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Ruth Bader Ginsburg has died (npr.org)
1738 points by _zhqs on Sept 18, 2020 | hide | past | favorite | 1452 comments

I think reading about Ruth and Antonin Scalia's friendship was the most wholesome political reading I've ever done. Hearing people divided in opinion, but not bitterly so, working together to figure out the best framework to construct American society from was inspirational. I hope the two halves of the political world can become friends in the way they were.

Rest in peace Ruth. I hope if there's an after you and Antonin are living it up.

Was so lovely after reading the article, that the point that stuck with me, aligned with your comment right at the top.

Maybe there's some sort of new "non-denominational creed" we could all sign up for.

~" We may not agree but I will always listen to you. I will always consider your opinion with respect and will endeavour to understand your reasoning. My views are not set - my goal is to listen to arguments to come to an informed position, I can honestly take forward "

As I typed that, I could hear the happy-clappy sounds of some mocking-utopia ringing in my ears - but goddamnit, it doesn't sound too hard for us to each put it into action. I'm as guilty as the next person, but I'm going to try going forward.

This is a key aspect of the struggle of civilization and not utopian at all. If we hope to change anyone's mind and reach a level of social consensus on anything then it's imperative we make a safe space for everyone to think and have civil discourse. Knee jerk recriminations for essentially thinking is the recipe for entrenchment of positions and pushing people to the margins where they are more likely to mix with extremists. RBG and Scalia were a great example of how to disagree respectfully and not treat ideas as a personal threat but to engage with them with enthusiasm. I am with you in your quest to listen and give ideas their due and all people respect.

it's not just about listening to ideas. if it were that easy, we'd already be more socially cohesive. it's about subtler things like real empathy, where you can actually see and follow the chain of reason someone takes to get to a position, however outlandish you think that is at the outset. it's about holding contradictory ideas in your head at the same time, constantly, about everything, rather than retreating into your warm and cozy ideological corner at every dissonance.

but it's also about not simply giving in to the outlandish because you want to create a safe space. that means calling someone out for what is usually some form of aggression without alienating or offending, putting real social capital on the line, and requiring self-restraint, courage, a bit of charisma, and more.

and then you have media organizations like npr itself, nytimes, and twitter actively trying to play both sides, instigating while also trying to claim the moral high ground, feeding divisiveness.

it's hard, and takes active, willful effort from (nearly) everyone.

If you really want to find a compelling starting point for the state of our current public political discourse, you may find it in the repeal of the Fairness Doctrine in 1987. Rush Limbaugh's first radio broadcast airs in 1988 which introduced "anger-tainment" as a very profitable political news model. As time passes, this new business model affected every news organization in one way or another, to various degrees, willingly or not.


i'm not sure the (repeal of the) fairness doctrine is a prime culprit, but i'm open to hearing a fuller perspective.

more to the point, i just heard a real example of the kind of empathy and compassion we need by nba hall-of-famer isaiah thomas on tnt's "the arena" airing right now, of all places.

it was in relation to LA county sheriff alex villanueva calling out lebron james to put up money for the recent shooting of two sheriff deputies in compton. this is a powder-keg issue here in LA right now. the knee-jerk reaction would have been to put down the sheriff for an unreasonable emotional outburst, but isaiah basically extended his hand and narrated how he understood where the sheriff was coming from, even if the demand was not exactly well thought out.

that's really hard to do in the moment, and my respect for isaiah just rose significantly because of it.

I'm not sure how old you are, but think about what you saw on that political / news show then imagine how Walter Cronkite would have reported those events. I haven't seen the show you're talking about, but I would imagine the difference would be stark.

Point being, what you saw sells ads better than if Walker Cronkite reported it because it's emotionally charged. All this really kicked into gear with Rush Limbaugh because he was allowed to sit there and just rant for 3 hours and get people riled up. When you consume any news, look for clues that they are trying to get you riled up. Look for emotional words like "obliterated," "destroyed," etc. particularly in the headline (which reporters don't control). News is a business and are bound by the same profit/loss laws as any other business.

"the arena" is a sports talk show that happened to be on in the background after watching the lakers game (in which lebron and his crew won). it's relatively unique in that it's anchored by a black woman (cari champion), but it's squarely a sports opinion show, and incidentally political, for instance, due to the intertwining issue of black folks being disproportionately targeted by police and the legal system.

it's not meant to be fact-rich/low-opinion news, and they make that obvious by not mimicking a news format, unlike many other "news"-like shows, which is entirely acceptable. there is room for a few opinion shows in the mix. but it's the opinion shows disguised as news shows that are insidiously problematic, and that's increasingly all of them.

we're entirely in agreement that the profit motive drives news and news-like organizations in a race to the bottom toward attention-grabbing infotainment rather than staid factual news.

it's almost as if we need to break off high-value, low-engagement news organizations into fully independent non-profits that are funded by a pool of income from the infotainment industry for the right to continue delivering low-value, high-engagement infotainment, rather than intermixing the two.

It just occurred to me that our political news discourse has gotten so bad, it was easy to assume "the arena" could be the name of a news / opinion show, but my mistake.

>it's almost as if we need to break off high-value, low-engagement news organizations into fully independent non-profits that are funded by a pool of income from the infotainment industry for the right to continue delivering low-value, high-engagement infotainment, rather than intermixing the two.

We absolutely do, and I think there is a demand for it, just not sure how it would ever get funded because the investors would always want the higher return the anger-tainment style would bring. I try to focus on individual / independent journalism when available. I'm just starting to (audio)read Woodward's new book, and it seems pretty fair so far. I thought his last book seemed fair also. The difference of the new book is quite stark compared to the media's take on it recently.

I remember early in his presidency, watching a Trump speech. A short while later I saw news coverage on that same speech and it was like they weren't even talking about the same event.

This makes so much sense, I mean Chris Cuomo, Maddow, Brian Williams, CNN, MSNBC, CNBC, doesn't matter - they all use very emotional language to describe things.

I long for the good ole Walter Cronkite news casts. (I didn't mention fox commentators because that's beyond the beyond, they're way worse).

Could you elaborate how fox is worse?

Is this because you disagree politically or because they’re “beyond the beyond, they’re way worse” or whatever thoughtless, meaningless comment Was typed?

Fox News was conceived as and currently is a propaganda network for the Republican Party. Roger Ailes, a Nixon advisor, saw how the media caused the public opinion to really sour during the Watergate scandal and impeachment and he had the foresight to counteract it. He was the first CEO for Fox News, which was funded by Rupert Murdoch, founder of SkyNews in Australia, another network with not the best reputation.

Judy Woodruff, and to a lesser extent Chris Hayes avoid inflammatory language.

Can't echo this enough. It feels over the last decade that we really have lost this. You see so little actual discussion taking place any longer. Everything is rhetoric, it is tiring.

> It feels over the last decade that we really have lost this.

Polarization has been increasing in the US for longer than that. Many of these tendrils stretch all the way back to the founding days of the US, but I think the real uptick of this modern flavor is hate started with Newt Gingrich:


Ralph Reed: toxic as a kid at University of Georgia, still toxic today.

My judgement may not move the conversation any further. I'm too emotionally wound up. I could do without the personal experience of the community which spawned this artificial divide. But then again, it's all I have, so I might as well use the hard lessons as well as the good times.

Never been in the same room as the founder of the (so-called) Christian Coalition. I hope. Grew up in Athens Georgia around that time, it was considered a small town. It wasn't all bad, but it took thousands of miles and decades of years before I could enter a Christian Church without wanting to run away.

It's John McCain's fault.

Not because he was bad - he wasn't. He was an honorable man. So honorable he got rid of earmarks, the allocation of funding to particular projects.

The result of this being that there is very little reason for people to cross the aisle. Previously, you had to keep working with the other party to keep the gravy train on schedule. Now?

For bonus points, ask if the cost of gridlock are higher or lower than the cost of the earmarks.

Disclaimer: this is my perception. Many will disagree and many will downvoted, but I want to put it out there in case it resonates with anyone and generates good, enlightening conversation. I hope people read and respond in the same spirit of good faith.

Perhaps Newt was a catalyst in Washington, but I think the broader cultural change was less related. Even as a lifelong liberal, I recall the 2000s as being a period of liberal snark toward conservatives, especially in the media and on the emerging Internet (I know some will argue that conservative policies are horrible so they deserved to be treated this way, but such arguments miss the point of civility: you debate bad ideas; you don’t attack people). It wasn’t the sort of ruthless display we see today, but it was relentless and it went on for more than a decade. Conservatives generally maintained decorum, but eventually the dam burst and the resentment cascaded over and Trump arrived on the scene to personify the middle finger that many on the right wanted to give to those they felt mistreated them for so long.

None of this is meant to impute blame or innocence on anyone, but to serve as a framework for understanding how we got here as that is prerequisite for getting black to a healthier state.

None of this is controversial or offtopic. Looks like the downvotes just proved your point. Folks don’t even respect a fellow liberal try to engage in a completely reasonable and civil way, forget any hope of them respecting a conservative.

The ironic part is that you allow a partial pass due to bad conservative policies, but during the time period to which you refer, the liberals were anti-gay marriage (DOMA anyone?) and ramming through “tough on crime” laws that they now decry as racist.

The clearest example of this that I have personally experienced was in a discussion a few days ago about the fires in Oregon. A state senator had his house burned down, and my suggestion that we shouldn't be celebrating this guy's misery brought a level of vicious attack I was completely unprepared for.

Like, I get it, it's ironic- he opposed a climate change and wildfire bill and his house burned down. What really scared me though was realizing I don't think the reaction would have been much different if he himself had burned to death in the fire.

Ouch. I have so many complicated thoughts trying to process the implications of that story, which I won’t try to sort out here. People are in denial about this, especially younger people with a fairly narrow view of both history and global politics, but what we are seeing is foreshadowing a civil war, and it’s getting increasingly difficult to see what might avert that outcome. There’s no question in my mind that we haven’t seen the worst of the riots and the violence yet. With the police forces being neutered all over the country, the inevitable response will be federal forces, and I think that is by design. Once that happens, we face a major escalation that will be very hard to unwind. We’ve learned now that these events are not rooted in any principle of justice (despite their clever PR that still appears to be fooling most) which means they can’t actually be avoided. They’re going to continue to capture any event they can to advance. I’m not even sure they realize what they are doing. Honestly, you can see the same ideological possession in so many of the comments in this thread.

Every time the police shoot a black man, unarmed and possibly in the back, there's a huge outpouring from the conservative media about why they deserved it and the police were right to murder them.

That, more than anything else, has contributed to the coarseness of the discourse. Well, that and the 4chanisation of everything. Maybe the right could rein in the "libtard" and "cuck" discourse a bit too? Oh, and the death threats that prominent women get.


That’s not the case at all. There is an attempt to explain why the shooting was justified, and it nearly always is justified, which is an important analysis. It’s not as though there is a pattern of unarmed killings.

> It’s not as though there is a pattern of unarmed killings.

There's at least one a month that makes international news? And several thousand demonstrators in the streets for hundreds of days that think they're not justified? And it turns out that the police lie about events unless there's footage, and sometimes even then?

Here's the latest one: https://www.dailystar.co.uk/news/latest-news/police-shooting...

One a month spread around different individuals in the country with over 700,000 cops and a total of over 50 million interactions a year, which includes dealing with all of the violent criminals who usually don’t want to go to go willingly and are often armed, then yes, one a month is incredibly low and indicates that this isn’t a pattern.

Even basic statistics knowledge should make this obvious.

It doesn’t matter that people are rioting. It turns out they routinely lie about events until there is footage too. Crowds riot about dumb/wrong things all the time. Sports games come to mind.

You just linked to an example where a wanted violent criminal was reported to police for violating a restraining order against a woman he previously allegedly raped, who then disregarded the cops orders, decided to fight with them and put them in a headlock, refused to comply again after being shot with tasers, refused to comply again when the gun was drawn, and instead reached for a deadly weapon while in lethal striking distance of an officer. I think you proved my point, not yours.


The underlying deeper point is that you are assuming you, or your point of view is good, and perfect, and his is bad. And because he made a mistake he should have his house burned down (and should die).

What you are missing is that you also make mistakes as a human being, and when you have terrible consequences of that happen, it might be nice if people on some opposite side of a political spectrum don’t laugh at you about it and say you deserved it, but stay quiet because they also know they are fallible and make mistakes.

I am truly shocked you are ok with someone dying because of some mistaken political point of view. This tbh has no place in a supposedly civil place like HN (or America? Or the world??)

Not only that, but there is no evidence that the fires had anything to do with climate change. You can not attribute individual events to climate change. There is also an argument that they were as bad as they are due to poor forest management.

I am a liberal as well and had a similar perception and that bothered me a bit. But, as fair as I want to be I couldn't help but notice the Republicans always favored the irrational, the fearmongering, and their discourse wasn't simply the other side of things but crooked perverted politics. Maybe the liberal snark was a reaction in the first place. And what we're witnessing now is the reaction to that reaction.

“Republicans always”

This is the language and thought pattern that is the problem. It is not okay to use this kind of language.

I'd wager you're getting voted down for "conservatives generally mainted decorum" in the decade after the Clinton impeachment, which included wars in Iraq and Afghanistan, Fox News's rise to prominence, the Drudge Report setting the 24/7 alarmist tone that still domiantes online political content, McConnell growing into his now trademark do-nothing leadership, Ann Coulter moving from print to TV and showing everyone else that going weirder and crueler wins now. Hell, Orrin Hatch was literally censured _by Senate Republicans_ in the 2000s for how quickly he dropped his frenemy decorum with Democrats, especially Ted Kennedy.

The 2000s were absolutely not a decade of decorum, for conservatives or anyone in politics. The 2004 election was a massive turning point toward where we are today, and the 2008 election meltdown culminated the Republican party turning itself inside out in ways Gingrich really did directly catalyze a decade and a half prior.

We wound up with the Tea Party at the end of the 2000s and American political discourse went from an already slippery slope to a freefall.

As a New England liberal going back generations, for me it was very clear: conservatives were not simply wrong, but bafflingly, astoundingly, inconceivably wrong. The only logical explanation was that as individuals they were misguided: either evil, or dumb, or maybe just crazy.

I didn't understand this at the time, but everything I saw or read supported this worldview. Newspapers, magazines, schools, academics. Since I was left of them generally, I thought the world was too conservative. When conservatives complained about the mainstream media, it was always in context of mainstream journalists mocking them. For me, I saw it as conservatives mocking their extremists.

Fast forward to today, and I cannot imagine how frustrating it must have been to be a conservative then. That idea, that conservatives are bad, evil or crazy, was pervasive and all encompassing and smug.

Nowadays, for me, it's not about agreeing, but about listening. Hearing what people actually say rather than what a journalist says they say is quite enlightening.

“ Fast forward to today, and I cannot imagine how frustrating it must have been to be a conservative then. That idea, that conservatives are bad, evil or crazy, was pervasive and all encompassing and smug.”

I think this explains a big chunk of the Trump vote. Many voters saw in him someone who would not take the smug mockery without a fight.


It's also why there is such a disconnect with respect to the Russian collusion allegations. To those inclined to trust the mainstream media, it is a settled question: of course Trump colluded, and anyone who can't see that is crazy, evil or dumb.

Those who feel misrepresented by the mainstream media, don't see how that allegation isn't just more of the same egregious lying they have experienced first-hand for decades

It is such a wide gap in outlook

Yes, the Russia collusion thing was particularly egregious. It turns out that it wasn’t just the media, but also trusted Federal bureaucrats who were willing to abuse their office for political gain. The media completely discredited themselves by supporting a largely false narrative, and yet they never really came clean about it, and many who furthered that narrative are still working in the media.

I hope that one day the US can come to agree on the facts. But many situations seem to be like Scott Adams says: two people watch the same movie and see two different narratives.

I mean... weren't they?

Look at where it's got them - conspiracy theories about pedophile pizza parlours. I'm struggling to frame the events of the last two decades as "the story of how we realized that conservatives were reasonable people after all".

We tend to be biased towards those we identify with and against those we disagree with, and this will color how we receive and interpret facts themselves, nevermimd simple opinion

Ongoimg anti-racist riots for example: are they a long overdue correction to a deeply flawed and misguided nation that oppresses a large fraction of its own citizens? Or are they a symptom of post-modernist moral relativism run amok, whereby political leaders have abandoned their responsibility to maintain public safety and order? Or perhaps they are a minor local dust up, blown out of proportion by a greedy, cynical media? Perhaps some combination of those?

If one skews left, one will be inclined to dismiss the concerns of the right as unreasonable, perhaps even hypocritical. Do that habitually enough, and conservatives will come off as entirely out of touch; and so will you, to them.

I recommend really striving to understand the point of view of your political opponents, not by reading leftist think-pieces about what the right thinks for example, but reading reasonable presentations of conservative arguments. So, more National Review and less Breitbart, for example. Less focus on "qanon pedo-pizza" who are the black block anarchists of the right, and more on people who makes sense even if you ultimately disagree.

As a lefty, I feel those of us breaking for the Green Party are treated the exact same way. In a way our ideas aren't validated even in the party we called home, so we're leaving for greener pastures.

Great point upvoted for balance. Remember those Dubya cartoons, even before he became a war criminal.

Your thesis is that conservatives "lost their cool" and elected someone clearly unfit for office in 2016 because... George W Bush got made fun of a lot until 2008?

I'm sorry, but I just don't think this is a helpful or accurate framework. Liberals spent 8 years snarking about conservatives because Bush was president, doing all his Bushy things. What about the following 8 years, when Obama was president? Can you specify at what point exactly you think conservatives lost their sense of decorum?

It started with Goldwater, with Nixon and then Gingrich being two major milestones as it developed.

Specifically Newt around Vince Foster's death. You can trace the roots of a lot, a _lot_, of today's utter partisan obstructionism and foolishness — mainstreaming fringe conspiracy theories with the explicit and openly espoused purpose of wedging the other party regardless of its goals — to Gingrich making Vince Foster's death an unending headline news story.

I mean christ, Trump _still_ brings up Vince Foster.

I think this might collapse at the edge cases: If I'm a black man and the opinion is that I'm an animal, and the person with the opinion uses this reasoning to abuse me, then I may be ethically correct to not listen or keep myself in their presence.

Or, say, I'm a disabled person and someone tells me they think social services should be cut so people like me can die off for the good of humanity. It may be actively emotionally harmful for marginalized people to be listening to toxic opinions that they are worth nothing.

(EDIT: To be clear I think listening to opinions I disagree with in good faith is a good thing that we need more of in society. However, I also believe marginalized voices are, by sake of being marginalized, are forced to engage in a significantly higher volume of significantly more emotionally taxing opinions, and therefore may need to protect themselves, and that isn't wrong.)

It's easy to come up with these kinds of excuses for not tolerating the opinions of people you disagree with. If you disagree with me about abortion, you are either trying to murder babies (and hence I shouldn't have to be civil to you) or you're trying to control women's bodies (and hence I shouldn't have to be civil with you). If you disagree with me about health care reform, that's a life and death issue and hence I shouldn't have to be civil with you. If we disagree about a military intervention, that's a life and death issue and I shouldn't have to be civil with you.

Justice Ginsburg and Justice Scalia disagreed on just about all of these issues and got along fine. I don't think that's because they didn't care about their respective principles and about the issues that were at stake. I think it's because, as a point of fact, we have to live in a society with each other regardless of our differences. And most of those differences are genuinely rooted in good or at least understandable intentions in the first place.

There's a factor not considered here: to what extent were Scalia & Ginsberg able to get along because of other material conditions?

As supreme court justices we can assume that they had a basic foundation of psychological and material security - a position of prestige, a job for life, healthcare and so on.

I believe it is a lot easier to summon the "higher thoughts" necessary to be civil when ones personal position is more secure, so to achieve a more civil society it may help to work to make more insecure people secure.

I enjoy John Cleese’s speech making the same point ( https://youtu.be/wXCkxlqFd90 ).

This is amazing. Thanks.


If I believed in one true (God/Truth/...) why I do not kill you all/crusade into/suppress all/burn you in stake/ Spanish ...

It is so hard to accept others and let them articulate their view.

Because a lot of times those others want to remove liberties from me or from people I care about, like women or non-straight people.

I think this is an easy handwave to ignore that some people get more disagreement than others about whether or not they deserve civil rights, life, etc. While you espouse a need to listen, you’re not really listening at all here or even trying to understand what is being said.

It's not a handwave and it's not even remotely easy. If it were easy, it wouldn't have taken centuries of bloodshed for humanity to develop the basic concept of peacefully tolerating disagreements over fundamental values.

> It's not a handwave and it's not even remotely easy. If it were easy, it wouldn't have taken centuries of bloodshed for humanity to develop the basic concept of peacefully tolerating disagreements over fundamental values.

As a general principle, sure.


I don't think it is reasonable to expect anyone to peacefully[0] tolerate fundamental values that fundamentally challenge their right to exist.

We may admire genuine saintliness, but expecting it (and taking people to task when they don't measure up) is a bridge too far.

You may have the right to say that you think I and my extended family should be exterminated, but I damn well have the right to — at the very least — get in your face about it.

After all, the solution to bad speech is more speech, right?

[0] Note that one can be non-violent without being peaceful.

I don’t think you need to be friends with people who explicitly and literally advocate for genocide. If you are just making that point to introduce that particular nuance for the sake of completeness, I think I can agree with everything you said.

My reservation is that most of the time this kind of argument is made, it’s because someone wants to take the most extreme cases and use them to construct some dubiously over-generalized argument. For instance, over a hundred years ago the Supreme Court themselves did this, notoriously stating “but certainly there isn’t the freedom of speech to shout ‘fire’ in a crowded theater!” and then using that to construct an argument to justify throwing someone into prison for distributing pamphlets about resisting the draft.

In the here and now, there is a far bigger problem with people taking normal political disagreements and catastrophizing them into excuses to break friendships and disown family members than there is with people literally advocating for genocide.

> My reservation is that most of the time this kind of argument is made, it’s because someone wants to take the most extreme cases and use them to construct some dubiously over-generalized argument.

This is literally the opposite of the original claim which is to try and understand where people are coming from and to listen to them as if they’re reasonable actors. You are doing the exact shit you’re accusing others of- assuming bad faith in their intentions and arguing against the bad faith intentions in a discussion about how to take good faith intent in arguments.

I’m certainly trying not to do that. Did you read the first paragraph of my comment? I think that’s what you’re trying to do, though.

If you are not trying to do that then why even bring it up as a concern you have? Why ask if I read the first paragraph and not assume in good faith I read the whole post and respond to relevant portions I have a response to, just like any other reasonable human being?

> If you are not trying to do that then why even bring it up as a concern you have?

Because webmaven's comment was slightly ambiguous. While I don't think he meant to imply the specific connotations that I have concerns with, this is a public forum where it's possible that the audience could certainly infer those connotations, which makes it relevant to address them. Especially because it's a central part to the issues that we're discussing.

I tried to be conscientious about this and went out of my way to strongly imply that I didn't think webmaven meant to imply these connotations. Note, for instance, how I transition from using the second-person pronoun in the first paragraph ("If you are just making that point...to introduce nuance...", "I think I can agree with everything you said") to the passive voice and third person in the second paragraph ("most of the time this kind of argument is made", "someone wants to take the most extreme edge cases"). Maybe I should have been more clear about it, but that's what I was going for.

> Why ask if I read the first paragraph and not assume in good faith I read the whole post and respond to relevant portions I have a response to, just like any other reasonable human being?

You have contributed nothing to the discussion other than to make personal accusations that I am "not really listening at all here" or "doing the exact shit you’re accusing others of". In that light, I am assuming good faith by assuming that you're sinking to that level not because you're a troll or a jerk, but because you're genuinely misunderstanding me. That's why I asked if you read the first paragraph--because I thought that if you understood what I was trying to convey with it and read the rest of my comment with it in context, that would clear up your misunderstanding. Apparently that wasn't enough. I hope this comment is.

Millenia, not centuries. Living in relative peace is a novel and stunning development in world history.

I really don't think that's objectively true. The "relative peace" is quite relative after all, depending a lot on where you live, and at best it's less than a century old (75 years since the end of WWII). I think there have been many other societies that have passed an occasional century or so in relative peace throughout history. It's just that the wars are more prominent in the history books than the boring peaceful years between them.

I'm not saying we haven't achieved anything... wide-spread recognition of basic human rights, near abolishment of slavery, valuing democracy and self-determination have all been taking to new heights over the last few generations. But at the moment all this is looking pretty fragile.

And personally, RBG's death today left me feeling more than ever that we're on a knife's edge, and that we could fall right back into those millennia-old patterns that are only occasionally interrupted by a century or so of "relative peace". Or worse.

And I'm not even an American nor live in the US!

Classical liberalism/the open society/the Enlightenment all came about centuries before WWII. There were wars (WWII included) fought against people who explicitly rejected these principles, but coming up with those principles in the first place was the part I was referring to.

If someone is expressing a good-faith opinion then you shouldn't write them off just because you disagree. Of course, "good faith" is a subjective judgement.

Over time I've come to realize that usually there's a legitimate reason why someone believes what they do. Often they are either optimizing for different things, or view the matter differently.

If listening to someone's opinion is actively causing emotional harm, then sure, don't listen to them. But I worry very much about the rise in offense-taking. Perhaps it's an illusion but I've felt it's become incredibly difficult to talk to people with different [political, etc] opinions than my own: not because of me, but because of their attitude towards dissent.

> If listening to someone's opinion is actively causing emotional harm, then sure, don't listen to them.

I think that might be the most important time to listen to them. If merely hearing an opinion threatens your model, that’s probably a warning sign indicating that your own ideas are fragile and unsustainable, and they need to be exposed to ideas that challenge them. Engage with painful ideas, break your own models down and reformulate them into something more robust. I think the unwillingness to do this is what leads to the problems you mention.

I’m reminded of “The Coddling of the American Mind”

> If merely hearing an opinion threatens your model, that’s probably a warning sign indicating that your own ideas are fragile and unsustainable, and they need to be exposed to ideas that challenge them.

This doesn't strike me as a universal truth. It's good as a general principle to test your ideas against ones that challenge them and make sure they're as robust as possible -- but if that "challenging idea" is "your group has no right to exist," then it's not reasonable to argue "if merely hearing that you have no right to exist threatens your model, that's a warning sign that your own ideas are fragile and unsustainable," is it?

So, my own philosophy is 100% listen to them, I don’t believe in closing off my mind due to fear of “emotional harm” etc.

My point was more like, if person X really does feel that way, then sure they can retract themselves from discussion. But they should do so knowing it’s their own failing/weakness and not blame it on the other person being “toxic”.

I agree it has become difficult to talk to people with different political opinions than my own. I just think the statement suggested was logically too strong, and entirely non applicable in very important failure modes. There are often legitimate reasons why someone believes what they do, but sometimes the belief is "I think there should be no consequences to murdering someone like you, because you're not worth the social resources you take with your disability", which was a belief expressed to me, and I need to protect myself emotionally from people who genuinely believe I should be dead.

I have no idea what your point it, but you may want to add one more example. Let's say I am a Trump supporter and the opinion is that I am a scum and should die before the election, then it may be ethically correct not keep myself in their presence.

I mean, honestly, yes, if someone wishes your death I don't know if it is healthy to expose yourself continually to their opinions that you should die. That's emotional abuse.

> If I'm a black man and the opinion is that I'm an animal

That’s not the opinion though. That’s exactly what the parent is referring to. You need to listen, understand, and empathize before assuming that people who don’t agree with you must be racist.

But with the internet much more of what you do is visible and more people know about it. What you said could be attacked with "white silence is violence"

I had a much longer response typed - but deleted it when it stopped even making sense to me.

"white silence is violence"


Still no idea how that could be applied to my post - but I am most definitely white, and after a bit of introspection, can't think of anything I've constructively done to address racism outside of late-night internet posts.

So whilst I'd like to think I was "non-racist" - I do now feel a bit shitty that I entertain the cognitive-dissonance of being "anti-racist" and "not having ever done anything that was anti-racist"

Then if I cookie-cutter myself out to everybody else - I now see how racism flourishes, whilst the majority tut-tuts.

Was that your point?

Here's the line of thinking:

The idea is that ineffectual discourse without actual efforts towards reform is a method of signalling that one wants change while benefiting from the status quo of oppression.

Discussion is great, but the discussion is supposed to result in change, not a vortex of words which have no connection to reality.

When people advocate for lofty civility above all else when the status quo is violent, aggressive, demeaning and unjust, it shows that the priority is not justice; it is the maintenance of the current order.

Is this position accurate? I don't know. There's obviously countervailing concerns regarding having a chilling effect on the market of ideas, but like all tough questions, it's likely a difficult situation with no clear cut answer and two virtues being traded-off against each other. This seems to be borne out by the fairly dramatic spectrum of positions adopted on the issue across the globe.

No, the statement is nonsensical abusive rhetoric. Silence is literally not violence. It substitutes an argument that stands on its merits with a rather shameful and racist manipulation technique that is unfortunately quite effective, as evidenced by your apparent guilt. You obviously did nothing wrong. When racism flourishes is when we allow phrases like that to enter the discourse.

Did he do nothing wrong? If I see a child being beaten in the street, look at it and say "that's horrible" and continue with my day, have I done nothing wrong? I certainly didn't beat the child, but my inaction allowed the abuse to continue.

So question comes down to, did I have the moral obligation to act?

Personally I lean towards yes, but can at least understand where the people who say no might be coming from.

While I agree that silence is violence at its face is literally false, that's the general principal it's meant to invoke, that injustice can only be stopped when bystanders cease to tolerate it. The victim cannot stop it, and the perpetrator won't. Thus those who tut tut and move on with their day become complicit in allowing it to continue.

That is what the commenter is feeling vaguely guilty about, and it's a healthy thing to feel. I know I have guilt in my past where I have failed to help someone when I had the opportunity, and that guilt that comes from recognition of that has driven me to be less of a bystander later in life.

What you’re talking about has nothing to do with what I said and is an extremely important distinction. Serious allegations should not be made casually with artistic license to bend the truth. If you witness a beating and do not intervene, then no, you did not commit an act of violence.

You could debate what the morally correct thing is or isn’t if you want, but you can’t debate that you committed an act of violence.

This seems like a debate over semantics to me. Silence doesn't mean violence, but silence can enable violence or be worse than violence if the consequence of staying silent are worse than those of violence: http://www.openculture.com/2016/03/edmund-burkeon-in-action....

This — suspension of judgement long enough to engage in genuine introspection, followed by a return to the conversation with humility — is something we so rarely see, and each need to engage in more.

Kudos to you for leading by example.

I am so not a good example of anything.

But genuinely do appreciate your reply - makes that little voice in my head feel "less alone"

What was interesting/depressing was my "how about a creed" post was getting a few up-votes, then the moment I replied below saying maybe I was a "crap anti-rascist", my OP started to get down-votes.

Text hadn't changed, but by putting some context around it, it was read differently.

Very consistently I’ve found engaging with replies to your own comment will get the original (even high ranking comment) downvoted.

It could be just a reflexive thing to seeing a given username show up too often. I wouldn’t presume it was any deeper than that.

I think it's more than that.

In my OP I very deliberately stuck to abstracts that I'd hoped "nobody could disagree with".

And nobody seemed to - until I put more words beneath it.

You're right though - engaging with your own posts is perceived as negative. People read the platitude and hit 'like' - the more you put beneath it, the greater the opportunity for something to annoy somebody (and scroll up to try to kill the thread)

I'm sorry I wasn't clear in my reply which was short and poorly written considering how it has a very powerful phrase. I'm not implying your post was racist but was responding to the quote you provided:

We may not agree but I will always listen to you. I will always consider your opinion with respect and will endeavor to understand your reasoning. My views are not set - my goal is to listen to arguments to come to an informed position, I can honestly take forward

I was trying to explain that because the internet has increased the visibility of ones opinions to a global scale, and a recent increase in the use of both public shaming as well as punitive financial measures (fired from job, boycott) it could be dangerous to opine about anything.

> I entertain the cognitive-dissonance of being "anti-racist" and "not having ever done anything that was anti-racist"

The systems and histories in place we battle with are much bigger, and much older, than we are. Unless your explicit goal is to set out to change the world (which frankly is a shitty goal and usually leads to some kind of genocide), literally the best advice is "think globally, act locally", as "outdated" as that saying I suppose now is.

Except that it is especially true when what you want is positive social change. Think about the implications of someone who first implements your initial original post ("just stop and think for a sec"), and then also implements your second ("is there anything I can do here?"). That's enough. Literally that, when applied on a large scale, would change the world, in a way far more positive than riots and social justice movements.

See, humans are really terrible creatures. We have a bad habit of overcorrecting and, you know, killing millions of people in the name of an ideal. We've done it what, dozens (hundreds? thousands?) of times.

It's the difference between water carving a river, and a nuke carving a crater. The first one takes longer but is alot less destructive.

Woah - I'd love to change the world (and why wouldn't you?)

Then I lost your thread.

Then I agreed with you, "we're terrible"

Imagine what a planet full of people all changing the world would look like. Absolute, unabashed chaos. We all love to think we are the hero of our own story, but we aren't, and most of the time, shouldn't be.

We should do what we can do, what fate and hard work have placed in front of us.

"Change the world" as a cause in and of itself has killed far too many people to be considered a valid goal. We all believe our vision for the world is the right or best one, except it seems we're actually pretty bad at forcing the world to look like us.

You were berating yourself for believing in anti-racism, while not actually physically doing anything about it. My point was this: These are not contradictory things, and don't let emotional blackmailers convince you otherwise. You do what is in front of you to do, and only that. If there's not actually anything in front of you to do, that's it. Is there or isn't there? That's 100% up to you. I can't say there is or there isn't. But it is important to question even the statement that there is something to do because otherwise you get caught in a Kafka trap of never actually living in a just world (tilting at smaller and smaller windmills until you're swinging at air).

Speech isn't violence. Lack of speech isn't violence. People lazily regurgitate these postmodernist bumper sticker phrases and consider themselves informed activists.

I would politely disagree (and happy to talk about it)


I think speech can definitely lead to violence - and speech can also counteract it. Neither directly, but the delta has real-world repercussions.

Or to look at it the other way - can you come up with an example of violence, that wasn't preceded by rhetoric?

> speech can definitely lead to violence - and speech can also counteract it

I don't disagree with you on that. We can say "A can lead to B" and "A can counteract B".

I'm lost at the leap to "A is B" and "NOT(A) by COLOR = B".

I could speak or not speak, and even do so out of negligence or spite. My choices may have effects and consequences, but violence does not mean "anything with effects and consequences".

It feels too much like the missing piece is "this is what we say the word means now, QED". It's all too convenient that a conversation can be shut down by calling it violence. Implicating people is divisive. By it's own logic, redefining violence to include speech is itself a form of violent speech because it causes conflict.

Speech is most definitely capable of being violence. Just ask most anyone who was bullied as a child.

"Maybe there's some sort of new "non-denominational creed" we could all sign up for"

That's me! I'm in that creed.

People associating their identity with their politics is when trouble starts. That's when it becomes really threatening for them to even consider alternate perspectives, because if they change their mind, they will change who they are and who they can be friends with.

It's possible to separate the two, whereby an idea on how society should be organized is just that: an idea, to be considered, adopted, discussed, and abandoned as new information becomes available.

One really poisonous idea I see circulating is "either you are for <some thing> or you are a <bad person>" Either you support riots or you are a fascist Either you punch Nazis or you are one Related, just as terrible, "Time for discussion is over. If you're on the fence at this point, you are <bad person>" These kinds of memes increase polarization, and stop discussion. A person who says something like that can no longer have a calm exchange of ideas with their grandma

I think you hit it right on the head. What I'm wondering now is: What leads to this association of politics and identity? Is it a product of our culture, upbringing, is it human nature? Is it that modern life has so little avenue for people individuating? Maybe it is filling a void.

One thing that strikes me as key to this polarization is how pervasive are some generalizations we make today and how the individual is lost when we make them. I've seen racists make the comment "Black people are ...." (won't repeat that here) but then I see activist say "Black people are (ex. disadvantaged.)" Are there no quite privileged black people? (millionaires, billionaires, etc) Don't lower class people face a pretty similar set of challenges no matter their skin tone? When you look at it, both arguments are generalizing equally as aggressive. My question then is: are all generalizations wrong or only some?

I think this process of grouping people has ome currents of thought tend to generalize two aspects to it, people who group other people when making statements and people who in some search of uniqueness, group themselves into it? As a non-American, coming from a very heterogeneous country I find it hard to follow how many people will self-identify so readily with a group and in the process lose some of their individuality. Maybe I speak from "privilege" as someone who due to upbringing and origin, felt a quite distinct individual, so I cannot say for sure. I just think this currents of thought harm more by dividing into groups and with many individuals satisfying their need of identity there.

Personally, I think the US in particular is prone to this kind of thinking because the winner-take-all system incentives a dualistic, all-in approach. Thoughtful reflection does not win elections: riling up the rank and file does, including demonizing the opponent. More parliamentary, proportional systems encourage cooperation and collaboration among opponents

As for generalizations, the English language has an unfortunate construction that allows speakers to be ambiguous about their intent when making a generalizing statement. For example, "Men are violent" is a misleadingly meaningless statement. Does it refer to some men? To all men? Is it referring to the fact that men tend to be more violent, statistically, as a group? That assertion is ambiguous, but the always-truthful qualification "some" sits uncomfortably close to the always-unfair and bigoted "all". Bigots of all stripes rely on this ambiguity.

I don't think generalizations are bad necessarily, but to honor the dignity and diversity of individuals, it's vital to avoid this ambiguity, and to always be explicit about the generalization that you're making, and then your statement can be evaluated for what it is, pro or con. E.g. Instead of a Men are violent say what is meant, clearly: Some men are violent. In general men are violent. Most men are violent. All men are violent. Now at least we have a statement that can be agreed with or disputed, instead of motte-and-baileyed

Good leadership involves the sort of thinking where you are prepared to listen to a diverse set of opinions and be prepared to change your mind - especially if there is data that tells you you are wrong.

The political discourse across the globe has taken a sharp turn away from this over the last 40 years in particular. There was a brief window between the end of the Cold War and 9/11 where many had hope this was going to be the new normal. I remember feeling that sliver of optimism as I entered adulthood. No more.

Vote for people who are called "flip-floppers", by their opponents. Change your own opinions when the data changes. Be the change you want to see.

I’m probably gonna do it. I’m not sure I could do the other thing... if the world burns, at least I burn in her camp. I’m ok with that. I’m excited you might be there too!

If people are willing to die for the cause then conversation or listening is not going to accomplish anything.

I’m afraid you do not understand the fire with which you are playing.

offers a marshmallow

I think my problem with statements like this, is that while I can totally imagine the liberals I know taking this viewpoint, there are very few conservatives I know that do. The response will be something like:

“Why would I listen to these whiners? I already know what I want.”

That type of response may result more from lack of education than from political ideology. Where I live, there are a fair amount of educated liberals and conservatives. I run into liberals and conservatives alike who give a similar response to what you listed; I also run into liberals and conservatives alike who have wonderful conversations about politics without getting riled up. From my observations, there doesn't seem to be a correlation with political ideology.

I'm curious to know how frequently you have encountered one of your liberal friends debating with an educated conservative. Likewise, I'm curious to know how frequently you've encountered one of your conservative friends debating with an educated liberal. Over the past couple of years, I've run into a number of people who simply couldn't believe that an educated liberal/conservative existed, primarily because they grew up in an area where there weren't many people with differing political views. It's a dangerous trap to fall into, because it allows you to categorize the other political party based on only the rhetoric of elected officials and on the interpretation from media. I have yet to meet a conservative or progressive who matches the caricature of either portrayed by politicians or entertainers.

All the educated conservatives I’ve met have been pleasant people. It’s just that the far majority have not been educated (as opposed to liberals, which seem to be pretty much all educated, to the point where I feel education and liberalism might as well be the same thing :/).

Yeah, the reality is that "listening and respecting the opinions of people whom you disagree with" (or not) is an ideology in its own right.

One would hope that it'd be orthogonal to conservatism/liberalism or any other political spectrum, but I suspect it's not.

In some respects it is, it’s just correlated I’d say.

That kind of collaboration can’t exist if there are two sides who believe that most issues are zero sum.

I have no evidence for the following statement, but as someone who grew up just before social media was a thing (I became a legal adult about a decade before Facebook), I truly feel that the zero-sum thinking, while present before social media, really took on a new form because of it. It is much more vehement than before. You don't get the same kind of interaction on a forum or a bulletin board that you do on Twitter or FB or [modern social network].

When I was growing up, there was no Fox News channel nor any of the cable news channels (I remember when MSNBC was a brand new thing). News was something you watched for 1 hour in the evening.

24 hours news + trench digging/tribalism have done a horrible number on modern discourse.

Thing is, I think that that's because before, there WAS no discourse, not really. It was slower. Most of the conversation was had by those you watched on TV. Alot fewer people participated. The internet DID democratize that, with frankly predictable results.

Not saying we should have done differently but I do think we need to come to terms with what that means (e.g. realizing it's forcing us into zero-sum thinking and consciously choosing something else).

I'm close to your age I think.

Don't forget that well before Fox News there was a AM radio, and Rush Limbaugh was national in the 80's. I definitely remember how his talking point impacted my high school's debate team's rhetoric.

Agree that zero-sum thinking is a net-negative.

Since the parent link is to an NPR piece, here's NPR's coverage of Ginsburg's memorial tribute to Scalia: https://www.npr.org/2016/02/15/466848775/scalia-ginsburg-ope...

I'll also link a video of her eulogy to Scalia: https://www.youtube.com/watch?v=jb_2GgE564A

The relationship between RBG and Scalia served as inspiration for one of the most beloved post-Sorkin episodes of The West Wing. The Supremes, 5x17.

For all the crap the non-Sorkin episodes get, that episode should be in the Hall of Fame for TV. Both the script and acting are of the highest caliber.

Seems like that sort of thing is becoming rarer every day. RIP Ruth and Antonin.

She also worked well with and has been complementary of Justice Roberts.

I thought that was remarkable in a positive sense as well

It's so weird to see what inspires centrists.

What do you mean?

I wonder how friendly they would have been if Scalia had managed to overturn abortion.

I mean they both seemed to have good sportsmanship. Is life not but a game?

Having been poor once and now being not-poor, this mentality of life being a game comes from a position of security. When I was poor, it wasn't a game but a struggle and a significant source of stress. If I thought of it as a game, it seemed rigged.

Now that I feel secure, I can see where you're coming from when you call it a game though.

A thoroughly uninformed or malicious comment

Lol. Why are you downvoted here? It’s like some people want to constantly paint the world like the end of a Disney movie where it turns out every character was really good deep down inside.

inspirational? it was her greatest weakness, there was not any other single judge working harder against her

I'm not going for the nazi reference, he wasn't that evil but Scalia was literally trying to drag the United States back to the 1950s if not even further, decision after decision he never found an expanding right he didn't want to slaughter

Although the justices being friends is inevitable, it is not desirable. The justices would be more representative of the people - and probably dispense better justice - if there was an uneasy compromise between them based on basic principles of precedent and law.

That isn't a very fun vision of life on the bench - and any system is imperfect - so I don't really advocate that. But the idea that these people are asserting their preferences over 300 million people and then getting all chummy in their spare time isn't a good thing. It is unavoidable though.

It's quite possible to be friends who have strong, contrasting opinions. I'd argue the oppose that it is a desirable state for highly powerful people making decisions for the whole country because you're less likely be blinded by mindless us-vs them and give the benefit of the doubt the arguments and beliefs contrary to yours.

The inability to disagree in a mature way is why we have such a mess of identity politics, name calling and all sorts of division in many counties IMO.

This is true, but it depends on the topic. If I have a very strong opinion about the ineffectiveness of the Laffer curve when setting tax policy, I can probably be pretty good friends with somebody who believes the opposite. But I think it probably is important that we don't remain friends with people who deny other people's essential humanity, or who support political policies that have no effect other than to hurt people, and so on. Just because an opinion can be described as political doesn't mean that it's automatically coequal with others, and we don't have an obligation of deference.

Daryl Davis has converted a lot of KKK members away from racism by risking his life to befriend them.


How many people have you seen converted from dangerous beliefs by isolating them away from dissimilar thinkers?

Davis is a brilliant man that understands something about humans that far too many people don’t. He came to that understanding by engaging and asking questions.

This strategy single handedly abolished more KKK members than anything else. Contrast to the extremists of today like BLM who are having the opposite effect and pushing more people to racism. We’re going backwards. Then again, it’s not like BLM is actually motivated by their clever branding, so this is unsurprising.

> This strategy single handedly abolished more KKK members than anything else.

Obviously this is not true.

OP's claim is quite bold and they did not offer evidence. I would describe it as 'unsubstantiated'.

To correctly say it is untrue, you must show another strategy actually converted at least hundreds of KKK members (perhaps more, as it's possible people beyond just Daryl got results from this strategy).

That's a nice story and I'm sure he's a great guy but it's not an effective policy at the macro scale and that's what matters.

You seem pretty confident, why do you think it would not work at macro scale? If you are saying that empathy doesn’t scale, that’s a pretty dark view that requires some evidence.

Are people born racist? Does education an outreach not work? I really don’t see why you’d be so certain.

Daryl's approach works, at least for him. I suspect others can learn to do it, too.

I have seen no evidence whatsoever that refusing to interact with people deradicalizes them. The filter bubble phenomenon suggests the opposite.

I'll take a strategy that's known to work with unclear scalability over a scalable one with no evidence it works, every time.

I don't really care so much about the individual voter, I care about how far their voice reaches on the Internet, I care about the people they influence, I care about their children, I care about higher-level things.

I don't understand how that relates to what I said.

Would you mind explaining further?

What do you think is a more effective way to deradicalize white nationalists as measured on a societal level: engaging them on the merits of their arguments and having a good-faith debate, or deplatforming them?

I missed your response days ago, but happened to see it just now scrolling through my comment history.

It seems obvious to me that deplatforming them will further radicalize them. It fits perfectly into their narrative as I understand it.

Engaging them as (deeply flawed, very wrong) humans and having a good-faith debate seems to have worked shockingly well for Daryl. I suspect it could for others, too (though Daryl is obviously a rare breed).

building personal relationships with individuals in order to deradicalize them one by one is not a viable strategy at the macro level. It's efficacy is irrelevant to me.

How is it not viable? If every person who went to a BLM protest also made friends with one police officer, don't you think that might be extremely effective?

Haha, obviously not?

Begging the question is not going to convince people you're right.

I'm not really begging the question, because I'm not trying to convince anyone that a general policy of individual empathetic outreach isn't effective at a macro scale. For one thing, it's self-evident, and I'm not really interested in "debating" anyone who would challenge that. For another thing, it's a tangent from the main point of the thread.

When has it ever been tried at the macro scale?

Republicans and moderates are not denying anyone’s humanity, nor do they support political policies that have no other effect than to hurt people. Nobody does. Arriving at that conclusion should tell you loud and clear that your model is incomplete and you don’t understand your opponent.

Republicans in 2020 are absolutely and inarguably doing those things.

Every vote for that party in our zeitgeist is motivated in no small part by active malignancy. It's the defining characteristic of their leader, unavoidable and undeniable, and as of the convention the party literally has no platform except to serve and support his whims. So there is absolutely a right and a wrong side to things right now.

Absolutely and inarguably? A vote for a Republican is a vote for "active malignancy"? How could anyone even approach a conversation with you about this? Isn't this the exact opposite of RBG and Scalia's friendship, which is the actual topic of this comment thread?

That's the whole point: I'm not interested in a "conversation" on the topic because there isn't one to be had.

Friendship is an even stronger signal of tacit endorsement and there are situations, positions where it's inappropriate, even morally unjustifiable, to deploy. Scalia would certainly qualify for me.

Are you talking about the party that spent decades motivating turnout by making their base hate gay people? They denied the humanity of gay people, fought to deny them basic human rights and all for what? Just to cynically win elections?

If you didn’t know this or chose to ignore it, your model is incomplete and you don’t understand one side.

Remind me who voted for DOMA? You need to study a little history.

You're not acting in good faith here, and it's both obvious and hilarious. You respond to someone summarizing decades of malignant propagandizing with, literally, a Whataboutism dredging up a single minor procedural issue, out of context, from like 23 years ago, and pretend that single disingenuous statement disarms the thing it's responding to. This is -- you are -- exactly what I'm talking about.

"Democrats aren't people anymore as far as I'm concerned"

"It's time to stop arresting these filth only to have them released the next day and start just putting them down"

--seen literally yesterday in a popular politics IRC chatroom, to general agreement. I think many people don't entirely realize how bad it's gotten.

Republicans are absolutely working to roll back legal protections for the LGBT community and have been engaged in a decades-long fight to reduce women's access to health care.

They're also fully in support of the immigration policies that have led to things like the very well-documented child separation.

In what ways are those not denying someone's humanity?

First, those are lies. Second, in no way is that denying humanity.

I think you are wrong. The mutual respect that grows out of friendship makes it easier to consider the other side of an argumen more seriously. And if there is one thing that is needed now it is more common ground being sought - not less.

The idea that one ought not fraternize with those who disagree with one’s opinion is unproductive and leads to unnecessary division and ultimately a weaker system. Ultimately it is a brutish and uncivilized idea.

I wish your post wasn’t downvoted. Bad ideas require discussion to be understood. And they can’t be discussed if they are removed from discourse.

I upvoted (hopefully to preserve the OP) but don't think "It's a bad idea"

If anybody from ycombinator is reading - it seems insane what a post can be down-voted into grey and then the void, whilst it has active commentary beneath it.

"Posts" can have a status applied to them, but the far more important thing is the "thread" where different views collide.

Pulling posts, breaks the thread.

I agree that it's a shame when unpopular but reasonable and well-stated posts attract a lot of downvotes. Even if you assume that most such positions will be wrong, some won't be, and if they all get downvoted to oblivion, it encourages group-think.

No, it’s a beautiful thing. The country would be far better off if we treated each other this way. In many other countries, this is the norm. Maybe you can learn something from your elders.

In what democratic country is this the case nowadays? I‘ve lived in a buch of places in Europe and have friends in many more. The divide might not be as pronounced as in the US but it‘s certainly there.

Using me as an anecdotal example, I have acquaintances and a few (loose) friends that are fiscally conservative. I have exactly zero (known) acquaintances or friends that are conservative/regressive with regards to social issues. After all I‘ve seen and experienced in my life I just cannot emphasize with someone that can justify denying women health care or discriminate against race or sexual orientation, for example.

I suppose you could start solving these entrenchments by having millions of desert islands in order to force small groups of people with diametrically opposed viewpoints to endure hardships on them.

On the internet there is no chance. Without seeing the actual person and talking with them for hours it wouldn‘t work. The problem with this method is that it‘s terribly inefficient.

What we need is a sort of enlightened six sense for empathy that makes large groups of people feel the state of mind of other large groups. But barring large scale psychedelic treatments I don‘t see that happening.

No, being friends with contrasting opinions can be a good thing. Once in a while the guard slips off and one can see in the other's yard. Whoever's story has more flaws is likely to suffer a slight change in perception if not a downright 180 turn.

Who hurt you? Why discount their friendship? I'd say it would make little difference with people of the caliber of RBG or Scalia.

Are you trying to say that you don't believe in integrity?

Sure. And they hopefully do their best. But it sits in tension with friendship. That is why there are all sorts of principles against it for high-integrity systems.

Well, props for sticking with a truly unpopular opinion.

I’d like to change your mind one day though. My friendship with Scott was instructive here. He was a former HN mod. I looked to him as a mentor and a friend, though I’m not sure it went both ways. Regardless, we worked together on Lumen for years. When I was banned for a year from HN, he never once allowed our friendship (such as it was) to affect his duty to the site. The decision wasn’t his, and he wasn’t going to pull strings internally just because we occasionally wrote code together.

I get what you’re saying. And I agree that in the long term, it’s extremely important to set up incentive structures in the right way. But friendship — a word quite hard to define, if you think about it — is a part of the human experience.

The point here is that there are people with integrity. They do exist. And they can be friends regardless of other duties — sometimes unpleasant ones.

Now, my little story isn’t quite related. I wasn’t an adversarial peer, which is what you’re talking about. But your reasoning seems to be: if the incentive structure permits friendship, it compromises integrity. It’s a reasonable concern, especially over the course of decades. But the word “professional” reflects the fact that business comes before friendship.

It’s a fundamental truth that people will try to form friendships regardless of their occupation. Rather than change the incentive structure, as you propose, shouldn’t we recognize that truth?

The reason I related to your comment so much is, for a time, I felt exactly the same way: if business was any indication, it was a web of insider deals, “friendships”, and favors behind closed doors. I wanted nothing to do with that world. But two people with integrity can sidestep all of those concerns and simply... be friends. Even in the highest court of the land, which determines our fate.

(As a sidenote, you seem like an interesting person. If you happen to want a friend, or to debate hypothetical political structures, feel free to DM me on Twitter.)

>The point here is that there are people with integrity. They do exist. And they can be friends regardless of other duties — sometimes unpleasant ones.

Sure. There are fantastic individuals out there.

The key to fair systems is to structure the system in such a way that does not rely on the recruitment of extraordinary individuals who are filled to the brim with integrity.

The key is to create a system of checks and balances that disallows obvious unfairness by means of liability isolation and personal separation, etc.

I'm glad your friendship with whoever Scott is worked out despite whatever problems on HN, but all the example tells me is that Scott (and to a smaller degree, yourself) have some level of personal integrity; but facts and statistics generally say that systems that can be gamed, will be -- and that's without a motivating factor other than a personal win; include motivation like money and power and the scales tip much more radically against those with integrity.

For every 'Scott' there are 10 folks without any integrity that'd have gladly re-instantiated their friends' accounts that had been banned AS LONG AS it didn't mean hurting their own position.

That's exactly why 'fair' systems are generally built in such an isolated fashion so as to reduce inclusion of bias and personal feelings.

If we can't find people of integrity for the Supreme Court, the Republic is lost regardless of the official policies.

Exactly! Which is why this conversation is so interesting – and why it seemed they were unfairly downvoted. The question of "does friendship compromise integrity of systems over time?" is quite fascinating, and there are many examples across many countries that show "yes, yes it does." So it seemed entirely legitimate to say that perhaps a system should penalize friendships, somehow.

But, after watching Scalia, how can you not like him?



He was witty, charming, and a master orator. So when people hear "can't have a friendship with Scalia, even though you work with him," it's kind of like "can't breathe, even though you're human." It's a logical contradiction. And it's not even a well-defined problem: what is a "friendship," anyway?

> The question of "does friendship compromise integrity of systems over time?" is quite fascinating, and there are many examples across many countries that show "yes, yes it does."

I think this is probably true in legislative bodies and in government agencies - for the same reason: both promote deal making because there's something to be gained.

One of the reasons the SC Justices are seated for life is precisely to blunt that effect. They can be friends without needing to make deals because they really don't get anything out of a deal - and one hopes they fully appreciate the gravity of their position.

The Court is a sort of unique entity in that it doesn't need (I don't think) to be confrontational in order to be effective. It is the one place where one would think, true wisdom reigns. And by and large, that is what I see from SCOTUS' decisions.

It's a sign of an intelligent, mature mind to be able to contain contradictory ideas without losing your identity. Being friends with someone on the other side of the political aisle, in a group as small as the supreme court, I would think has the effect of improving the quality of their deliberations and little else.

How can I not like him? Real easily, turns out! Scalia wanted to deny basic human dignities to people I care about. Scalia perpetuated a system that grinds your everyday citizen into the dirt because it made his moneyed interests a speck wealthier. To hell with that, and worse words besides.

A competent rhetorician is only "hard to hate" when you don't look at what they do. Keeping one's eye on the ball is not that difficult when you have a set of principles.

You should watch that second youtube link. His whole point was that judges shouldn't be in a position to deny anyone anything. It's a policy preference, and should not be left to seven unelected judges.

If you disagree with that, I suppose we'll have to agree to disagree. It was sort of incredible that Scalia basically straight-up says "You gave me the power to decide whether abortion is permitted nationwide? Really? Who thought this was a good idea?" (Not an actual quote; the talk is quite good.)

Apparently it wasn't always so, and Scalia explains the history too. The concept of the constitution as a "living document" was manufactured, along with the idea that morals mature over time. "Societies only mature, they never rot! /s"

What you're talking about is a matter of business. There are certainly some individuals that it would be quite difficult to be friends with in spite of what they've done. But if Scalia is one of them, well... Everyone has their preferences, I guess.

I am entirely already familiar with Scalia's approach to jurisprudence. I spent most of my youth thinking it was just such a great idea. I also grew up affluent, white, male, and cis; to no surprise, these are contributing factors. Having since grown up and built for myself some facility for basic human empathy I do disagree with that, because not everyone can pick up states and leave Alabama or whatever because their judiciary decides that they can stuff gay kids in conversion therapy or can relegate abortions to back alleys. It privileges me to have such a society because I can go wherever the hell I want because I have money.

Antonin Scalia's entire worldview was built because he knew he was a rear-guard for regressive thought and maybe, just maybe, a broken country with an impotent federal government could allow people like him to continue to kick the shit out of the weak a little longer. He was never going to get to punish women with an abortion ban (and today, would never get to fuck over trans people) nationally--so the natural outgrowth of this is to punish women and fuck of trans people where they can. All in the name of "letting people choose", so they can choose to vote on the basic humanity of others.

I reject the idea that one can "be friends" with the people who want to bring the long dark back. They will break civil society on the anvil of a supremacism that exists to benefit me, and I refuse it.

It not because you can isolate your friendship from duty that other people can do the same.

What may seem natural for you isn't for others.

Thus system are designed considering that.

This is the most insane comment I've read in a long time, no offense to you personally. Being friends is orthogonal, and should be orthogonal to one's judgement and their duty as a judge.

The entire world would be a better place if they do not follow the argument presented here.

You're not going to like the rest of the American political and justice system. The entire process is based on purposefully creating opposing and disagreeable forces.

The whole thing was clearly created on a principle of opposing friendships between powerful forces.

The Supreme Court is not just another legislative branch.

But that being said, have you seen how many decisions are 5-4? Or 6-3, 7-2? It does not appear that whatever friendship that existed between Scalia and Ginsburg impacted their rulings and dissents on the matters before the Court.

It's completely possible—and I say preferable—to hold starkly contrasting political or legal views, but still like one another. We need more of that. It's how we stay one cohesive nation, instead of warring factions.

Here's the complete breakdown for the most recent term: https://www.scotusblog.com/wp-content/uploads/2020/07/Merits...

  36% 9-0
  10% 8-1
  20% 7-2
  11% 6-3
  23% 5-4
(Note that this is a somewhat unusual year, as several cases were pushed from the previous term to the next term due to COVID-19--and the cases not pushed were so selected because they had more urgency, which generally means more contentious).

Most cases tend to be unanimous or nearly so (0-1 dissenters), and only about ⅓ of cases are contentious (5-4/6-3/5-3). This has been decently stable over the past few decades.

That jibes with my impression of the decisions I’ve seen. You and a sibling comment are giving me these stats and I’m not sure if that’s to refute or support my point? 1/3 of decisions being split like that is quite a bit. 1/3 being unanimous is also significant.

I guess my point is that their friendship didn’t seem to have impaired either justice’s ability to do their job with faith to their respective judicial philosophies.

gybes ?

I get confused with all the sailing terms in common vernacular, but generally the sayings go

"I like the cut of your jib"

"That gybes well with me"

Noting that none of them make sense, I think leeway is possibly the worst

In this case, "jibes" is correct[1] and is not a borrowed nautical term. In this context "jibes with" means "agrees with".

[1] https://www.merriam-webster.com/dictionary/jibe

You made me look it up, and it turns out I was using it correctly. But it's funny, because I had originally written "jives", then second-guessed myself and changed it to "jibes."

I had never seen the "gybes" spelling before. Is it like tire/tyre? Looks Welsh to me!

"since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases"

-Washington Post

This is likely due to law getting far more specific over the decades, with less room for interpretation.

Having followed a lot of the recent SCOTUS cases, I can say that if you think the law is leaving less room for interpretation nowadays, you are sorely mistaken. Look up the "Armed Career Criminal Act"--it's an example of what seems like it ought to be a simple matter of interpretation (look! it defines "violent felon"!) into a headache (okay, the person has to have committed a crime whose state-level common-law interpretation in 1984 had to have required at least this much force, and I'm sure I'm still missing some details there).

It's completely possible—and I say preferable—to hold starkly contrasting political or legal views

SC justices are appointed for life for the very reason to help ensure they are not political but instead apply the standards of legality.

It's not perfect, but it's less politics than when people campaign for constant election/re-election to a position.

>It's completely possible—and I say preferable—to hold starkly contrasting political or legal views, but still like one another. We need more of that.


The system is confrontational; it's shaped this way so as to reduce the chance of buddy-buddy underdealings and negotiation.

The system is confrontational so as to promote fairness and prevent bias.

Creating yet another environment by which the judges can exert control over the law by winning personal favors among each other must be avoided. That's exactly why things are set up such way within the US government, Supreme Court not-withstanding.

All that said : I have never considered the supreme court to be fair and unbiased. Compromising for the sake of cooperation, sure. Effective, definitely.

> It does not appear that whatever friendship that existed between Scalia and Ginsburg impacted their rulings and dissents on the matters before the Court.

You'd never really know. That's why it should probably be well avoided.

You seem to be conflating political/Facebook "Friend"ship with respecting and accepting a fellow human being.

Your argument seems beside the point. Confrontation does not preclude friendship.

> It's completely possible—and I say preferable—to hold starkly contrasting political or legal views, but still like one another. We need more of that. It's how we stay one cohesive nation, instead of warring factions.

This works as long as both sides are acting in good faith, and everyone involved (i.e. everyone in a society) is on more or less equal footing. If either of those conditions don't exist, fixing them is more important than maintaining the civil discourse. That's true for many reasons, and one important reason is that in those situations, insisting on the equality of reasonable political positions with unreasonable ones is an effective defense of the status quo, which makes the problems harder to fix.

Neither of these conditions exist in the USA right now, for the record.

Possible, yes. Preferable, sure. Most likely outcome, no.

The Supreme Court isn't a coffee club. The justices being on their toes and constantly being challenged by opposing ideas will lead to better outcomes. Friendship is a process of synchronisation, it sits in opposition to the best outcome for the system.

And yes, I pay a lot of attention to Supreme Court decisions.

Friendship is the process of learning about and recognizing the value of a human being that usually leads to a greater comprehension of that persons life and views not a synchronizing of those views.

A true friendship is not necessarily based on mutually-beneficial backroom deals. A sound friendship would have each party seeking to uphold and maintain the integrity of one another. To do otherwise is to reveal that it is not friendship, but rather opportunism, cronyism, or convenience - none of which have the stability or moral foundation of true friendship.

I don't think this is true. In the past people have reached across the aisle to compromise and collaborate successfully.

If your position is right, doesn't that contradict the continued existence of the United States? What's "United" about the US if it breaks down into a bunch of hostile warring tribes?

> According to her granddaughter Clara Spera, Ginsburg said, “My most fervent wish is that I will not be replaced until a new president is installed.”


There would seem to be precedent for this now.

Justice Antonin Scalia died in February of 2016, a replacement was nominated in March of 2016, and because Scalia's seat had become vacant during an election year, the Senate would not even consider a nomination from the president [0].

[0] https://en.wikipedia.org/wiki/Merrick_Garland_Supreme_Court_...

McConnell immediately clarified his position was "the Senate shouldn't consider a nomination in an election year if it's controlled by my party and the president isn't in my party" -- no kidding, this was his actual clarification.

That is, in fact, the actual practice. The constitution splits the appointment between the presidency and the senate. When the same party controls both, vacancies are filled immediately. Otherwise, the party controlling the senate can exercise its heckler’s veto: https://www.nationalreview.com/2020/08/history-is-on-the-sid...

What happened with Garland had happened numerous times before:

> In short: There have been ten vacancies resulting in a presidential election-year or post-election nomination when the president and Senate were from opposite parties. In six of the ten cases, a nomination was made before Election Day. Only one of those, Chief Justice Melville Fuller’s nomination by Grover Cleveland in 1888, was confirmed before the election.

By contrast, if Trump doesn’t put up a nominee, it will be literally unprecedented.

What happened with Garland was new in that the Republicans refused to hold any hearing or vote on the matter. They did not violate any laws with their refusal, only norms. I don’t know why no nominations were made before Election Day in 4/10 cases; that may have been another lesser norm, or the vacancies may have been closer to the elections, or both.

In any case, the refusal was a further erosion of any semblance of working towards the good of the country with people of opposing ideologies. The same goes for the increased frequency of government shutdown threats and occurrences.

Really, if those practices had stood for so long on norms, they should have been codified into law already. But the Congress, regardless of party, doesn’t like to cede any power. It’s equally unlikely that if the Democrats take control they’ll do anything about it either. I’m vague on what it would entail—it’s been a while since I read up on it—but another hurdle might be that it would take an amendment rather than a law. Regulating what the Congress does is explicitly harder than making laws for the rest of us.

Congress can't meaningfully restrict its own actions by passing laws: any law passed can be repealed by a future Congress by the same procedure as long as there are majorities.

Which isn't to say that there's no point in purporting to do so: you may hope to require a politically costly public vote (avoidance of which was a significant feature of the Garland no-hearing: with nobody else "on the record," outrage focused solely on the politically-safe McConnell). How effective this is isn't really clear though: voters seem to usually want "their side" to take full, uncompromising advantage when they are on top, and increased polarization means that the fear of alienating independents/moderates isn't as much of an issue, because there aren't any of them left.

Rules and procedures such as the filibuster are weaker still, as they require only a majority of a single house, and no cooperation from the President. We've seen that borne out as the parties out of power became more likely to use the Senate's procedures to stall the party in power, and the fairly quick recent dismantling of those procedures in a bipartisan fashion.

Constitutional amendments can do all sorts of things and their high barriers to passage make them solidly entrenched, but it's very difficult to imagine any issue commanding the necessary supermajorities to pass an amendment on any subject in today's America.

As for Democrats or Republicans in power after the election curbing this kind of partisanship, I wouldn't bet on it. There may be some pushes to try to codify

The link does not support your claim (or its own). The Senate did not consider and reject Merrick Garland, it refused to consider any Supreme Court nominee by Obama.

Of course, I'm splitting hairs between "refused to consider" and "voted against". But it's similarly splitting hairs to say that the party of the president makes meaningful difference as well.

Frankly, there's no good faith interpretation of McConnell's stance here as anything other than (ab)using his power to shape the judiciary.

> But it's similarly splitting hairs to say that the party of the president makes meaningful difference as well.

Of course it does! The Constitution splits the nomination/confirmation process between two political branches. The process is supposed to be political!

You have really insightful legal comments here most of the time but anyone supporting Mitch's 100% hypocritical stance on this is laughable.

He will do whatever it takes to hold on to his minority power. He did it with Obama and has already hinted ~2 hours after RBG died he'll happily do a 180 on his previous position this time around when he has the chance.

It’s absolutely hypocritical, and if the Democrats has been in the same position they’d do the exact same thing.

Maybe they would, and maybe they wouldn't - time will tell.

But the argument that "it's OK for us to do it, because they would" seems a bit thin.

It's OK to loot this store because if I don't someone else will...

And it's OK to do anything I like as long as I can point a finger and say "but he'd do it too"

So, yeah, this is a textbook case of hipocrasy, but being hipocratic doesn't matter as long as we win.

In this situation in 2020, I agree, they would. In 2016? I don’t see the reasoning that they would have.

The reality of the situation is that in the US one party constantly pushes boundaries and test limits. The other party then adjusts to attempt to counteract that. Yet it’s sold as “both sides are just as bad as each other”

Democrats literally threatened to pack the Supreme Court so they could get expansive interpretations of the Constitution to push through the new deal. They are constantly attacking structural features of our government and institutions, whether it’s chipping away at federalism or creating fourth branches of government out of whole cloth.

> Democrats literally threatened to pack the Supreme Court so they could get expansive interpretations of the Constitution to push through the new deal. They are constantly attacking structural features of our government and institutions ...

Court expansion hasn't happened yet, but if it does:

1. Them's the rules; sauce for the goose, sauce for the gander. (Or: Live by the rules, die by the rules.) (Or: Karma's a bitch, ain't it?)

2. What you call the "structural features of our government and institutions" are meant to serve the people, not vice versa. It's idolatry to put those features on a pedestal and declare them to be immutable. Presuming adequate protection of genuine minority rights, it's not illegitimate for a democratically-elected government to use lawful means to try to restructure existing institutions in pursuit of the majority's felt political needs.

The fact that you have to go back nearly 100 years to come up with an example kind of proves my point.

This is complete nonsense. Your comments on this subject seem to be 100% ideological not based in reality unlike most of your other grounded legal arguments on other subjects.

I’m curious which parties you’re referring to. Conservatives are called that literally because they want to conserve something from the past.

In this case, the left is marching forward with all sorts of new policies—often ostensibly to deal with a societal problem, but causing more problems because the policy does not derive from first principles.

They wouldn't, because they never would have blocked a GOP nominee in the first place for 293 days.

> The Constitution splits the nomination/confirmation process between two political branches. The process is supposed to be political!

The founders explicitly said that they didn't intend the system to be partisan, and indeed warned against the dangers of partisanship.

Of course they themselves formed parties a few years later. They weren't as wise as everyone seems to think.

The power is split across branches, not political parties. And I think you're forgetting that Senators are elected in by the people.

I see a common irrational theme of "let's change the rules because they didn't work out in my favor this time". I don't understand the logic behind this.

Senators originally (prior to 1914) were not directly elected by their constituents... the founders set up the Senate to be the more "responsible" "Upper House"and were set to represent the interests of each state and appointed by each state's democratically elected Governor. The intention of senators having longer terms (6 years vs 2 years for House members) in addition to being appointed by each state's Governor and state legislature was so Senators would not be as directly affected by electoral politics and would be forced to actually work together. I think the 17th Amendment to the Constitution was in retrospect a pretty horrible decision that has not added much democratic value to our system.

Well look at how governors have been handling the pandemic. Most of them seem completely one sided in terms of their response, unwilling to compromise and stretching the limits of their power. There isn't a "let's see how it's working and adapt based on new information" mindset, it's a "my way or the highway" mindset. For example, I live in PA and our governor's orders were recently found to be unconstitutional[1].

If anything, governors should have less power, not more. Decisions should be made on a smaller scale, states are too big for a one-size-fits-all model. And I certainly wouldn't want governors hand picking our senators.

[1] - https://www.breitbart.com/politics/2020/09/14/pennsylvania-j...

Unsurprising, given the judge who found the orders unconstitutional was a Trump appointee. The past three and a half years Republicans have spent packing the courts seriously hurts the credibility of the legislative branch.

As an aside, Breitbart is one of the least trustworthy sources, and citing it does not help your argument.

Do you think the orders aren't unconstitutional?

Details on why you don't like the judge and which media outlet I referenced (i honestly just googled the story and grabbed the first one I saw) digresses from my point. And fyi once you digress from the main topic and shift to sub-aspects (without actually addressing the main point), it usually means you're arguing in bad faith, or your cognitive dissonance is kicking in. It's a mechanism used by closed-minded and stubborn people...Food for thought.

I'm not digressing from your point, I'm directly rebutting it. You claimed that your governor is abusing his power, offering as a supporting argument a ruling that his orders are unconstitutional by an ostensibly neutral third party. I'm attacking your supporting argument by calling the neutrality of that third party into question.

My own opinion is that the orders are constitutional.

> I see a common irrational theme of "let's change the rules because they didn't work out in my favor this time".

IMO they didn't work out in anyone's favor. Our country is a mess, and the majority of people dislike both of the 2 major ruling parties.

Branch, not party. Executive and Legislative.

> Branch, not party.

I can read. I was referring to "The process is supposed to be political!" And by political, the implication is partisan, because otherwise it would be true by definition, and thus an uninteresting claim not worthy of ending in an exclamation point.

Political doesn’t mean partisan. It means characterized by political considerations, rather than rules. Partisanship is one aspect of politics which the founders wanted to avoid. But they always contemplated that the Senate majority and Presidency might disagree for political reasons.

Sure — and if the Mitch McConnell's objection to Merrick Garland's nomination had been political, it would have been one thing. But it was nakedly partisan: he refused to consider any justice that Obama would nominate, with no real reasoning beyond "we want a Republican to have a chance to fill this vacancy".

> they always contemplated that the Senate majority and Presidency might disagree for political reasons.

They did. The danger to the country is actually when they agree.

What happened here is that the Senate refused to compromise, and simply put the government in a holding pattern until they could get a more "agreeable" executive in office. Is that the way separation of powers was intended to work? I think not.

The National Review became dishonest propaganda some time ago. They are going back 150 years to find a precedent and ignoring many more recent precedents.


Explain to me what’s “dishonest propaganda” about the National Review article?

1) Going back to the 1800s is routine in the legal world to understand what is accepted practice in our system. After all, the relevant rules haven’t changed since 1789. Aren’t examples from people who created this system particularly relevant to understanding how it’s supposed to work?

2) The SCOTUSblog article goes through the exact same examples as the National Review article for the 20th century. The only difference is that the National Review article looks at whether different parties control the Presidency/Senate. What is “propaganda” about that? The Senate and Presidency are political branches that are supposed to be at odds, potentially. Is there any reason to assert that this political rivalry shouldn’t extend to Supreme Court appointments? Is it “propaganda” to even posit the idea?

The article I posted also looked at what parties controlled the Senate and Presidency and quoted more recent precedents where the parties were split, and the president got to appoint.

Moreover, stopping a vote entirely? That's unprecedented. Had there been a vote on Garland, he almost certainly would have been appointed. Many of the moderate Republicans in the senate, facing elections, would not have been able to justify voting him down to their constituents.

For the National Review to leave those pieces out is dishonest. I'm also not just referring to that article. The National Review has been dishonest propaganda for a while, making dishonest arguments that manipulate the facts (usually by omission or careful selections as here, but occasionally outright lying) to justify the actions of what has become a fascist party.

The National Review has been nothing short of reactionary propaganda from its outset. They vehemently opposed the Civil Rights Movement in its era, including running unsigned editorials with such lovely sentiments as “In the Deep South the Negroes are, by comparison with the Whites, retarded”


Democrats were literally the party of segregation when Buckley wrote that (there would have been no New Deal coalition without the support of segregationists). He was vastly out of step with Republicans at the time, and he did a 180 by 1965, the year after LBJ flipped the Democratic Party on the civil rights act. It’s a shameful period of American history, but unless you’re going to stop voting Democrat over what some Democrats said in 1957...

I’m not a Democrat and we weren’t talking about voting anyway. And these are the kind of sentiments Buckley continued on with after 1965, so please spare me the “different times”’pleading:

> In a 1986 New York Times op-ed (3/18/86), Buckley urged that ‘everyone detected with AIDS should be tattooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.”


Can we please stop talking about "precedent" when the last time was over 150 years ago?

For some perspective, there were only 31 states at the time.

The proper response to this cynical argument is to pack the court.

How is it “cynical” to point out that where a split senate/presidency exists in an election year, the senate has historically used its confirmation authority to postpone filling the vacancy?

And the response is to demand something that actually would be unprecedented: packing the senate? Which only Democrats have done before, under circumstances where it was obviously to coerce the Supreme Court into deciding cases differently. Acting like Democrats hold the moral high ground here is utterly absurd.

If the Democrats don't hold the moral high ground, why is McConnell lying about his rationale? He didn't say "The majority can do what ever it wants, and that's moral", he made up rationales that change to as the facts do.

The idea that a Supreme Court opening should never be filled when the President and Senate are opposing parties is utterly absurd.

It's true that the Constitution wasn't written like Ethereum to preclude all attempts to undermine it with bullshittery like refusing to even put matters up to a vote. That doesn't mean it's at all moral to ignore it.

Also, was "Packing the Senate" a typo? FDR threatened but did not pack the Court. "Packing the Senate" is a Republican tradition (not that the parties mean much consistently, going back centuries), which even a blatant partisan couldn't avoid admitting:


And slaveholders (the spiritual inspiration of modern Republicans) had manipulated the Court to themselves since the beginning: https://en.wikipedia.org/wiki/Judicial_Circuits_Act


Yes, segregationists were Democrats during the New Deal, but so what? The parent described slaveholders as "the spiritual inspiration of modern Republicans," and we both know what they meant: the "Southern Strategy" Republicans used to flip the South toward them by consciously appealing to racism.

The point is that the parent takes an extremely tenuous connection between Republicans and slaveholders, while denying the much more overt connection between Democrats and slaveholders and segregationists.

There is this notion that the parties "flipped" sometime in the mid 1960s that's simply false. Republicans were from the inception the party of religious wackadoodles and capitalists. Democrats, at least since right before the civil war, were the party opposed to big business, banks, etc. The segregationists weren't just Democrats. They were New Dealers. They were New Dealers because the south was agrarian and at odds with big business (over tariffs) and banks (over monetary policy and debt). When Wallace broke off in 1968 to run on a segregationist ticket, he touted his pro-labor background. And as a result of that coalition, the New Deal and related programs were inextricably tied up with segregation: excluding most Black people from social security, creating redlining through the FHA, etc. See: https://jacobinmag.com/2019/06/rothstein-segregation-color-o... ("Walker’s second point overlooks that the New Deal did not merely concede to private bigotry but pursued independent racial policies that did much to create a segregated landscape that persists today.")

The South didn't really flip until Clinton. (Reagan won it, but he won everything.) Carter decisively won a bunch of southern counties that were 95% white. And ultimately it did so not because of the "southern strategy" but because southern states industrialized, and Republican ideas of low regulation and low taxes were great for attracting jobs and industries from northern states.

Sophistry laid bare for all to see.

There are a number of highly concerning posts you've made attempting to normalize a flagrant attack on the rule of law across this thread, but this post in particular is extremely difficult to reconcile with the principle of charity.

What "charitable" reading is there of the statement that "slaveholders are the spiritual inspiration for modern Republicans?" I'm simply pointing out that slaveholders and segregationists are the actual ancestors of modern Democrats. Not just because they share a name, but for concrete economic connections that endure to this day. Southern agrarian interests were opposed to the high tariffs Republicans imposed to protect northern industry (because they were exporters of unfinished commodities), and centralized banking (because they debtors). White labor unions excluded Black workers, who were competition.

Sophistry is overlooking by handwaving about the "Southern Strategy."

No. Sophistry is ignoring 50 years of post-Nixon/Goldwater era Republican political strategy.

It's tremendously difficult to believe someone could live in the states and not have any idea this was going on.

Even former RNC chair Melhman was fairly straight to the point on the issue in 2005: "Some Republicans gave up on winning the African American vote, looking the other way or trying to benefit politically from racial polarization." Nothing has changed since then.

Any Democrat who accepts a lecture about the "moral high ground" on the subject of the Supreme Court is the Republicans' useful idiot.

The Roberts Court disenfranchised millions of Democratic voters by gutting the Civil Rights Act. The fight over the Supreme Court's composition is a fight over pure electoral power.

It shouldn't be this way, but it is.

So if norms don't matter (as you, McConnel, and Trump seem to argue), the Democrats ought to pack the court, no?

"the senate has historically" means that is literally the "norms"

There are lots of things to argue but that isn't one of them.

So would you be ok if Republicans won this election and then packed the Supreme Court?

No. I would not be happy about it. But I fully expect them to do it. There are no longer norms. Screw the country. It is every man for himself.

The republicans had the opportunity to do it, and haven’t...

Why would they need to pack the court? They already have a political majority, do they not? No need to break a norm when it confers no additional benefits (as the breaking of the previous norms did).

They didn’t have majority until recently, and according to Vox and many left leaning sites, they’ve voted quite liberally since.

Further, there’s this: https://thehill.com/regulation/454463-ginsburg-dismisses-cou...

The Republicans don't generally vote as a bloc on most things. And many of them hate the President as much as the Democrats do.

For the record I was refuting the person above me. I don’t think they’d pack the court.

I don't think either side would actually do it. It's a political talking point, but it's just a bridge too far.

I totally concur. Double the seats on the bench.

> the party controlling the senate can exercise its heckler’s veto

I'm trying to think of a plausible vehicle for arguing that if the Senate refuses to vote on a nomination within a reasonable time, then that refusal (i) constitutes a waiver of the right to withhold consent and therefore (ii) is deemed consent.


(Not saying you're wrong. If I repeat something, I like to have direct sources)


He’s basically that the partisan makeup of the Senate as of the most recent election should be the controlling factor.

It has the veneer of a neutral rule, and that’s all they need.

you forgot "and is after 1890" since he is ignoring the contradictory cases before then.

At least he's honest about it.

Honest at least.

And he just cited the position Joseph Biden asserted in 1992, no kidding: https://www.nytimes.com/2016/02/23/us/politics/joe-biden-arg...

June 1992, quite a bit ways past February.

There's always another election coming up.

So we are in agreement. Trump should not appoint.

Biden didn’t just suggest the idea, he was also citing historical practice!

Biden's speech was just saying that the nomination shouldn't happen during an election. I don't think he ever said it couldn't happen during a lame duck session of the Senate.

Let’s be clear. A lame duck is one that has been shot, is still in flight, but is headed down. In politics, it refers to after a sitting representative loses an election (or term limit ends) but before before the term ends.

Obama was not a lame duck when Scalia died. McConnell et al redefined the term to suit their needs. As they will no doubt redefine it now.

He was just saying that the nomination should not happen during an election year and then he expands that he won't consider conservative nominees from the conservative i.e. different party president. It's just 4 minute video of several speech fragments, does not take long to watch and be informed.

I don't know that in the current political climate, the democrats would extend the same courtesy if it happened under their control of the Senate and White House.

Lately I see a lot of people saying things like “this particular example of real behavior is bad and conflicts with my values so should be electorally punished, but my mental model of the other side tells me that they would probably do the same thing if they hypothetically got the opportunity, and so I’m not going to uphold my values.”

I’m surprised that most people in america didn’t see this coming. It’s been clear that “winning” has been the strategy for the republicans and they’ve been doing it consistently for decades now.

They’ve shown up at elections, they’ve shown up for local elections, they’ve worked for every single advantage in power they could get. I mean these are the chaps who suffered a massive electoral defeat to Obama the first time and found their mettle by saying “one term president” like a mantra. They converted that into a fight for every micro meter.

Eventually anyone m would also realize that “winning” (at all costs) is the strategy that works and adopt it. The best strategies get adopted by market players.

The media environment for the past many decades now ensures that bipartisanship won’t work either.

Maybe it’s an incorrect cultural reading on my part,

I don’t disagree with your characterisation, but I do disagree with the idea that it is republicans alone. Unfortunately this has been the way both parties have operated for a long time. The democrats have also done their fair share of abuse of power just in the last 4 years.

Sure, i don’t doubt there’s work on the Dem side when it comes to abuse of power.

>in the last 4 years

I’m talking 30 years. The last 4 years are just end results of other forces.

Also - america has never produced an event like the trump presidency. Does that feature when we discuss abuse of power in the last 4 years?

I know of no Democrat action that is comparable.

The use by Obama of the FBI to investigate his political opponent during a presidential campaign, on a basis of an improbable opposition research report is unprecedented and to say the least, controversial. Imagine the outrage if any republican president had done that.

Not saying this is only the last 4 years. I agree, at least 30 years. But no, it is not the action of a single party.

Was there any indication this was Obama directing the FBI to behave this way, or that this was an established pattern of behavior? There’s a very important difference between a mistake or an error in judgement vs an established pattern of behavior and engagement of illicit behavior by the president himself (as with Trump offering a pardon to Assange to deny ties to Russia in the DNC hack after failing to have Ukraine fallaciously smear Biden).

"You can't prove it" isn't a terribly convincing defense.

Making insinuations and accusations without any kind of evidence is even less convincing, no?

Sure, but the argument that the Senate shouldn't approve or even consider a Supreme Court nomination in election years because voters should have a voice was made by Mitch McConnell, at a time when not approving a presidential nominee suited him.

I don't think anybody can argue in good faith that it is equally incumbent upon the Democrats to act in a manner consistent with principles argued for and precedents set by Mitch McConnell.

I don’t think anyone could argue that the democrats are acting in good faith pushing for delay now while having pushed for expedition in 2016. Both parties want to shape the supreme court.

I am more annoyed by the fact that the supreme court has become a political arena. Making laws should be the responsibility of the elected legislator. A court, any court, should merely arbitrate on the conformity of legal disputes to these laws. If they acted that way, no one would really care who gets nominated to the supreme court. It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.

I see the same power grab happening in Europe and am equally worried about it. No power should be given without accountability.

>while having pushed for expedition in 2016.

That's a weird way of saying "nominated a candidate via the regular process".

Nominating a candidate now is also the regular process.

Yes, that's true. But it's important to note that Republicans deviated from this process 4 years ago and will now just resume business as usual while being a lot closer to the actual election than in 2016.

> If they acted that way, no one would really care who gets nominated to the supreme court.

How could this be done? Political issues are in front of the court every day and minute. This makes it immensely political. How could then those mere arbitrators be non-political?

It was always political. It will always be.

> It is because the supreme court has taken the habit of ruling on matters that should be left to the legislator and effectively to make new laws that it has become a bitter fight for nominations.

Uhm. You know this is also something that has been going on forever, especially in every "common law" system.

Possibly refuse to rule. In France they introduced a mechanism to throw the ball back to the parliament.

They do that too, a lot in fact. Most of the cases that request a certiorari are denied.


And in the majority of those cases the SC does only instruct the lower court on that specific case, refraining from creating new law as much as possible.

France is a "civil law" country. Courts there cannot "make new laws", they can only invalidate them. (And as far as I know this applies in general to all civil law countries.)

> France is a "civil law" country. Courts there cannot "make new laws", they can only invalidate them. (And as far as I know this applies in general to all civil law countries.)

The German Supreme Court has, on two occasions, declared new constitutional rights: the right to informational self-determination (when deliberating a census process law) and the right to integrity of data processing systems (when outlaying voting computers). I don't know if that counts though since technically they argued that other constitutional rights implied these rights (but weren't mentioned explicitly because the German Basic Law was drafted in 1949).

Well, clearly both parties seem to have expectations that the court will rule on controversial matters like abortion. The fact that it also declines to examine many other cases doesn’t really change that.

Sure, and controversial laws were submitted for constitutional review everywhere around the world (where there are constitutional courts). And picking judges was always a political thing. Just as picking the top prosecutor. And so on.

What's so surprising about that? It's not so much a "rule" as a statement of political fact. Now that Supreme Court has become a de facto legislative body, no nominee has a chance of getting through when the presidency and Senate are not controlled by the same party.

The reality is that if we had a Democratic President and Senate, nobody on the left would be arguing that we have to hold off until the election. Chuck Schumer would no doubt be insisting that the Senate "do [its] job", as he did in 2016. [1]

It's hard to fault McConnell for doing precisely what he was elected to do -- confirm conservative judges and justices.

[1] https://twitter.com/SenSchumer/status/701953299268902912

If you think McConnell has a shred of honor or cares one whiff about not being a hypocrite I have a bridge to sell you.

If you think McConnell has a monopoly on hypocrisy I have a bridge to sell you as well. McConnell took both sides of the argument (delay when convenient, expedite when convenient), the democrats opposed him on both occasions. If this was a moral discussion, then both parties are equally guilty of hypocrisy.

Now if you think that political appointments are a moral matter rather than a balance of power within the constitution matter, it's not a bridge that I have to sell you, it's a planet.

I think the problem is that you cannot use one strategy one time, and another the next. If he’d elected to delay like before, nobody would have complained. If he’d not sabotaged the last nomination, nobody would have complained now either.

The democrats would have complained if it was under a democrat president. I don’t believe a single second that this is about principles.

Using hypotheticals to rebut actual history and facts is very 21st century GOP.

His point was that the WH and Senate shouldn't contemplate a SCOTUS nominee in an election year if they are controlled by opposite parties. Not hypocritical as that's not the case this time.

That's the way he's reframing the point now. There was no mention from 2016 that I can find where he mentioned anything about opposite parties: his argument was entirely "it's too close to the election and the next president should be the one who gets to appoint the next Justice."

That's what was given to him in 2016 by the Senate which holds the power of giving or not giving a vote to the WH nominee according to the constitution:



1. Don't impeach a president in an election year.

2. If dems wanted their adversaries to respect unwritten norms, maybe they should have refrained from baselessly accusing the nominees of gang rape (Justice Kavanaugh, Clarence Thomas).

3. A SC Judge vote needs BOTH WH and Senate. That was not the case in 2016 regardless of who said what. That is the case this time. It's the President's prerogative to nominate, and the Senate's prerogative to confirm.

4. This time, it would also most likely be a contested election. So not having a full supreme count will be a disaster.

Btw, I am NOT a fan of McConnell. But this case is very different.

I know it doesn't mean much, but I filled out a plea to both my Republican senators and Mitch McConnell's contact forms to respect the McConnell / Merrick Garland precedent in 2016. Obviously they've explicitly said they wouldn't, but it doesn't hurt to try.

McConnell has already publicly stated that he's bringing a nominee to the senate floor. You didn't think he'd have consistency and integrity even with his own precedent did you?

From the article:

> Asked what he would do in circumstances like these, McConnell said: "Oh, we'd fill it." [the supreme court seat]

McConnell has already stated that he will put someone up even though his logic would apply to this year.

In a normal government, precedent would likely be followed.

This is not a normal government.

The precedent set was that the Senate can overrule the president. That precedent will be followed.

I don't think anyone misunderstands the situation - McConnell is going to do whatever is most expedient to get a Supreme Court composition that he likes. Any specific justification is mostly cosmetic - Senate has the power, and the controller of the Senate uses the power.

That was not the precedent. The precedent was to “allow the country to decide.” Drop the pretext. His side won. Screw the other side. Just have some integrity and own it.

Actually, I think this is now normal in the U.S. and should be expected going forward. From both duopoly parties.

Power grabbing is the game.

Of course. If it’s clear that the other party is not playing by the rules, there’s very little reason to keep to them yourself.

That does not form a legal precedent. What you refer to was a political move and not a legal action. The Constitution governs this, not how people previously voted or blocked votes.

I believe the first time a SC nominee was blocked was Roger Taney in 1835. This is politics and happens, as a general principle, regularly by both parties.

Mcconnell has already said he confirm a nominees without delay. He can even confirm after losing my the election in a lame duck session if he wants.

Precedent means nothing. There's no law. Mcconnell just abused his power and will do so again with no regard for his past position.

Did you view it as an abuse of power when Harry Reid invoked the 'nuclear option' on filibuster?

Did you view it as an abuse of power when Republicans filibustered Obama's nominees, making the nuclear option the only option?

No, and No. This is how the Senate works. What people are crying about right now is a standard of proceduralism that is completely made up and has never, ever been what either party believed in. Do you want to win? Good, welcome to democracy.

It's not. Mcconnell in 2016 declared it improper to vote on a nominee in an election year and now he says it can be done less than 6 weeks before an election. Yes it is within his authority and breaks no laws but the US Senate has traditions of decorum and fairness that he is trading for a short term win to the detriment of the country. We can't send him to jail but we can certainly be upset.

In 2016 the senate and the White House were held by different parties. Since SCOTUS nominations come from the executive, and are seated with advice and consent of the Senate, what McConnell did is not only normal it’s perfectly in line with a century of precedent. The idea that it was out of line, or against some nonexistent norm, is a narrative invented to make people feel better and discredit the court in the eyes of the public.

Prior to this Senate session, SC nominees could be filibustered. And every nomination prior to Brett Kavanaugh had bipartisan votes. The Senate is as responsible as the President for keeping the SC staffed with competent jurists. The role is meant to be apolitical. The first salvo was the nomination of Robert Bork by Reagan. He was a terrible choice but was replaced by Kennedy who was confirmed 97-0. Even Clarence Thomas got 11 Dems to vote for him. Mcconnell refused to even hold hearings for Garland or take a committee vote. That's an abdication of his duty.

Again, there is no "duty" here. The Senate is not subservient to the executive branch. This "norm" has been invented out of thin air.

Since the Senate was held by a different party, senators could have voted against Obama's candidate, couldn't they? But they didn't; rather, Garland wasn't ever brought to the Senate for a confirmation vote.

Because McConnell didn't care a bit about the people expressing the next Justice, he was more simply scared as fuck of losing that vote despite theoretically having a majority.

Since this is HN I will paraphrase Bryan Cantrill: "Do not fall into the trap of trying to anthropomorphize McConnell. You need to think of him the way you think of a lawnmower".

McConnell was given the power to do that by the rest of the Senators who put him in that position.

The narrative that Garland would have been confirmed if only he’d gotten a vote assumes that McConnell didn’t have the support of his caucus in what he did. That’s an incorrect assumption. They could have removed him and done what they wanted to do if there was some groundswell of support for Garland in the Republican Party. There wasn’t, they supported McConnell, and Garland wasn’t brought to a vote. That’s just how politics works.

It was hardly an abuse. It was business as usual.

It was a new rule, concocted at a moments notice, and discarded the moment it outlived its usefulness. That latter moment was today. It was the definition of abuse.

Please tell me the last time a democrat-controlled senate confirmed a Supreme Court justice for a republican president in an election year.

Sure, the Democratic-led Senate confirmed Reagan's appointment of Anthony Kennedy in 1988.

Except the vacancy opened up in 1987, not an election year, and it was Reagan's third attempt to appoint someone to that seat.

I was responding to the request, "Please tell me the last time a democrat-controlled senate confirmed a Supreme Court justice for a republican president in an election year."

If you're trying to be thorough, though, you should probably mention that Reagan's first selection for that seat was controversial because of his involvement in the the post-Watergate "Saturday Night Massacre," as well as the general suspicion that he would try to reverse Roe v. Wade and other civil rights-related rulings of preceding decades. Reagan's second selection withdrew his name from consideration before even being nominated, so I'm not sure why he's even relevant here.

I get that you're trying to make a political point, but there's simply no evidence that Democrats would have behaved like McConnell's GOP (perhaps more aptly described as the post-Gingrich GOP) did in 2016.

Democrats blocked Bork for an article he wrote 25 years before, which raised the libertarian argument of whether Congress should be able to regulate racial discrimination by private parties. It is to this day a challenging topic for even liberal libertarians, because those laws rest on a sweeping interpretation of the interstate commerce clause. But Democrats used that article to defame Bork as a segregationist. The second nominee withdraw his nomination after it came out he used marijuana, after what happened to Bork. So yes, Democrats were not in a position to play that cars a third time against a wildly popular sitting President.

There is ample evidence that Democrats would have behaved like McConnell did. For example, their threats to pack the Supreme Court in 2019. (After their threats to pack the Supreme Court under FDR gutted large parts of the constitution.) The fact is that Democrats don’t perceive conservatives as legitimate players in the political process. That’s why they continually raise alarm about conservative Supreme Court nominees, even though in 40 years of a conservative majority on the court, not a single major liberal precedent has been overturned.

The Democrats didn’t block Bork for writing an article.

Democratic “threats” made in 2019, post-Merrick Garland, have zero bearing on their hypothetical behavior in 2016, pre-Merrick Garland and the shattering of norms that his (non)hearings represented.

I’m not a Democrat, but, from the outside looking in, it doesn’t seem like they have a real problem with right-leaning politicians or judges. I can understand why they might not view those who seem to be pursuing a return to the pre-Civil Rights era as wholly legitimate, but they’ve adopted plenty of relatively conservative positions over the years (just look at the record of their current presidential candidate!). The American Left has only recently begun to show its face again, for example, after decades of absence, and the Democratic Party has long seemed to harbor more resentment toward that group than moderate conservatives.

I’m also not a demographer, but I don’t think many would consider a potential 6-3 conservative majority on the SC to be at all representative of the US population. To me, that seems like the real legitimacy crisis here, not whether Democrats think of conservatives as legitimate political actors (spoiler alert: I think it’s safe to say they view conservatives about as favorably as conservatives view them).

You’re mixing up legal versus political conservatism, which are two very different things. I agree Biden is very moderate politically. But no Democratic Justice is meaningfully conservative legally (though Kagan displays a streak of it). In close decisions, the conservative justices routinely break ranks. (Roberts in the ACA case, Kennedy in Obergefell, Gorsuch in Bostock, Scalia in many 4th amendment cases, and in the video game first amendment case.) The Democratic appointees always vote as a block.

You’re wrong to say that Republicans hate democrats as much as democrats hate republicans. There is pretty much no liberal opinion you could say that would get you personally attacked at a federalist society meeting. There are a wide range of mainstream conservative views you’d best not say in a similar context among liberals.

> The Democratic appointees always vote as a block

I think this behavior could very possibly be caused by there being more conservative justices. If there were 6 liberal justices and 3 conservative ones you'd probably see the 3 vote as a block and the 6 break rank.

The supreme court is going to mostly issue opinions that are close to it's median member. And the more liberal or conservative justices on the supreme court the more liberal or conservative that viewpoint will be. And thus the more likely the more moderate members will be to break rank.

Black Lives Matter.

Constrain the operational gamut of law enforcement (aka “defund the police”).

Abortion is a medical health issue and a woman’s right to choose.

I dunno, there’s plenty that will get be undue attention at a Federalist meeting, and some things I could say that would put my life on the line (remembering home invasions, fire bombings and an assassination of a surgeon involved in abortions).

I've only voted straight democratic ticket for my entire life. And I feel more comfortable sharing my views with trump supporters than my liberal friends.

Just last night I had to walk away from a conversation because the other party got so heated just because I suggested it's very likely the new supreme court won't overturn roe v wade.

The GOP have been trying to overturn Roe vs Wade since at least the Reagan era, if not from the day the decision was made.

What was your reasoning for your side of the argument? Were you arguing based on the GOP history of not successfully overturning RvW, or were you challenging the other side's assumptions about GOP wanting to overturn RvW? Were you playing the ball or the player?

I didn't even get to my argument.

Which is basically two fold. Roe vs wade is very popular. Last pre research poll I found said even among Republicans less people wanted to overturn it than not overturn it. 49 to 48.

If the Republican justices fall along these same lines it won't get overturned.

Which brings us to our next argument Which is basically the supreme court is very reluctant to overturn major constitutional court cases that have stood for almost half a century.

So will the supreme court throw out 50 years of precedence to overturn an issue that 70-80% of the population and 50% of Republicans disagree with overturning?

It's not impossible but doesn't seem likely.

I’d say any of those things at CPAC much less Fed Soc. Last Fed Soc meeting I was at before COVID, we had a vigorous debate over Bostock. The room was split 50/50. Likewise, there are enough libertarians to get a good amount of support for constraining the operational gamut of police or eliminating qualified immunity. More than a third of Republicans support making abortions always or mostly legal, and among Fed Soc, which leans a tidge libertarian, it’s probably half. Meanwhile, I wouldn’t address any of the nuances of those issues at an ABA meeting, much less in a partisan liberal organization.

> Last Fed Soc meeting I was at

That explains a lot :)

I’ve been hearing right wing talk radio call liberalism a mental illness for at least 20 years.

Sure, that’s right wing radio. I’m talking about fairly ordinary people at ordinary people. You see this even within the Democratic Party itself, which has come to demand strict ideological purity. Everyone just pretends that 50% of Black people don’t oppose same-sex marriage, and that the 30% of the party that’s pro-life doesn’t exist.

Who is "everyone"? This has been known fact for a long time within Democratic circles. https://www.pewforum.org/fact-sheet/changing-attitudes-on-ga...

You must have some very interesting "ordinary" friends. You're also trying to compare the federalist society, a high-brow legal organization composed of highly educated lawyers, with ordinary, likely much less educated people. Try going to a Trump rally and holding up a black lives matter sign. I'm sure you'll have plenty of intellectually stimulating conversation.

I think you'd get the same or better reception than if you held up a blue lives matter poster at an aoc rally.

So the issue was that Reagan put up an acceptable, suitable candidate finally.

Whereas Mitch's philosophy is "no candidate will be entertained as being possibly acceptable or suitable".

Trying to drawn parallels between the two is grasping at best, disingenuous at worst.

>third attempt to appoint someone to that seat.

That's called compromise, and it is how a government should function, but Republicans have lost all ability to do that and so we have stalemate after stalemate, no covid stimulus, no attempt to compromise on anything. Democrats are fine with compromise, to a point, but the republicans have to meet in the middle, not take their ball and go home like they always fucking do.

Compromise? Democrats are still trying to delegitimize the election they lost 4 years ago.

Impeaching the president for an alleged offense committed while in office is not "trying to delegitimize the election," unless you're prepared to say Republicans were "trying to delegitimize the election" of Bill Clinton. Conversely, it is absolutely without question that there are Republican officials, like the president himself, trying very, very hard to delegitimize the 2020 election before it happens. And I would dearly like to see more Republicans, who used to be so damn concerned about preserving the rule of law, upset about that.

Oh I’m not even talking about the impeachment.

You are right, and shouldn’t be downvoted for pointing out a simple truth.

People are upset because the media played it up as such a miscarriage of justice, but the truth is the senate wouldn’t have confirmed him and so they didn’t vote for a hearing.

The Democrats of course can and obviously will do the same the next time they have opposition in the senate - and would have done the same, I’d bet, if the situation was flipped then.

I actually think many don’t understand this as it was really propagandized on Twitter, etc as some massive deal, but having the hearing wouldn’t have changed anything.

> but the truth is the senate wouldn’t have confirmed him and so they didn’t vote for a hearing.

This is not necessarily true. McConnell does this to protect his fellow senators from having to decide between party and state, potentially hurting their re-election chances if they side with the party. Majority leaders regularly stop things going to vote not because they wouldn't pass, but rather because it can create strife and bad feelings within the party.

Has an opposition senate ever elected a Supreme Court nominee in an election year?

I'm not sure this is really as relevant a question as whether an opposition senate has ever blocked a Supreme Court nominee in an election year. I don't have the answer to that, but it appears the last time a Democratic president made a Supreme Court appointment while Republicans held the Senate was in 1895, whereas the last time the reverse happened was 1987. So while we may not be able to say "the Democrats clearly wouldn't have done the same thing McConnell did" with surety, I don't think we can say that they clearly would have, either.

1987 wasnt the final year of the presidency.

Yes, i know. Neither was 1895. That was kind of my point. Let me try to frame this a hopefully better way.

People keep trying to argue that McConnell isn't being a hypocrite, he's just following precedent. But for that to be true, we need to (a) find a time before 2016 when the Senate prevented a Supreme Court nominee from even getting a vote on the Senate floor in an election year, and (b) the Senate needs to specifically cite the upcoming election as a reason. So far, no one seems to be able to point to that supposedly precedent-setting case. And that's before we throw in McConnell's new claim as of yesterday that such a precedent only applies when the Senate majority and the President are from two different parties, a condition which, it's worth noting, was never mentioned by him or any of his supporters in 2016.

In strictly legal terms, McConnell gets to do what he wants. But the claim that he was following some previously established norm by denying Garland a vote in 2016 but not denying a new nominee a vote in 2020 is simply a lie.

And that was my point.

It absolutely was mentioned by many people in 2016 (including McConnell himself, if you read his statements and realize he wasn’t spelling it out word for word because the majority aspect was blindingly obvious, and if I recall he may have even clarified that part too).

I read about it extensively at the time from many on the right, and the left - that was the entire grounds for it happening. That McConnel himself may not have explicitly called out the Senate majority in his prominent press interviews was because it was totally obvious to anyone even remotely familiar with politics why, and therefore why beyond saying “it’s an electron year” would he need to keep clarifying? He just wasn’t assuming the insane amount of bad faith everyone would give him, incl. people like yourself.

So no, you don’t have some subtle understanding that no one else besides you and “your side” is getting at all.

Again, let me reiterate, because it seems you’re really trying to find something here: it was discussed on the right extensively, explicitly mentioning the Senate majority factor at the time, in 2016, and was generally well understood on the right. In fact the rights news writers were sort of flabbergasted and writing about how it’s being propagandized to look super bad when in fact it was not. I can’t even believe you’re trying to argue that wasn’t the case - talk about a straw-man.

Avoiding the vote altogether as opposed to having it and rejecting it was indeed unique, but not hypocritical. Simply put, he had the power to do that as the majority in the Senate. You can be upset about it, but I suspect you’re really just upset because your side lost or you have some gut revulsion towards McConnel, not because it was some grand betrayal - because it didn’t change a single thing in terms of outcomes, not even in terms of slippery slopes. The Democrats are totally free to do the same the next time this situation comes up, and they will and are expected to, and that too wouldn’t change a thing, and I’m sure some idiot Republicans will whine about it as well...that’s politics.

Anthony Kennedy, a Reagan nominee, was confirmed by a Democratic Senate in 1988.

Anthony Kennedy was nominated in 1987. The spot was vacant for 18 months. Dems unanimously confirmed him.

Nominated in November 1987 and confirmed in February 1988. The spot wasn't vacant for 18 months once a reasonable candidate was nominated.

The Senate wasn't setting a precedent, they were simply blocking the nomination from the opposite political party....as is their right.

Would have played out the exact same way if political tables were turned.

I think the political tables have been turned that way quite a few times, but it never happened until that time.

Any references and/or dates?

Or just gonna stop there since that's what you'd like to believe?

Not really, just an inference from there being some 150 years of election.

If there was an instance where the other party did this the GOP would be slapping them around the ears with it. So since they’re not doing that, I assume there’s no instance they can use.

The Democrats wanted the nomination to go through, but the Republicans blocked it. There's no real precedent unless both parties are for it.

This is America there is literally nothing stopping anything from happening if you wield power.

McConnell is on the record saying he would seat a justice during Trump's reelection.

There are no principles, just power struggles.

If HRC was president, McConnell would follow his 2016 policy. With Trump president he'll make a new policy.

There are no repercussions for bringing home the bacon to your constituents at any cost.

Mcconnell's stated policy was that he wouldn't confirm any Clinton nomination, regardless of the year.

I'm curious: does anybody seriously think that if the positions were reversed that the Democrats would honor this?

Let's say that Biden wins, then Trump runs against him again in 2024. Somebody dies or retires right before the election, do you think the democrats would seriously wait and risk allowing the nomination to be done by Trump?

None of these people are in any way signaling their actual virtues. It's all just slogans. Also: the Democrats didn't grant this to the Republicans over Scalia. The Republicans were in power in the Senate at the time and used this power to their advantage.

Yeah, this is all terrible: this is the world you get when our politics seem to be regulated by twitter. If you want this to change, get rid of cable news talk shows, and get rid of twitter. Until then, this is what you're going to have.

The reason why this is not transferable to the Democrats, is because they haven't previously refused to hold confirmation hearings for an appointee solely on the basis that there'd be an election later that year.

If you're asking whether Democrats would have placed themselves in a similar position in 2016 if the roles were reversed, then the answer is no. I'd expect them to consider the nominee, and quite likely vote against - but they wouldn't stonewall until election.

But Democrats did try to nominate Garland in 2016, so now can they protest if Republicans put up a nominee now? Republican position may be inconsistent between 2020 and 2016, but if Reps now take position taken by Dems in 2016, how can Dems be critical if it?.

They can be critical of it precisely because of the republicans' hipocrisy.

Why would anyone believe Democrats would behave differently after they spent all of last year again threatening to pack the Supreme Court?

Has any elected democrat threatened to pack the supreme court, except as a response to McConnell reversing his position now that his party is in control?

You can't compare the senate majority leader with a random anonymous twitter account.

Two top candidates in the 2019 primaries, both senators, one of whom is running for VP: https://thehill.com/homenews/administration/434533-warren-ha...

From their statements, it's hard for me to see a "threat". This is a threat: https://twitter.com/EdMarkey/status/1307122232850870274.

"We are on the verge of a crisis of confidence in the Supreme Court, We have to take this challenge head on, and everything is on the table to do that." is...not.

Even still, your argument doesn't follow. Reacting to someone doing a thing you disapprove of isn't the same as instigating the thing. Your argument is that since Democrats disapprove of what Republicans did, and are considering taking action to undo and action they disapprove of, that they would have also done the act. That is very strange reasoning.

Nobody should be talking about court packing. Sitting on nominations to gain tactical advantage might be a sneaky. But it’s something that’s been done forever. Expanding the Supreme Court for political purposes would be unprecedented and breaking a huge taboo. It is not at all a proportional response.

Refusing to vote on a nominee is also unprecedented. You've yet to acknowledge that in every other case the Senate voted. This time they refused to even put it to a vote. (And some senators considered continuing it through the entire clinton presidency, were she elected, I might add)

That's also a huge taboo, and for good reason. It prevents voters from making politically informed decisions because their representatives don't have actions on which to judge.

Supreme Court nominations were allowed to expire without action 14 times (out of 37 unsuccessful nominations) before Garland.

Indeed, but to find one in an election year you have to jump back to 1881, where Hayes proposed a Justice after the election had already happened. The confirmation lapsed. President Grant proposed the same justice and he was confirmed. Worth noting, Hayes also had a justice confirmed as a lame duck (William Burnham Woods).

[Edit: I missed lame-duck Millard Filmore in 1852 the first time around also]

Prior to that you had John Tyler in 1844, who had two vacancies in the court open up in his election year. He made 9 proposals of 5 different people, one (John C. Spencer) was rejected and then later re-proposed and withdrawn, one (Reuben Walworth) was proposed 3 times, withdrawn once and postponed or lapsed twice. One was confirmed. Another was proposed twice. So this whole thing was a complete circus, but even still congress did their duty and confirmed one of Tyler's picks.

Prior to that there was John Quincey Adams who, also as a lame-duck, proposed a nominee who was tabled. In 1828.

So the precedent, insofar as there is one, is that when an election has already happened, the other party can table it. Except that more often than not, that doesn't happen. In fact, it's really only happened twice, in 1828, and 1852, and then not in 1880 despite similar circumstances. And then 2016.

And again those cases were different: Adams had already lost the election, when he made the nomination. Fillmore is maybe the closest, even though it happened later in the year the election hadn't happened yet, but Fillmore also failed to be re-nominated, so in a sense he'd lost the election in the primary.

[To be extra clear, in most of the cases where a nomination expired, the same president had a nominee confirmed later (Eisenhower, Harding, Cleveland), so it wasn't a flat out refusal to entertain candidates.

If your claim is supported by that article you linked down below, it seems like a big stretch to refer to Democrats as a unified whole ("believe Democrats ... after they") when you're referring to three people, two of whom were engaged in ultimately failed campaigns for the presidency.

It might be more constructive to speak with precision about a claim of such import.

Possibly. There is a level of accountability that seems to happen with the Democratic party. Not to say absolutely but it has happened.


Throwing one of your own under the bus for political reasons isn’t what I’d call accountability.

And here's the example comment that highlights the varying moral compass that seems to exist in defining what one perceives as "thrown under the bus" vs "holding accountable". What are your political leanings, if you don't mind me asking?

My leanings are complicated. I’d boil it down to a mix of pragmatism and pro-rights. I’m pro choice, pro 2nd amendment, pro gay marriage, mostly for a small government, etc. I usually lean republican nowdays due to the democratic side of the aisle being more likely to actually take rights away.

I don’t think what we know he did deserved the punishment, especially the picture where he was pretend groping. Nobody would have batted an eye at it at the time.

Maybe not as what we hope accountability really means but it is slightly better than protecting your own knowing they did wrong.

Mitch McConnell and Trump will have a replacement confirmed by the end of October.

Absolutely not. Why would Trump eliminate one of the biggest draws to electing him? If he pushes someone through before November, he absolutely loses the senate (assuming you believe the polls). No way those purple states with senators up for election are going to carry Republicans who went from "we don't vote for the USSC during final term years" to "RUSH THROUGH THE FEDERALIST SOCIETY NOMINEE!" in 4 years.

The move is to have everything set and ready to go during the lame duck and push hard then if you lose or wait until Jan if you win. Removes the election math from the process.

Please don't use uppercase for emphasis. If you want to emphasize a word or phrase, put asterisks around it and it will get italicized.


This is probably the most toxicity I've ever seen in an HN story's comments. Thanks for everything you do... I imagine you've got your work cut out for you tonight.

TIL. I use underscores for italics (as my normal applications work that way), and have just been accepting that my emphasis looks like _emphasis_, instead of emphasis. Thank you.

Thanks for moderating this thread dang, you’re a saint.

Of all the fouls you could call...

There's no implication about relative importance.

Also, if it isn't consistent, that's because we only see a portion of what gets posted here, often rather randomly. If you see a post that ought to have been moderated but hasn't been, the likeliest explanation is that we didn't see it. You can help by flagging it or emailing us at hn@ycombinator.com.


With Supreme Court supremacy Republicans don’t have to get re-elected by voters anymore, they just have to dispute the results, lose, and appeal up to the nearest friendly court.

And trump has appointed a huge amount of federal judges, including appeals court judges. With this he'd have appointed 3 supreme court judges as well.

It's apocalypse for the democrats.

The court seat matters more than the Senate and more than the presidency to Mitch McConnell. He’d give up his own senate seat to confirm this justice.

You can have your cake and eat it too by waiting, though.

The looming court seat was a very effective driver of votes for Trump in the previous election, at least that's the conventional wisdom. So have a go at seeing if that will work again. You can also spin it as being respectful, serious, and considered by waiting.

Even if you end up losing the Presidency, and even the Senate, you're still in power for enough time afterward to make an appointment.

The only things I could think of working against that would be: the idea that you just make the appointment immediately and tout it as another success to your base, or perhaps a fear that since it's Ginsburg's seat that's vacant, having it open is actually a more mobilizing force for Democrats. There's also, I suppose, the possibility that you make the move right away on the theory that this upcoming election is likely to be contested and could reach the Supreme Court.

> You can have your cake and eat it too by waiting, though.

The risk of not winning either is too much. They'd rather get the "win" and campaign on the win.

OP is saying that there's no risk, because you can wait until after the election, but before the new term begins (i.e. before January, 3). Trump could still nominate then, and the current Senate could confirm.

But this is also exactly why this gambit doesn't really work - because the voters know that whatever happens at the polls, the end result is the same. They could hold voters hostage to the Supreme Court nomination back in 2016 because there was a split between the president and the Senate that blocked either side from getting what they really wanted until the next term.

Trump and the GOP plan to steal the electrion via the Supreme Court, just like GW Bush did in 2000, except this time they will need SCOTUS a lot more because it won't be as easy for them to justify nulling a landslide for Biden - but they will do it anyway because they have no shame, and if they have power, and they have SCOTUS to do their dirty work, then so be it.

I definitely would expect Trump to calculate whether it is more in his interests to do it before or after election day.

I don't think it's possible to remove the election math, though. Whatever he does, it could influence voter turnout for both sides.

There's also the possibility that something about the election will be disputed and go to the Supreme Court (as happened with vote counting with Bush v. Gore in 2000). So Trump might decide he wants his appointee to already be serving before election day if he thinks that would be more in his favor.

With the large mail in vote, an appointee before election day seems likely.

Yep. It's pretty much needed as if the election is contested and needs to be decided by the Supreme Court, not having a justice will be a disaster. Also presidency ends on January 20th - you can't go without a justice for 4 months.

Why can't we go without a justice for 4 months? After Scalia died we lacked a justice for nearly a year.


Because this time, most likely there will be a contested election. And because this time it's different because both the WH and Senate are held by the same party unlike 2016. SC judge needs both Senate and WH and that was not the case in 2016.

Either way, it takes 5 justices to make a majority.

Interesting point. Trump and McConnell's interests aren't actually aligned, here. McConnell is up for reelection, ahead in the polls, and wants an inoffsensive conservative justice. Trump's behind, is more interested in his reelection than in getting a conservative justice on the court. He can't drag his feet too long or it will look like he's stalling, and he'd have to nominate a judicial version of Judy Shelton so he's playing to his base, but it's someone the Senate wouldn't approve. Or if they have someone they already vetted with skeletons in the closet that just haven't come out yet.

Agree, but worth noting that they can nominate/seat someone after the election. They have their POTUS and majority until the end of January.

This logic might apply during less polarized times.

American politics right now is full-on us-versus-them, and who has the biggest numbers. McConnell is in Kentucky and ahead in the polls, and he’s smart enough not to full-on troll the left with a flat-out fascist.

The left will respond as if he did anyway, but they’ll have a lot less success in convincing conservatives it’s a bad move if the judge is not beyond what most conservatives will support. That line has shifted far to the right (or, to the far right) over the past 30 years.

I guess I’m saying that opinions on an “inoffensive conservative justice” is a bimodal distribution, and McConnell’s right hump is higher.

> American politics right now is full-on us-versus-them

Among voters, but Trump would/did(?) throw the GOP under the bus to get elected.

Getting a conservative justice on the court is a massive draw for Trump's reelection. That's why he released a list of candidates before both elections.

He can still nominate after the election even if he loses it - his term doesn't end immediately. It's not really like the other two times - not like 2018 because there was no vacancy on the court then, and not like 2016 because the president and the Senate were deadlocked then.

I don't get this theory. There are a lot of people out there who want to see a conservative justice elected, but prefer Biden over Trump in the White House? Or a lot of conservative voters who are apathetic about the presidency and might not vote, but would be convinced to come to the polls if a Supreme Court spot was at stake?

I mean I can believe both of those sets of people exist, but hardly that they're numerous enough to dictate the election strategy.

It's not so much that they prefer Biden over Trump. But they dislike Trump. I know people who cannot stand his antics on Twitter or the way he disrespects women or his blatant infidelity to his wives. However they strongly believe in conservative and Christian values and will hold their nose while the vote for him to try to ensure the supreme court votes their way on issues such as abortion. Trump knows this and uses it as a carrot to encourage these people to vote for him.

Yes, there are lots of people who will tell you how much they dislike Trump, then vote for him. I'm saying that those people still exist even if the Supreme Court spot isn't at stake: a Republican White House still gives them a better chance of legislation upholding conservative values in the future.

I bet there are a lot of independents who would prefer Trump to nominate a Justice and then lose the election.

there are zero people who fit this description

A lot of right libertarians are in this boat, actually.

Why? Trump is never going to appoint a justice who will legitimately advance any cause of liberty. He’s going to appoint someone who will protect his power and the power of the Republican Party. Trump making more appointments is exactly the same as him getting another 4 years, except it will last decades.

I'm not a right libertarian, so I can't really argue with you. But you have to understand that your perspective on Trump is not necessarily shared by them, regardless of how objective it may be.

Gorsuch is the most libertarian-leaning Justice we’ve had in decades. Others on the short list, such as Barrett or Kethledge, also have significant records of originalism with respect to the scope of the administrative state.

I don’t think libertarians realize where we are in 2020. Lots of culture war stuff from the last few decades where libertarians sided with liberals (abortion, contraception, same-sex marriage) has now flipped and then battleground is keeping the government from forcing people to participate in those things: Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers (and presumably caterers, etc.)

Are you referring to the following story, where the US government is suing a hospital for not respecting the religious morality of a nurse?


Yes, among other things: https://www.wsj.com/articles/federal-judge-strikes-down-rule.... Opposition to conscience rights--forcing medical providers to provide contraception or abortions in non-emergency situations when it is against their religious beliefs--is the next policy front for certain organizations: https://www.prochoiceamerica.org/issue/abortion-refusal-laws.

Nearly all EU countries recognize such conscience rights. Eliminating them would put the U.S. squarely outside the mainstream on this issue: https://en.wikipedia.org/wiki/Conscientious_objection_to_abo... ("Conscientious objection is granted in 22 member states of the European Union plus the United Kingdom, Norway and Switzerland.").

So the libertarian position is now that conscience cannot be protected by contract law between consenting parties?

The context of this is laws that would require providers to provide certain services, under which such a contract would be deemed illegally opting out (as set forth in the court case linked above). That’s the whole point of this effort.

Is there a law in the US that forces a doctor to perform an abortion or a nurse to participate? Aside from one that says that your employer can ask you to fulfill the terms of your contract or lose your job? It seems that the vast majority of laws limiting physician freedom are being proposed or passed to prevent them from performing abortions, counseling patients about abortion, or discuss guns in the household.

Even in the absence of a specific law, medical providers can always be sued. Part of the push to redefine elective abortion from a right rooted in bodily autonomy to being “routine healthcare” is to open providers to lawsuits for refusing to provide them: https://thehill.com/opinion/healthcare/390968-abortion-refus...

Ah, now you’re reminding me of a case in Ireland where they let the Hindu, not Catholic, patient die because they did not believe in abortion. That is not a scenario I want in my life. Doctors choosing your morals for you and calling it their conscience?

I guess it’s the libertarian thing. Your right to swing your arm ends at my nose.

Except it’s not just about emergency care. (In that case I’d argue it’s a critical public safety issue.) Advocacy groups are targeting the practice generally, because providers opting out can mean that people have to travel further to get an elective abortion, sterilization, contraception, etc. You don’t have to be all that libertarian to believe that in non-emergency situations, doctors should be able to tell people to go somewhere else to get a procedure the doctor doesn’t wish to perform.

And, of course, since the doctor is also an active participant in killing the fetus, it’s not the “doctor imposing morals in the patient.”

There’s more to it. They often know at 8 weeks that an ectopic pregnancy is there. It won’t be for another 30 weeks that it becomes a problem. So, not really an emergency room situation but something where you might be in the room with your Ob/Gyn. If that person thinks abortion is murder they shouldn’t let you know that other doctors will happily murder your fetus to save you. If you die it’s god’s will. If the baby dies in 30 weeks, that’s also god’s will. You’re saying that the doctor should be held harmless withholding that information?

> Catholics being forced to perform elective abortions, nuns being forced to pay for contraception, people being forced to participate in same-sex weddings as bakers

so the solution is to ban abortions, contraceptives, and same-sex marriage altogether?

In almost 50 years of a conservative Supreme Court majority, what major liberal precedent has been overturned? Basically none. Heck, Roe itself was a 7-2 decision with two Nixon appointees in the majority. Roberts won’t vote to overturn Roe, neither will Gorsuch, and probably neither will Kavanaugh. Kavanaugh, a Kennedy disciple, won’t undo Obergefell, probably neither will Gorsuch. History shows that conservative justice at best hold the line on social issues, or continue to move forward.

Look at the political debates likely to come up over the next 10 years and tell me where libertarians are aligned with liberals. Apart from the things I mentioned above, cases that will come up may include the constitutionality of a wealth tax, changes to equal protection to allow discrimination in favor of particular groups, firearms confiscation, etc. (I’m not saying all of these will happen, I’m pointing out what the next legal battlegrounds will be.)

> conservative justice at best hold the line on social issues, or continue to move forward.

The difference is that—unlike racial justice, women's rights, and gay rights—in this case abortion was a mistake and so the step forward would be to reverse it. If you go back far enough, society has successfully reversed actions that were at the time considered forward progress.

Dude you are really going to town on this posting. Kudos for fighting the good fight, I'm trying to balance out the downvotes but I'm clearly outnumbered lol. I always feel dirty AF after these flamewars so I don't know how you can do it.

Also, I think most of the "right libertarians" are already Trump votes out of sheer disgust and exasperation. Libertarians (of any stripe) are probably the least likely to get hot and bothered by Trump's antics.

Trump's got a 96% approval amongst conservatives.

There are a lot of evangelical Christians who reluctantly voted for Trump because he'd pack the court (and they like Pence). With one more conservative justice, they might decide the court is adequately packed.

Trump wants to skate from state (NY) let alone federal charges after the election if he loses. The Democrats should use this leverage for all it’s worth. If he’s going to act like a mob boss let’s turn him like one.

Why would he give up virtually guaranteed victory in exchange for something that only matters if he loses?


The irony of your scare-mongering is that Roe was a 7-2 case where two Nixon appointees voted in the majority. It was reaffirmed in Casey where another Republican voted in the majority. Obergefell was written by a Republican. So was Bostock.

I don't think there's irony there. The republican platform explicitly wants to overturn Roe. Russo was months ago. If the new justice is right of Roberts, it would get overturned.

The evangelicals are part of their coalition. They have to at least pretend to try to overturn it or the evangelicals won't show up.

Each party is a coalition of interests whether it's a particular minority, class, etc. They have to at least pander to every part of their coalition, otherwise they don't show up to vote. If nothing gets done, they can simply flail their arms, yell, scream and blame the other party. The important thing is making it look like they are trying.

Each party also has a coalition of large donors who expect a lot more for their money than mere pandering and aren't fooled by the tactics used for the previously mentioned coalitions. Parties without donors die, so this is a existential requirement.

This is essentially why voters never get what they want and donors always do.

A 5-4 conservative majority Supreme Court keeps striking down abortion restrictions, much less rolling anything back. A 6-3 wouldn’t flip it, though you might get some more enforcement of the viability limit. Only Alito and Thomas would actually vote to flip it if it came to that.

I'm not sure what your point is. One doesn't need to overturn Roe outright to overturn Roe in practice for many americans. If there are no abortion providers in your state, and your state bans telemedicine medication abortion, you can't get an abortion. That roe still protects Californians isn't relevant to you in mississippi or georgia or nebraska.

And that really, truly, only takes a 6-3 majority. If Barrett replaced Ginsburg in July, the ruling would have gone the other way. And consternation states well continue to violate the law in an effort to get it changed.

> I'm not sure what your point is. One doesn't need to overturn Roe outright to overturn Roe in practice for many americans. If there are no abortion providers in your state, and your state bans telemedicine medication abortion, you can't get an abortion. That roe still protects Californians isn't relevant to you in mississippi or georgia or nebraska.

Restrictions that eliminated every provider in a state likely would violate Roe itself, as would things like heartbeat laws. Yes, one imagines a 6-3 court would uphold more restrictions than today. But things like mandatory counseling, waiting periods, parental consent periods, 12 week limits, etc., exist in more conservative European countries like Germany, Italy, etc. Even insofar as Roe recognizes a right to bodily autonomy that precludes banning abortion entirely, why shouldn’t the most conservative states in the most religious developed country in the world be able to decide that they’re going to do the minimum required to protect that right, as opposed to something behind that one right.

Not that I want to get in the way of a reasonably articulated airing of the other side of this issue, which I appreciate you offering, but:

One reason is that the most conservative states in the country are still mostly polarized between rural and urban districts, with urban districts housing large majorities of people who want access to reproductive health services, but are denied that by a coalition of mostly rural conservatives to whom the welfare of urban denizens are an externality.

That is to say, the state legislatures aren't really speaking for Jackson or Birmingham or Little Rock (you can look up the demographics if you want). Even in Mississippi, the most conservative state in the county, the spread between Espy and Hyde-Smith in 2018 was just 7 points.

If (say) Kansas City could somehow secede from Kansas, leaving two states --- Rural and Urban Kansas --- I think the principled argument here would be stronger.

In addition to what tptacek says, I have a few other concerns about this line of reasoning. First, with regard to access, there are a number of states that have only a handful of abortion providers as is (the Dakotas collectively have 3 abortion providers). If you are forced to travel 3-4 hours (or more!) for a medical procedure once, sure perhaps that's unavoidable. But to have to do it two or perhaps 3 times makes the service de facto inaccessible to many.

If clinics were common and accessible, having counseling and waiting periods might be more palatable. The problems arise when that counseling is structure to guilt women into not having abortions, or when the waiting periods make it de facto impossible for people to access a medical procedure. I take a very pragmatic view of the law in this regard. That is, someone should not have to lose their job to get an abortion. I recognize that there are other medical procedures where the same thing could happen (and I argue that we should have stronger protections for those cases too!), but it's more egregious when the law is constructed to take advantage of our lack of social safety to make it more difficult to access rights. There's a strong parallel with voter ID laws here.

Also, I don't believe there are prohibitions on counseling, waiting periods, parental consent periods at the federal level in the US. Mississippi has laws requiring all of those, as well as ultrasound, and necessary requirements about the facility. So I don't see how that's relevant. States certainly can, and do, already put into practice those limitations. Russo went further.

Secondly, I personally take issue with religious justification for laws. Even indirectly, especially since we live in a country that claims to provide religious freedom I recognize that this isn't really legally tenable, but when there's a clear religious justification for a law, in my opinion, we should apply stricter scrutiny to that law.

Third, and this perhaps combines some elements of the first two, as well as tptacek's comments: there's a tyranny of the majority (or perhaps plurality) situation that arises. Restrictions on how someone can exercise a legally protected right are dangerous, and should only, be done with very compelling reasons. Most abortion restrictions aren't very compelling.

I also don't see that adding additional legal restrictions is "the minimum to protect that right". Meddling with a right to make it more difficult to exercise isn't doing the minimum, it's something else entirely. Instituting a new law cannot be the minimum. To give an example, the 15th amendment did the minimum in regards to giving black people the right to vote in the US. States that instituted poll taxes and literacy tests were not doing the minimum, they were abridging the right. At a state level, "the minimum" might have been to do nothing to prevent voter intimidation which also happened some. So to return to the modern example, "doing the minimum" might be, like, not instituting buffer zone laws.

You don't have to agree with it but his point was that the WH and Senate shouldn't contemplate a SCOTUS nominee in an election year if they are controlled by opposite parties. Not hypocritical as that's not the case this time.

Also what happens if the election is contested and needs to be decided by the Supreme Court? Can't have a Supreme Court without a justice till January 20th.

> Also what happens if the election is contested and needs to be decided by the Supreme Court? Can't have a Supreme Court without a justice till January 20th.

Strangely enough that same Supreme Court spent most of 2016 without a justice with no issue.

Also, in what world the Supreme Court deciding on the validity of an election with a deciding member having been appointed to it just before that same election by one of the participants does not consist of a massive conflict of interest?

That is not the precedent: https://www.nationalreview.com/2020/08/history-is-on-the-sid...

> History supports Republicans filling the seat. Doing so would not be in any way inconsistent with Senate Republicans’ holding open the seat vacated by Justice Antonin Scalia in 2016. The reason is simple, and was explained by Mitch McConnell at the time. Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat. Historically, when the opposite party controls the Senate, the Senate gets to block Supreme Court nominees sent up in a presidential election year, and hold the seat open for the winner. Both of those precedents are settled by experience as old as the republic.

The linked article actually goes on to describe every situation where there was an election year Supreme Court vacancy. Please read.

I read it. The last time was over 150 years ago. Stop pretending this is a common occurrence.

It's not "common" because election-year Supreme Court vacancies where different parties control the Senate and Presidency are "not common." Republicans filibustered the nominee when LBJ sought to appoint Warren's replacement, leading to Warren not retiring. Then before that, Eisenhower, a Republican, got an election year nomination through by nominating a Democrat.

Then you're back in the 1800s. But we routinely look back to the 1800s to establish what is accepted practice in our government.

> It's not "common" because election-year Supreme Court vacancies where different parties control the Senate and Presidency are "not common."

The number of qualifications needed in order to establish this "precedent" should tip you off that it's manufactured expressly to gain a political advantage.

The "qualifications" come from the appointment and confirmation process itself. The Constitution splits the job of filling Supreme Court vacancies between the two political branches of government. The fact that the process can become political where different parties control those two branches in an election year is utterly unsurprising.

> The fact that the process can become political where different parties control those two branches in an election year is utterly unsurprising.

Correct, no one is actually surprised that Mitch McConnell abandoned the flimsy justification for his power grab the instant it outlived its use to him.

How is doing something exactly as it’s spelled out in the Constitution a “power grab”?

Alternatively, McConnell could have called the vote and the Republican majority in the Senate could have just voted it down.

Pre-nuclear option (an actual example of a power grab) even a minority of Senators could stop a nominee from getting through. The Republicans had a majority.

> Alternatively, McConnell could have called the vote and the Republican majority in the Senate could have just voted it down.

It can't be assumed that there wouldn't be Republican defections on a Garland confirmation. This is exactly the reason the majority leader refused to allow a vote. Even now, a number of Republican Senators have already "defected" and declared they won't vote on a nominee before the 2021 inauguration.

They should have voted on it!

> But we routinely look back to the 1800s to establish what is accepted practice in our government.


Yes. In fact, the usual presumption is the opposite. The closer in time to the adoption of the constitution we can trace some pattern (or in the case of a law to enactment of the law) that is more persuasive. If the generation that wrote the constitution engaged in this political gamesmanship (and they did) that strongly suggests they understood such conduct was permissible within the framework they created.

> The closer in time to the adoption of the constitution we can trace some pattern (or in the case of a law to enactment of the law) that is more persuasive.

This sounds a lot like "originalism", which is controversial at best.

Come on. Kennedy was confirmed in November of the year before the election.

On the third try to fill a vacancy that opened up in a non election year.

Again: come on.

You, I and everyone else knows that this was a pretext, not a precedent. You can dress it up however you like, but the fact is that McConnell was going to do whatever he wanted no matter what.

Just curious: does dem-controlled senate behave differently?

Can you cite something other than the conservative National Review?

The "conservative" National Review went back to every Supreme Court appointment in history and made charts showing exactly what happened to answer your question. The New York Times, with its "moral clarity" performed no such analysis and presented no such charts.

So no, I won't cite something else.

Why put ‘conservative’ in quotes? If you Google the name of the magazine their own meta description says conservative as the second word, so they consider themselves a partisan source.

In English quotes can be ambiguous, in this case they mean it is a direct quote from the parent comment (for emphasis, basically), not that it's under suspicion.

Your bias is showing.

The National Review article links to the source data, data from CRS and data from senate.gov. CRS is the Congressional Research Service.

It's amazing how if someone shared NYTimes, WaPo, VOX, VICE etc, then everyone's cool. But if someone shares a slightly right leaning source, people start asking for "non-conservative" source.

Honestly you won't get a clear picture from reading a single source, or even multiple sources that lean a particular way. You have to read multiple sources from both political leanings.

Think of it as a trial. Liberal leaning media is the prosecutor and conservative media is the defendant. Depending on the topic, these roles are reversed.

Fair point. I am just pointing out the hypocrisy.

As much as I respected and admired RBG, even she would’ve known it’s at best a wish and nothing else.

If things weren’t so polarized, they absolutely should spare no time in replacing the seat, as is their duty. But we know it’ll be yet another cynical and dishonest process as it was last time.

Just like Obama's nomination was blocked for more than a year to "let the voters decide"?

Sorry if I wasn’t clear. I found that disgusting and abhorrent, and a clear abdication of their duties.

McConnell says you never replace a Supreme Court Justice in an election year.

Let's see just how long it takes him to release a public statement going back on that one...

> Mr. McConnell and his allies say the two situations are different. Where one party controls the Senate and the other the presidency, as in 2016, they say, vacancies should not be filled in a presidential election year. Where the same party controls both the Senate and presidency, they argue, confirmations may proceed.


It's a terrible argument. If the senate is not controlled by the same party as the president and they dislike the president's choice for supreme court, they can vote not to confirm him/her. It also encourages the president to choose a nominee who can appeal to both parties. McConnell refused to allow Garland to even have hearings in the Senate let alone a vote because he feared that some of his republican colleagues may have been persuaded. If there are two controlling parties in two parts of the government then the solution is compromise. This is a philosophy totally abhorrent to McConnell whose views can only be supported by an authoritarian minority.

Wait it takes two to compromise, and a Supreme Court pick is really important . What did the Democrats offer McConnell in exchange for Garland hearings?

He already has, in a talk at the Federalist Society last year, where he said that if given the chance to replace a SCOTUS justice in 2020 he would not hesitate.

EDIT: And again, just over an hour ago, McConnell promised that he would have a vote on a new justice within a week of receiving the nomination.

Meanwhile, Murkowski of Alaska announced she would not support confirmation hearings until after the election.

And in other related news, Senate Democrats have promised to add seats to the Supreme Court if they win the Presidency and Senate in November and McConnell goes ahead with his plans...

The next few months are going to be exciting.

Well, it's not like this flip-flop would be in the top 10 of his list of shameless actions... From his point of view, the majority of the country already hates him anyway, and sure, it's a few weeks of bad press from the predictable wing, but in the end he'll (hopefully for him) have pushed his cause (making the conservative grip more concrete) forward.

The progressives will rage on Twitter, but on the day he goes back on what he said in 2016, Mitch is going to have a pleasant dinner with company that will agree with him, and he's going to fall asleep just fine, because he's convinced (or twisted the truth to convince himself) he's doing the right thing, and those who disagree with him are the ones who are un-American...

I think he's probably making calls and planning meetings for tomorrow with the R's on the wall about nominating a SCOTUS judge this soon, as we discuss here on HN. I have no doubt he's had this planned for years and is ready to execute his plan.

He did make such a statement months ago.

I'm somewhat curious how much deference and respect the administration will grant her. Basically how many days before they start pitching their nominee.

Edit: Fwiw, the RBG movie about her is on Hulu now.

They already pitched nominees because they knew she was dying. So zero respect.


It isn't about respect. The upcoming election may be disputed in court and the Administration wants to have as many judges on its side as possible. Even if there is no election related court challenge, there are many investigations of the current administration ongoing and it would be helpful to have more conservative justices for insurance.

The upcoming election will only be disputed by one side, because the other side will have such a clear majority that a dispute is practically impossible.

Both sides have lists for judges not just for the supreme court but all federal courts. Its easier to keep a up to date list then to try to figure out a list when there is a vacancy. They will also often reveal the list or parts of it to get other people's opinions.

I suppose, but the number of days before they bring a nominee to the floor seems a more direct measure.

You know they dont respect her at all and they'll replace her as soon as feasible. This is a political win they can't ignore and people being offended won't change that in the least

You are completely right, I don't know why people are downvoting you.I predict they'll have someone nominated and approved and sitting on the seat within a month. All legistlation will be dropped until this matter is complete. No stimulus checks, no help for businesses, everything else just dropped to Ring2 and getting a new SCOTUS judge is in Ring 0

> All legistlation will be dropped until this matter is complete. No stimulus checks, no help for businesses, everything else just dropped to Ring2 and getting a new SCOTUS judge is in Ring 0

All that stuff is held up in congress - they need the senate judiciary committee and the senate to approve a judge. That's it.

People are downvoting because they're unhappy with the situation but my stating it gives them a target. But on the other hand, I'm not super worried about internet points.

There's a possibility of a block of republicans who are anti trump (romney, collins, murkowski at least) might try to spike it, but McConnell has already said Trump's nominee will get a vote. I guess we'll see if they can cooperate enough to push it through.

Grassley, Murkowski, Collins, and Graham have said they oppose a vote, but that might be lip service and there's a difference between "opposing a vote" and not voting. And pence gets a tie breaker if its a tie.

"romney, collins, murkowski" ... appreciate the hint. Researching that now. My humble apologies for HN blindly downvoting you. Is asked because I don't have a hard preconceived notion, and wanted replies like yours.

Honest curiosity and debate is tricky business here.

People read intention and emotion into statements of fact or opinion based on their own mental situation, and there are a lot of people who are unhappy about this right now and downvoting something you don't want to happen is a way to 'vent'.

But I think Trump will nominate someone and they'll be approved by Senate, perhaps making Trump the most impactful president in terms of the judiciary in recent history.

Three supreme Court judges, roughly a quurter of all federal judges(194) of which 50 something are appeals court judges,and a hundred something district judges (that's not that many). They're fairly young for judges as well.

It's dark times for democrats as a conservative judiciary is going to be around for a while now.

If Trump wins another term and they republicans hold the Senate conservative judges being appointed will continue for another 4 years.

> even she would’ve known it’s at best a wish and nothing else.

It's specifically her dying wish. IMO she's giving Senators who still support democracy something they can say to the press when they decline to vote to fill her seat.

What do you mean "even she"? She literally said it was a wish!

Yep a wish. Like magic. I mean to say that even she knows that our constitution isn’t written for wishes.

I say this as a completely dejected person knowing that the Republicans will fill that seat with another solidly conservative judge, not out of glee.

I wouldn't count on any politicians in our current government caring one little whit about that… :(

Also reported by NPR in the original post:

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

Can you imagine a 4-4 Supreme Court deadlock in a Bush v Gore type situation?

Can you imagine a 5-4 Supreme Court ruling, where the breaking vote comes from a judge appointed by the candidate whom the court declared the winner?

Guess it’s back to civil war then.

In all the reading I’ve done on that case, it really seems like the biggest mistake the SCOTUS made was accepting the case in the first place.

Why would you say that? They took the case to assure that outcome in my opinion.

Then we would defer to the ruling of the lower court.

[removed] It will be tough, but maybe they could

He released the list back before Kavanaugh. He recently updated it.

Yes... the article is about the new, updated list as of last week.

Trump released a list before he was even elected.

Why would they wait for the things you think are more important that don't have anything to do with it?

Republicans have a majority of the Senate judiciary committee and the Senate. They have it if they want it without involving stimulus or anything to do with Congress.

Note that "until a new president is installed" means until 2024 if Trump is reelected.

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