Ruth Bader Ginsberg dies

Chips Lovell · 19-09-2020 7:02am #1

U.S. Supreme Court Justice Ruth Bader Ginsberg has died aged 87. I gather she's been battling cancer for a while.

Unfortunately her death may now trigger the mother of all political rows, since its around six weeks till the Presidential election. Last time around, there was some reluctance to confirm a new nominee to the court close to the election. Is this going to happen again?

touts · 19-09-2020 7:13am

Well it's certainly going to change the news cycle from Covid to a good old fashioned Republicans hate women vs Democrats hate babies debate. It's a gift for Trump in that sense but I suspect in the actual senate and house it will be harder to rally the troops this close to an election.

Inquitus · 19-09-2020 7:15am

A Tragedy, a disaster, RIP, and feck Mitch McConnell!

looksee · 19-09-2020 8:27am

She was an amazing, powerful woman who will be very much missed both personally and politically. RIP.

StringerBell · 19-09-2020 9:01am

A big loss, RIP RBG. A giant of a woman.

McConnell true to form announced he will move ahead swiftly with trump's nominee.

Melanchthon · 19-09-2020 9:43am

It's literally insane that she stayed in the position at her age and with her health problems until her death and one side cheers this on because they agree with her.

What I have never understood is why if it was about making sure her seat went to another liberal judge she didn't step down during Obama's term?

I have read online people saying it was because she wanted to have her replacement nominated by Hillary but she was already properly old and afaik had , had health scares, before the last year of Obama's term and historically generally after two terms in the other party wins and Trump wasn't even selected then.

In short I don't understand why she gets lauded for staying on into her old age when it seems like it was always going to risk loosing a progressive seat in the court which is apparently the important thing. Basically didn't she actually screw progressives rather than save them?
R.I.P

Ps I presume this is a Politics thread rather than a condolences one?

StringerBell · 19-09-2020 10:37am

I think it should highlight that if they are never going to bring in term limits which is obviously the thing to do. Then yes, when a justice hits a certain age, even 70+ they should probably seriously consider stepping aside and allowing a younger person of the same ideological point of view (or similar)

If RBG had gone during Obama's time and enjoyed her final few years in retirement there would be no threat to Roe v Wade etc that there is now. It is hard to argue against it, it is also hard to argue against bringing in term limits but seems easier to try to foster some kind of personal responsibility on the justices to agree to step aside at a certain time.

Edit: She doesn't get lauded for staying on, well she does get lauded for trying to hang in there till trump was gone of course and that there was a bad miscalculation made in terms of wanting to hang on so Hilary could pick her replacement is possible but unproven. She gets lauded (even trump has managed to praise her) for all the good she has done during her amazing life.

Shelga · 19-09-2020 10:42am

Melanchthon wrote: »

It's literally insane that she stayed in the position at her age and with her health problems until her death and one side cheers this on because they agree with her.

What I have never understood is why if it was about making sure her seat went to another liberal judge she didn't step down during Obama's term?

I have read online people saying it was because she wanted to have her replacement nominated by Hillary but she was already properly old and afaik had , had health scares, before the last year of Obama's term and historically generally after two terms in the other party wins and Trump wasn't even selected then.

In short I don't understand why she gets lauded for staying on into her old age when it seems like it was always going to risk loosing a progressive seat in the court which is apparently the important thing. Basically didn't she actually screw progressives rather than save them?
R.I.P

Ps I presume this is a Politics thread rather than a condolences one?

I never thought about it like that. Good point. Although, wouldn’t every ageing justice then just retire in the middle of the presidential term of the party they support, thereby ensuring they are replaced by another liberal/conservative justice?

It’s a very odd system. Surely term limits make more sense.

Timberrrrrrrr · 19-09-2020 11:14am

Couple of questions if I may

If Trump/McConnell nominate someone can they then change their mind or does it have to go to a vote straight away?

My (muddled) thinking is will they nominate someone soon and hold off appointing them to see how the election goes?

Can they nominate a "mild" conservative now and if Trump wins then appoint but if Trump loses can they change their mind and nominate/appoint a rabid "god fearing, gun loving, pro life MURCA YEAHHHHH!!!" kind of conservative to thwart the Dems for years to come?

Also if they appoint before the election (highly possible) and Trump loses by a narrow margin can they use the SC to somehow get the results overturned? I know this shouldn't be able to happen bit with the current state of US politics nothing would surprise me.

Melanchthon · 19-09-2020 11:22am

Shelga wrote: »

I never thought about it like that. Good point. Although, wouldn’t every ageing justice then just retire in the middle of the presidential term of the party they support, thereby ensuring they are replaced by another liberal/conservative justice?

It’s a very odd system. Surely term limits make more sense.

True I hadn't thought about that it would comment the current make up as they would all start doing it.
That said I think a lot people down play her age as it was used by conservatives as a talking point, if she had retired at 80 nobody would have batted a eye and that would have been securely in Obama's term.
That's a reason why I am skeptical of hagiography about her, she was a smart woman, how did she not forsee this?

Melanchthon · 19-09-2020 11:29am

Timberrrrrrrr wrote: »

Also if they appoint before the election (highly possible) and Trump loses by a narrow margin can they use the SC to somehow get the results overturned? I know this shouldn't be able to happen bit with the current state of US politics nothing would surprise me.

Would kauvanagh go for that, hasn't he been a fair bit more moderate in his actual decisions than liberals portrayed. Similarly for Neil Gorsuch.

This article makes the point better than I can (with my lack of knowledge) that liberal judges actually vote together more often than conservatives

https://eu.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/

StringerBell · 19-09-2020 1:29pm

Gorsich has been your typical conservative justice, not so much kavanaugh no. He's a theocrat.

Melanchthon · 19-09-2020 1:35pm

StringerBell wrote: »

Gorsich has been your typical conservative justice, not so much kavanaugh no. He's a theocrat.

I know that was the fear but has he had any actual rulings that have been controversial that way?

StringerBell · 19-09-2020 1:40pm

Melanchthon wrote: »

I know that was the fear but has he had any actual rulings that have been controversial that way?

Yep.

Melanchthon · 19-09-2020 1:42pm

StringerBell wrote: »

Yep.

I'm not American so don't follow this stuff full time but do you have some examples?

Brussels Sprout · 19-09-2020 1:52pm

My understanding is that Kavanaugh has so far been more liberal than expected. Obviously it's early days but it seems highly unlikely that he's going to be the next Clarence Thomas which is what the left/right feared/hoped he would be.

Actually here's a graph that pretty much shows this:

As can bee seen from the above most justices tend to become more liberal with time. The theory is that they move to Washington D.C. for the job and end up moving in social circles that are more liberal than where they came from which influences their way of seeing the world.

Clarence Thomas is an obvious exception to this. His wife is a signed up MAGA devotee and apparently he records Rush Limbaugh's show every day so that he can listen to it.

StringerBell · 19-09-2020 2:12pm

Clarence Thomas is the nightmare alright but he isn't a theocrat really I don't think.

@the poster who asked me for examples I'll come back to you this evening I'm on the road and on the phone right now but yes his decisions especially compared with gorsich and when he has written minority opinion displays his thinking. Will post in detail when I'm at the laptop

StringerBell · 19-09-2020 5:16pm

Melanchthon wrote: »

I know that was the fear but has he had any actual rulings that have been controversial that way?

As its not looking like Ill be home anytime soon Ill give you something to search for yourself if you want to.

Cases that spring to mind were the LGBTQ one, the Native American one, the DACA one and that Louisiana abortion one, particularly his written dissent in that.

Gorsuch on the other hand is very much a constitutionalist type conservative. The law is the law, get that right and the chips fall as they may kind of thinking. He has been aligned with the most conservative and the most liberal of the justices depending on the issue and what the legal framing is.

I don't think either of them are trump lackeys at all I should make that clear. I don't doubt their motivation as judges, I would disagree with their judgement separately and together often and I see a clear divide between them in terms of one being more theocratic though. In general the conservative christians and theocrats had a pretty good term in the Supreme Court this time round when you look at the workplace discrimination case concerning I believe it was called Our Lady of Guadalope? also the contraception access one involving the nuns and the funding for religious schools case.

I will throw up some links and that when I have proper access

Manic Moran · 21-09-2020 3:14pm

That chart is going to make me go look up Douglas.

StringerBell wrote: »

it is also hard to argue against bringing in term limits

Two obvious arguments.
The first is that if you have term limits, then you have judges on the bench who have an eye on "what happens to me in two years when my term limit is up?" A life appointment means that there is no chance that they are going to be ruling with one eye on keeping options open for future employment.
The second is that if you have, say, a 10-year term limit, every single senate is going to be confirming two judges. A 15-year term limit, every single Presidential term will be confirming two judges.

The last couple of elections, we've had a number of fairly old judges which we knew were likely to be replaced this Presidency. Judges were something of a thing in the election campaign. The chances are that next term, there is a good chance of Breyer, and maybe Thomas leaving the bench, but he seems healthy enough. If both are replaced, then there is little chance of another SCOTUS vacancy for a couple of election cycles.

If you have a term limit, then every single damned election becomes an election about judges. To hell with things like national policy, it becomes "who will our President and Senators put on the bench next?" We need to get back to nominations and confirmations based on qualifications, but that hasn't happened in two decades and I don't see that changing any time soon.

AbusesToilets · 21-09-2020 3:22pm

Manic Moran wrote: »

That chart is going to make me go look up Douglas.

Two obvious arguments.
The first is that if you have term limits, then you have judges on the bench who have an eye on "what happens to me in two years when my term limit is up?" A life appointment means that there is no chance that they are going to be ruling with one eye on keeping options open for future employment.
The second is that if you have, say, a 10-year term limit, every single senate is going to be confirming two judges. A 15-year term limit, every single Presidential term will be confirming two judges.

The last couple of elections, we've had a number of fairly old judges which we knew were likely to be replaced this Presidency. Judges were something of a thing in the election campaign. The chances are that next term, there is a good chance of Breyer, and maybe Thomas leaving the bench, but he seems healthy enough. If both are replaced, then there is little chance of another SCOTUS vacancy for a couple of election cycles.

If you have a term limit, then every single damned election becomes an election about judges. To hell with things like national policy, it becomes "who will our President and Senators put on the bench next?" We need to get back to nominations and confirmations based on qualifications, but that hasn't happened in two decades and I don't see that changing any time soon.

The counter argument to that, is by making it a regular and predictable occurance, it no longer becomes such a life and death battle. Both parties will recognise that they will get opportunities to appoint judges on a relatively frequent schedule, so there's not the same pressure that happens currently. You'd be closer to the more bipartisan standard that existed in decades past.

Brussels Sprout · 21-09-2020 3:35pm

Manic Moran wrote: »

That chart is going to make me go look up Douglas.

Ha. That was my exact reaction. Never heard of him before. Seems to have been an interesting character.

osarusan · 21-09-2020 3:37pm

Manic Moran wrote: »

If you have a term limit, then every single damned election becomes an election about judges. To hell with things like national policy, it becomes "who will our President and Senators put on the bench next?" We need to get back to nominations and confirmations based on qualifications, but that hasn't happened in two decades and I don't see that changing any time soon.

Maybe for a while, but it would become less frenetic as time went on, and the importance of each appointment would be diminshed accordingly, as they are no longer there for life.

And term limit doesn't necessarily mean every 4 years, it could be every 10 or whatever.

But tbh, if they haven't done it by now after however many hundred years, I doubt they will.

Rjd2 · 21-09-2020 4:06pm

RBG died on the job and despite disliking his politics its quite possible that Thomas will do the same, if that shouldn't convince you of term limits nothing will.

coylemj · 21-09-2020 4:52pm

Rjd2 wrote: »

RBG died on the job and despite disliking his politics its quite possible that Thomas will do the same....

+1 I'd say that as long as Thomas' wife is alive, he won't be stepping down. She's more conservative than him and even with a Republican in the WH, she wouldn't countenance him being replaced.

Does anyone know how many African-Americans are on that list (drawn up by the Federalist Society) that Trump said he would use for appontments to the SC?

Manic Moran · 21-09-2020 4:55pm

osarusan wrote: »

Maybe for a while, but it would become less frenetic as time went on, and the importance of each appointment would be diminshed accordingly, as they are no longer there for life.

They may no longer be there for life, but their rulings will be, unless SCOTUS starts to overrule precedent more often, which is a possibility with a less stable court. There isn't going to a 'less important' appointment. In the last ten years (The shortest 'term' people seem to be proposing), how many important rulings have happened with Sotomayor, Kagan, Gorsuch, and Kavanaugh? (Sotomayor just broke 10 years last month, but the court hasn't been in session since then)

And term limit doesn't necessarily mean every 4 years, it could be every 10 or whatever.

You misunderstand that one.
If they are on a ten year term limit, then assuming that they are split evenly, you're going to get one of the 9 judges up for replacement every year, with a leap year on the 10th. Every senate will thus normally vote on two per term. Every senator (they are elected for six year terms) will thus be responsible for voting upon 5 or 6 judges. That's a lot of influence.

If they are split unevenly (eg no replacements for 8 years, then half of the judges get replaced at once), the election season for that term of both the President and Senate is going to be insane.

coylemj wrote: »

+1 I'd say that as long as Thomas' wife is alive, he won't be stepping down. She's more conservative than him and even with a Republican in the WH, she wouldn't countenance him being replaced.

Does anyone know how many African-Americans are on that list (drawn up by the Federalist Society) that Trump said he would use for appontments to the SC?

Doing a quick search down the list earlier this month, Daniel Cameron (Current AG of Kentucky), Robert Young (Formerly Michigan Supreme Court) are African-American. Ho and Thapar are Asian. Muniz and Lagoa are hispanic. Of that lot, only Lagoa and Thapar seem to have a shot.

osarusan · 21-09-2020 5:05pm

Manic Moran wrote: »

They may no longer be there for life, but their rulings will be, unless SCOTUS starts to overrule precedent more often, which is a possibility with a less stable court. There isn't going to a 'less important' appointment. In the last ten years (The shortest 'term' people seem to be proposing), how many important rulings have happened with Sotomayor, Kagan, Gorsuch, and Kavanaugh? (Sotomayor just broke 10 years last month, but the court hasn't been in session since then)

I don't really see what difference it makes. Their rulings being there for life (forever) is not different to now, whether the judges are there for life or not. But it means that the judges only get a defined amount of time to make those decisions.

Manic Moran wrote: »

You misunderstand that one.
If they are on a ten year term limit, then assuming that they are split evenly, you're going to get one of the 9 judges up for replacement every year, with a leap year on the 10th. Every senate will thus normally vote on two per term. Every senator (they are elected for six year terms) will thus be responsible for voting upon 5 or 6 judges. That's a lot of influence.

If they are split unevenly (eg no replacements for 8 years, then half of the judges get replaced at once), the election season for that term of both the President and Senate is going to be insane.

I thought that by term-limit you were going by presidential term limits.

Obviously, with even a 10-year limit, there will be more changes than when they are there for life.

It's a lot of influence, but no different in influence to appointing one judge who will be there for 30 years or whatever.

Manic Moran · 21-09-2020 5:21pm

osarusan wrote: »

It's a lot of influence, but no different in influence to appointing one judge who will be there for 30 years or whatever.

The difference isn't in the amount of influence overall, but instead over just how much influence there is at any particular time. Donations for Democrats just shot up over the weekend due to the fact that a judge is about to replaced over which the Democrats have no practical control. The influence of the court on elections is obvious. When you have a situation where every single election actually does have significant influence over the makeup of the court, things will just get worse as a constant. At least the current way, it looks like there are more going to be pulses where it's quite important, vs times when we can actually pay more attention to other factors of policy.

osarusan · 21-09-2020 5:36pm

Manic Moran wrote: »

The difference isn't in the amount of influence overall, but instead over just how much influence there is at any particular time.

Agreed, more ferquent periods of influence, but the nominations have influence for a shorter time.

If the argument is that these frequent nominations would have an impact on elections and so on, that's not a flaw of term limits themselves, it just highlights the extent to which it has become politicised, although it is incredibly politicised as it stands.

Quin_Dub · 21-09-2020 5:44pm

Not that it would ever happen , but take the picks away from the President and have them selected by an independent review board (perhaps made up of retired judges) along with the Term limits.

The main problem is Judicial positions being handed out by the leader of a political party and not being chosen purely on their legal experience and insight.

AbusesToilets · 21-09-2020 6:50pm

Quin_Dub wrote: »

Not that it would ever happen , but take the picks away from the President and have them selected by an independent review board (perhaps made up of retired judges) along with the Term limits.

The main problem is Judicial positions being handed out by the leader of a political party and not being chosen purely on their legal experience and insight.

It's a good idea, but then you'll just have the parties battling over the committee, or appointing more partisan judges at Lower levels.

Brussels Sprout · 22-09-2020 11:25am

Quin_Dub wrote: »

The main problem is Judicial positions being handed out by the leader of a political party and not being chosen purely on their legal experience and insight.

I think it may have worked in the past. In theory there's a nice symmetry to it. One of the three branches of government nominates members of another branch to be confirmed by the members of the third branch. Checks & balances and all that lark.

Like most things in US politics it has completely collapsed due to partisanship and the increasingly dominant power of the Executive branch. In the past the Senate quite often shot down presidential nominees if they felt that they were not suitably qualified for the role. It even happened during Bush II's time when he tried to nominate some crony of his who wasn't even a judge.

Nowadays you get the feeling that if Trump really did nominate someone unqualified like current Senators Tom Cotton or Ted Cruz that they'd end up being confirmed.

Ruth Bader Ginsberg dies

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