will stay. Now, I don’t live in Alaska, but I think this was a very positive thing.
I’ll admit that, although I was a major proponent of it previously, I’ve cooled a bit on ranked choice voting. There are definitely some issues with it. Still, I think it’s (on the whole) a major improvement over our current system, along with this method of handling primaries. Some kind of reform is absolutely needed from our first-past-the-post system, and this was a step in the right direction. So it’s good we didn’t take a step back, and maybe we can see things like this spread to more states, which would have been harder if it was repealed.
I have become a bit more bullish on approval voting—that is, you don’t rank them, you just vote for as many candidates as you want, and whoever get the most votes wins. This of course solves the problem of vote splitting. While this doesn’t allow you to give preferential voting as you can with ranked choice, it does solve some of the issues with it; it’s easier to understand and also allows you to call races faster. Personally I don’t think having to wait is that big of an issue, but it’s still something that people complain about with RCV, as if someone doesn’t get an outright majority you need every vote to be counted before you can tabulate them to determine the winner. Approval voting allows instant results.
Regardless of whether ranked choice or approval or whatever else is better, they’re certainly better than what we have now, and the fact we haven’t taken a step back into first-past-the-post is to me a major victory.
I feel like there was something else I wanted to say, but this is long enough so I’ll close it here (separate Supreme Court comment incoming!)
So, now for my Supreme Court thoughts, so long they need to be its own comment. In truth I’ve been wanting to post a lot of these SOMEWHERE, so this is a bit therapeutic to get it all out there. Unfortunately, due to waiting so long, it’ll probably be seen by not many people. Oh well!
I seem to be in the minority, but I do not think Ginsburg was, as you claim, “desperately trying to stay alive and cover up the extent of her illness to the public as she fought a return of what turned out to be lethal pancreatic cancer. All she wanted was to survive until Joe Biden could win the election and replace her… but she didn’t make it.” I have no doubt that Ginsburg would have preferred that Biden replace her than Trump. However, I do not think she was simply trying to stay alive with that goal. Indeed, if that WAS the goal, some of her decisions do not make much sense, such as continuing to want to join deliberations and write opinions while she was recovering from illness. The smarter choice regarding health would be to skip out on those for a while.
Here’s my take: I think if Hillary had won, Ginsburg still wouldn’t have resigned. She would have kept going. She’s repeatedly said she would keep doing the job as long as she thought she could do it, and I believe her. Admittedly, in the alternate world where Hillary won, I think the Republicans (if they still held the Senate) would’ve relented and confirmed Garland, shifting the court to the left and meaning even if Ginsburg was replaced by Barrett it would’ve had a lesser impact. (also, Kennedy probably would’ve retired midway into Hillary’s term anyway; by all appearances he wasn’t retiring strategically, he just was tired of the job)
However, if I may opine, I do not think the justices think the way the public or politicians do. I’m sure all of them would prefer that a president of the same party as the one that appointed them would appoint their replacement, as that new person would be far more likely to rule in the same way they do. However, I don’t think that’s anyone’s main reason for their timing of retiring. I don’t think, regardless of the identity of the president, any of them have any interest in retiring if they they weren’t already at least considering it. As noted above, Kennedy by various indications was just tired of the job and probably didn’t care too much about who was president at the time. Breyer might have been considering politics more specifically, but he was old and probably was considering retiring anyway and all the people screaming at him to retire was, if it played any role, just the tipping point for something he was already thinking about. I don’t think Ginsburg had interest in retiring at all, she liked the job and wanted to keep doing it.
But maybe I’m just being naive. I’m trying to psychoanalyze the decisions of people I never even met. But I do legitimately believe that (had she lived longer) Ginsburg would’ve continued to stay on the court as long as she continued wanting to be on it, regardless of the president.
I do think Alito is the one most likely to retire. I don’t think it’s Dobbs as you say, but more him possibly just getting tired of being on the court, which there is some evidence may be the case.
Thomas has shown no indications of not liking being on the court. The flurry of concurring opinions rather shows he loves being on the Supreme Court, and why expend all that extra energy if he was staying around to avoid retiring under Biden? I think he will continue to be on the Supreme Court regardless of who the president is as long as he feels he can continue doing the job and wants to keep doing it.
In regards to your question of who could replace him… well, I don’t know too much about federal judges in general, but of the ones I know about, James Ho seems the closest thing. Much like Thomas, he seems very willing to reconsider just about every precedent in existence, even to extents I feel are way too extreme. Also, you get diversity points—actually, probably even better ones than Thomas. Thomas was the second African-American justice, but with Ho you not only get the first Asian-American justice, you also get the first immigrant justice. The big question is whether someone with a paper trail like his could get past the Senate.
Now, let’s talk Sotomayor. I feel much of your discussion ignores a rather critical point, which is that it seems to assume the Democrats ARE capable of forcing her through. What a lot of commentators seem to miss is that while the Democratic CAUCUS has 50 people, there are only 46 people in congress with the party affiliation of Democrat. We can bump it up to 47 if we count Sanders who quite frankly should just be honest and label himself a Democrat, but the other three are a different matter.
Angus King has clear Democratic leanings—hence him caucusing with them rather than the Republicans—but still is an actual Independent. Sinema swapped her affiliation to Independent which certainly shows a break with the Democrats—but that might have just been a gambit for re-election due to worries about getting primary’d, and when she realized she’d lose anyway, she just decided to not run for re-election. Manchin also went Independent despite there being no political advantage to; Sinema at least might have been trying (and ultimately failing) to play 4D Chess, but Manchin had already said he wasn’t running for re-election, and so there was no political advantage at all to him to break with the Democrats.
Why is this important? Because the only actual reason to replace Sotomayor right now is partisan politics, and because these three have (to varying degrees) distanced themselves from the Democrats, it becomes a very open question as to whether they would be interested in supporting this. Maybe the Democrats could still do it if they manage to pick up Collins or Murkowski? But that seems dubious also.
In regards to more general thoughts on the Supreme Court, despite them getting Trump v. United States very wrong, on the whole I’d definitely take current majority over it being the other way around (I’ll take Trump v. United States if it meant getting Dobbs v. Jackson). However…
Conservatives no doubt are happy about having more control of the Supreme Court, but it may be a pyrrhic victory indeed given the desire of various Democrats to try to pack it. Would they have done so if they had won this election? I am not sure; the fact it hasn’t been possible (no trifecta) has allowed a lot to stay quiet about it, and we might have found more resistance had Democrats been the winners. So maybe we wouldn’t have seen a push to stack the court. But if it ends up 7-2 instead of 6-3? That’s a whole different story! I think if that happens, that would absolutely give them the backing and incentive to bump the Supreme Court up to 15 people the next time they get the trifecta.
This is the danger I see to conservatives should Sotomayor die while Trump is president with a Republican-controlled Senate. That swaps it to 7-2, and at that point I think Democrats will probably go for broke next time they get a chance (unless the way it turns out is they get the presidency and Senate but no House, and then get to somehow replace a Republican-appointed judge with a Democratic-appointed one, returning it to 6-3). Too much control of the Supreme Court could end up backfiring for Republicans.
Of course, if the court returns to 5-4 that means it’s precariously close to one Republican-appointed justice dying at a random point and letting the Democrats swap it for themselves. Ironically, this is actually an argument often raised for increasing the size of the court, namely the fact so much changes politically just because someone happens to die at the wrong time; if Ginsburg lived a few more months, things would have been very different. This is really not the case for any other single position in government; maybe a death can flip a Senate seat, but the high number of people in the Senate helps mitigate their importance. If the President dies, they’ll be replaced with the (presumably) like-minded Vice President, unless we get another Lincoln-Johnson situation I suppose. The Supreme Court can change massively just by one random death. Think of what would’ve happened if the assassination attempt against Kavanaugh had worked.
In the end, despite all of this writing, I kind of look at it and still feel uncertain about a bunch of things. Maybe I just wanted to hear myself talk a bunch. Still, the takeaway is I do have some considerable worries about judicial conservatives ending up in a potentially pyrrhic victory if they win so much on the Supreme Court that Democrats decide to just pack the court themselves and undo all of that. Sure, they can’t do that for at least 4 years, but if we end up with a 7-2 court I think they’ll be going for it the next time they get a trifecta, which will inevitably happen.
And that’s the end of my somewhat stream of consciousness comment. (I had to cut it down a bit, actually)
It's a good comment and I'm glad to get your streams sometimes; it's nice to get a clearer understanding of all the angles of your thinking!
I don't really agree with your psychological assessments of Ginsburg, Kennedy, or Thomas, but I don't have good legible reasons for that. It just doesn't feel right to me. You may end up being proved right. It is certainly true that, for most of living memory, Supreme Court retirements were not politically timed. In my mind, started to shift toward political timing during the Bush Years (I think Rhenquist's retirement, planned for June 2006, was politically timed at least in part), and then decisively became politically timed during the Obama presidency. Since then, I've viewed all voluntary retirements (Kennedy and Breyer) as political.
But I don't actually have any insight into their brains, and there's a lot of kayfabe around the justices' motivations! I could be wrong!
However, on Ginsburg specifically, I *do* think it's relevant that, reportedly, the last words she ever spoke on this Earth were, "My most fervent wish is that I will not be replaced until a new president is installed." Maybe she only realize the political crisis she had created for her team at the bitter end, but I do think this is good evidence she recognized it.
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On replacing Sotomayor: you are, quite simply, correct that I should have pointed out the problems with getting a replacement nominee through Joe Manchin in a lame duck session. That's not a sure thing. Sotomayor really should have retired this summer (tactically speaking).
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On the risks of a 7-2 court: if anything, I think that Sotomayor dying and being replaced would (slightly) *lower* the risk of court-packing. Much of the moral argument for court-packing on the left today (it seems to me) is that the current 5-3-1 conservative majority is *illegitimate*, because Republicans stole a seat (either by delaying Garland or rushing Barrett). They see themselves as being entitled to a 4-4-1 court right now (a court which would have preserved Roe), and so court-packing is only fighting illegitimate fire with other illegitimate fire.
If Sotomayor were to leave the Court during Trump's second term and get replaced in the ordinary fashion, this would shore up the legitimacy of the conservative majority, because the conservatives would have 5 seats even accounting for the "stolen seat" claims.
But, TBH, I think they'll go for it next time they have a trifecta no matter what, so I'm not sure these effects on the margin are a big deal either way.
Again, I could be wrong.
I'll admit I'm basing my idea that Kennedy was just tired of the job and wanted to retire primarily based on some statements other people have made who met him. In particular, I remember Garrett Epps mentioning after Kennedy announced his retirement (can't remember where, I think it was when he was a guest in an episode of the the now-defunct First Mondays podcast) that he was absolutely expecting Kennedy to announce his retirement on the last day of opinions in June 2018, because Epps--who was actually there for the opinions and said that seeing Kennedy there only served to reinforce his thoughts on Kennedy--thought it was obvious that Kennedy was not enjoying the job anymore and just wanted to leave it. As a result, he said he shocked when Kennedy didn't announce when they were giving the final opinions of the term... but then was reassured of his interpretation after Kennedy did announce it shortly afterwards.
Regarding Ginsburg's "last words": That was something I wanted to touch on, but had to cut because I had actually hit the character limit and didn't want to stretch it into two comments. Those weren't actually her last words, though, but something she said several days before her death according to her daughter.
The evidence for the statement “All she wanted was to survive until Joe Biden could win the election and replace her” you link to an article mentioning how her daughter said Ginsburg dictated to her “My most fervent wish is that I will not be replaced until a new president is installed.” Now, that might be evidence of your interpretation… but I again read it more as Ginsburg, realizing she was going to die very very soon (the links ultimately lead back to https://www.npr.org/2020/09/18/100306972/justice-ruth-bader-ginsburg-champion-of-gender-equality-dies-at-87 which says “Just days before her death, as her strength waned,” and then gives a mention of it) figured she might as well say that in the hopes it might change something. Again, I’m sure she was fully aware that someone appointed by Biden would be far closer to her than anyone appointed by Trump, hence that statement, but I again do not think she was in fact staying on specifically for the purpose of wanting to retire under Biden or just struggling to stay alive with that goal.
One other thing I wanted to note but had to cut was one thing I found interesting, which is the idea of court packing became much more popular after Trump v. United States this year; it had been floated before, but it seemed like that was the case that spurred them on. It seems a bit surprising it was that rather than Dobbs that seemed to do it. Perhaps it's that even if a lot of liberals hate Dobbs, Dobbs as a constitutional matter is significantly more defensible than Trump v. United States was. I know a lot of people (conservative and liberal) view Supreme Court decisions entirely in the view of whether it happens to support their preferred policies rather than the actual constitutional or legal questions, but some obviously do at least try to pay some attention to the actual arguments, or at least pay attention to what other people say about them. If you come across Akhil Amar, for example, you’ll find him say, despite being liberal politically and pro-choice, that Roe was wrong. But in regards to Trump v. US he declared it one of the worst decisions of his lifetime. Yeah, that's just one example of a guy who thought that, but this sort of thing does to some extent trickle down to the general public. Even if Dobbs had more far-reaching consequences, there’s a lot more to get upset about LEGALLY in Trump v. US than in Dobbs and that gives much better support to the idea of a renegade court than them overturning Roe, a decision that even a lot of liberal legal scholars have to admit had flawed reasoning. Alternatively, it was a one-two punch of the decisions that prompted the increased support for packing.
Trump v. United States is the ultimate in John Roberts thinking he can cut the baby in half in a way that makes everyone happy and solves all his political problems (to hell with the law) and then whoops dead baby and everyone's mad at him.
(Trump v. U.S. is quite bad, and I think even more interesting than the left-wing anger about it is the dearth of defenses of it on the right. Conservative legal decisions get conservative legal defenses! But Trump v. U.S. wasn't, so it didn't.)
I think you're right that it spurred harder calls to court-packing. So maybe the best thing the conservative majority can do is not rule like idiots -- and, you're right, the more votes they have, the harder it is to maintain that and not get carried away with being powerful.