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Just now, Widbil83 said:

Reid and the Democrats are the ones who did this. McConnell and most of us even warned  it would turn out this way. He’s just playing by the rules set up by Reid and the Democrats who destroyed this norm (like they do with most things). 

Yes. And Reid will say he did it because he was frustrated with the GOP, and round and round we go. It's a fool's errand to attempt to identify the Original Sin.

We need Reagan/Gorbachev-type summit(s) to end the partisan arms race.

Unfortunately, that would require one party to take a short-term political hit, but regain the moral high ground by resisting the inevitable counter-escalation in response to the latest partisan power maneuver.

McConnell recently had that oppty and he blew it. Now the Dems have a similar oppty.

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Yes.  If MT believes he was wrong to be angry at someone's stupidity, that's fine.  But I think he could reasonably be angry instead at someone's callousness and lack of empathy. I've been extrem

I’ve hinted at this before, but I’m not sure I’ve been explicit about it... I was molested when I was a child. The preparator was an older person in my neighborhood.  My parents were friends

So it is early.  But for those of us who did not sleep, it is late. And survivors and their family members have told their tales in here, and rent the hearts from our very chests, and opened eyes that

22 minutes ago, Widbil83 said:

Reid and the Democrats are the ones who did this. McConnell and most of us even warned  it would turn out this way. He’s just playing by the rules set up by Reid and the Democrats who destroyed this norm (like they do with most things). 

This is just repeating a false narrative.   Reid did nothing with regard to Supreme Court justices.  Reid's action has resulted in the current Senate seating a ton of federal court judges, but has no bearing whatsoever on Garland or the three Trump appointees.

If you apply this logic, than packing the court is the right next step, because of what McConnell did with regard to Garland and ACB.

 

Edit:  Reid getting rid of the filibuster for federal appointments was stupid, but McConnell's actions regarding the Supreme Court are his own, and are purely political, if not retaliatory.   If you view those actions as appropriate, than you should be in favor of packing the court, which is the logical next step in this back and forth.

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4 minutes ago, jm192 said:

The system is fine.  

The people are the problem.  

The people are certainly a massive problem, and they are exposing some flaws in the system.  Congress isn’t headed in a good direction, and hasn’t been for quite some time.  Corrections need to be made.  

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5 minutes ago, Ramblin Wreck said:

If one wants to claim McConnell "stole" a seat have at it.  By putting 4 on your side because of that, it's absolutely retaliation on steroids.  If that side wants to do it then have at it.  Just spare the rest of us all the moral high ground bullcrap they usually serve up about doing the right thing, fairness, and all the other crap they spew.

 

Looking at the events of Garland/Gorsuch in a vacuum, I dont believe the seat was "stolen". I believe that Garland should have been given a hearing and that (in an ideal world) everyone would have gone into it with an open mind. But at the end of the day, the Republican Senate Majority was under no obligation to confirm him. 

But when you combine it with the fast tracking of the ACB confirmation, it came across as a BS goal-post moving tactic (Obama's nominee 10 months before the end of his presidency is no less credible than a Trump nominee with < 3 months to go in his term, even if another term is still possible). And again, the Republicans could have saved themselves some (not all, but some) grief if they had just allowed Garland hearings and voted against him. We'd likely be in the same spot that we're in today and lots of reasonable people (myself included) would have been ok with it.

Agree that stacking the court with 4 new Biden nominees would be the nuclear option. And I dont think that will happen. All that does is ensure that the Republicans will do the exact same thing next time around, which doesn't really help anybody.

I like the idea of expanding the court, but as someone suggested earlier.....not doing so until after the 2024 election. Give the winners of the following 2 elections 2 appointments each and then institute rolling term limits for Justices going forward to ensure that each administration gets 2 appointments. (with some sort of language in place to rearrange things in the event a Justice dies before their term is up. Maybe the president gets scheduled appointments after 1 year and after 3 years to lower the risk of an an "unscheduled" need for replacement)

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39 minutes ago, jm192 said:

I think absent the Democrats hate Republicans and Vice Versa world we live in today, the system works.  

I think the problem lies in the fact that ardent partisanship -- at the expense of working towards the greater good -- has become the system.

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6 hours ago, whoknew said:

Can we talk about the actual SCt decision yesterday? It doesn’t make sense to me to not allow ballots that are postmarked before 11/3 but received after. 
 

Having said that, I’ve read a lot of articles on the decision and haven’t been able to find the language of the WI law. Does anyone have it?

Kavanaugh is getting a lot of criticism for his concurrence. I’d just like to know the statute before I can criticize or not. 

Quote

The ballot shall be returned so it is delivered to the polling place no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector's residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.

 

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21 minutes ago, Maurile Tremblay said:

I believe that legislation has already been passed.

Rubio introduced a constitutional amendment.   It has zero chance of going anywhere.

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2 hours ago, yak651 said:

Sad that supreme court is politicized.

This is why "I'm voting for this presidential candidate instead of that one because this one will appoint Supreme Court Justices whose rulings I'll like better" is a huge pet peeve of mine.

There's a very good reason why federal judges aren't elected by voters. Acknowledging this, voters should respect the fact that they're not supposed to choose judges. The natural implication is that voters shouldn't choose judges indirectly by electing presidents on the basis of whom they'll appoint as judges.

The federal judiciary has been inappropriately politicized in a number of ways. IMO, any presidential candidate who runs on a platform of promising to nominate politically attractive judges, and any voters who respond favorably to that kind of campaign, are part of the problem.

It's complicated, though, and it's tough to blame the voters themselves.

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11 minutes ago, Maurile Tremblay said:

This is why "I'm voting for this presidential candidate instead of that one because this one will appoint Supreme Court Justices whose rulings I'll like better" is a huge pet peeve of mine.

There's a very good reason why federal judges aren't elected by voters. Acknowledging this, voters should respect the fact that they're not supposed to choose judges. The natural implication is that voters shouldn't choose judges indirectly by electing presidents on the basis of whom they'll appoint as judges.

The federal judiciary has been inappropriately politicized in a number of ways. IMO, any presidential candidate who runs on a platform of promising to nominate politically attractive judges, and any voters who respond favorably to that kind of campaign, are part of the problem.

It's complicated, though, and it's tough to blame the voters themselves.

I can't say that I agree with this.  For better or for worse, picking judges is one of the job responsibilities of the president.  I think it's fair to take into consideration how a particular candidate might choose to approach that aspect of his job.  Not so much along the lines of "I want justices who vote this particular way on this particular issue that I happen to care about," but more like "I want justices who share my general philosophy about constitutional government." 

I do agree that voting for a lousy candidate just because you think he'll appoint judges that you like is a pretty lame rationale.  I would rather have spent the last four years governed by Biden with three young RBG clones appointed to the court than to have had to put up with four years of Trump, who I think has been very bad for the country for a myriad of reasons that I won't bother to repeat.  SCOTUS just isn't that important in the overall scheme of things, although nobody ever wants to admit that.

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3 hours ago, jm192 said:

At no point have I pontificated on the number of SCOTUS Justices and thought 9 is just perfect.

I think nine is a pretty good number, though a decent case could be made for eleven or thirteen.

I think it's fairly obvious that the number should be odd rather than even.

Smaller numbers help keep oral arguments sane.

Larger numbers reduce the political power of any individual justice, reduce the possibility of getting quirky majority opinions due to small sample size, and probably keep the court more politically balanced on the whole.

I think we're already taxing the sanity of oral arguments at nine justices. The other factors might justify going to eleven or thirteen, but I don't think it's super obvious that nine is too few.

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Layperson's understanding here...

But If I am reading all of this correctly then the WI ruling seems like it was pretty simple. State decided that the ballots need to be in by 8pm election day because that is what law says. A federal court went the other way and said no, you have to extend, because covid. Appeals court overturned that ruling saying it usurped the state's authority to set election laws and that this violated a supreme court precedent of not interfering too close to an election. Supreme court then decided the same. 

Seems kavanaugh is catching a lot of flack for his comments re: "late arriving ballots". People saying absentee ballots arriving many days later in other states as proof that late arriving ballots happen often. This seems misguided to me since those arent late arriving ballots in the context of the laws of those states. Whereas in WI anything after 8pm is. 

 

 

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8 minutes ago, Maurile Tremblay said:

I think nine is a pretty good number, though a decent case could be made for eleven or thirteen.

I think it's fairly obvious that the number should be odd rather than even.

Smaller numbers help keep oral arguments sane.

Larger numbers reduce the political power of any individual justice, reduce the possibility of getting quirky majority opinions due to small sample size, and probably keep the court more politically balanced on the whole.

I think we're already taxing the sanity of oral arguments at nine justices. The other factors might justify going to eleven or thirteen, but I don't think it's super obvious that nine is too few.

Nine is really quite a lot for oral argument.   I've argued in front of the 9-member Washington Supreme Court, and as soon as they start asking questions your argument is derailed and you have to work very hard to get back to your most important points.   If one justice is particularly interested in a tangential issue, it is unlikely you'll ever get back to your substantive argument.  I can't imagine what it would be like trying to argue in front of 13 justices.

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5 minutes ago, IvanKaramazov said:

I can't say that I agree with this.  For better or for worse, picking judges is one of the job responsibilities of the president.  I think it's fair to take into consideration how a particular candidate might choose to approach that aspect of his job.  Not so much along the lines of "I want justices who vote this particular way on this particular issue that I happen to care about," but more like "I want justices who share my general philosophy about constitutional government."

There's a continuum...

"I'm voting for Smith because he promised only to nominate judges who will (uphold/overturn) U.S. v. Doe."

"I'm voting for Smith because he released a list of judges he'll pick from, and I approve of the judges on the list. A vote for Smith is a vote for those judges."

"I''m voting for Smith because I know that he's a fan of (originalism/textualism/pragmatism/structuralism/whatever) when it comes to constitutional interpretation and so am I."

"I'm voting for Smith because I trust him to nominate competent, honest judges whose favored modes of constitutional interpretation are within respectable bounds whether or not I agree with those modes or their expected outcomes."

I am condemning only the first two. The third is unobjectionable. The fourth is admirable -- though generally not actionable because nearly every candidate passes that test. (Even Trump, based on his first-term appointments.)

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3 minutes ago, Maurile Tremblay said:

There's a continuum...

"I'm voting for Smith because he promised only to nominate judges who will (uphold/overturn) U.S. v. Doe."

"I'm voting for Smith because he released a list of judges he'll pick from, and I approve of the judges on the list. A vote for Smith is a vote for those judges."

"I''m voting for Smith because I know that he's a fan of (originalism/textualism/pragmatism/structuralism/whatever) when it comes to constitutional interpretation and so am I."

"I'm voting for Smith because I trust him to nominate competent, honest judges whose favored modes of constitutional interpretation are within respectable bounds whether or not I agree with those modes or their expected outcomes."

I am condemning only the first two. The third is unobjectionable. The fourth is admirable -- though generally not actionable because nearly every candidate passes that test. (Even Trump, based on his first-term appointments.)

That works.  Thanks for clarifying.

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1 hour ago, -fish- said:

Nine is really quite a lot for oral argument.   I've argued in front of the 9-member Washington Supreme Court, and as soon as they start asking questions your argument is derailed and you have to work very hard to get back to your most important points.   If one justice is particularly interested in a tangential issue, it is unlikely you'll ever get back to your substantive argument.  I can't imagine what it would be like trying to argue in front of 13 justices.

Isn't it common wisdom that oral argument is pretty much just a spectacle anyway though?  I've always been told and believed, by the time they get to argument, the decisions have been made based on the briefs in most cases.  That was certainly my experience many moons ago when I was a law clerk.

 

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6 minutes ago, CletiusMaximus said:

Isn't it common wisdom that oral argument is pretty much just a spectacle anyway though?  I've always been told and believed, by the time they get to argument, the decisions have been made based on the briefs in most cases.  That was certainly my experience many moons ago when I was a law clerk.

 

I have seen oral argument seem to sway decisions.   In my case, the trial court had ruled in our favor and the court of appeals had reversed, so my assumption was that it was a close issue.   During oral argument, one justice asked very pointed questions of the opposing counsel and his argument fell apart.   The issue the justice focused on was a secondary issue in my brief, but when I saw that  was where they wanted to go, I made it the focus of my rebuttal.   The final ruling covered both the main and secondary issues.

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5 hours ago, Shula-holic said:

Isn't that what the House of Representatives is for though?  Every state has its own interests and the Senate was a way to make sure that they had a say in the federal system of government.  Even back then the states were never equal on population.

If you dig minority rule. Let’s make the House have some role in the Supreme Court then let’s talk. Dems have won the popular vote six out of seven presidential elections but we have a 6-3 conservative majority. If it was the other way around conservatives hair would be on fire. 
 

I think we all understsnd the fundamentals of government but one side is abusing them. 

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26 minutes ago, Jackstraw said:

If you dig minority rule. Let’s make the House have some role in the Supreme Court then let’s talk. Dems have won the popular vote six out of seven presidential elections but we have a 6-3 conservative majority. If it was the other way around conservatives hair would be on fire. 
 

I think we all understsnd the fundamentals of government but one side is abusing them. 

I think though....the only one you can even remotely cry foul on is Garland; and that idea of being robbed would be reduced even further if McConnell allowed a vote.

I don't think Kennedy would have retired if Clinton won.  It's kind of my understanding that Kennedy retired with the demand that  Kavanaugh got his seat.

Even RBG....I get not wanting to walk away; but if she were worried about the sanctity of her "seat" she could have walked away during Obamas early years.

I don't really like defending Trump era Republicans.......but I blame the Democratic voter for them not having a 7-2 majority on the SC.  

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3 hours ago, Maurile Tremblay said:

This is why "I'm voting for this presidential candidate instead of that one because this one will appoint Supreme Court Justices whose rulings I'll like better" is a huge pet peeve of mine.

There's a very good reason why federal judges aren't elected by voters. Acknowledging this, voters should respect the fact that they're not supposed to choose judges. The natural implication is that voters shouldn't choose judges indirectly by electing presidents on the basis of whom they'll appoint as judges.

The federal judiciary has been inappropriately politicized in a number of ways. IMO, any presidential candidate who runs on a platform of promising to nominate politically attractive judges, and any voters who respond favorably to that kind of campaign, are part of the problem.

It's complicated, though, and it's tough to blame the voters themselves.

Definitely complicated. There are sound reasons why judges are nominated by the executive branch rather than chosen by voters. But the fact that who is chosen has become such a politicized factor -- indeed, a weapon -- by the executive branch points out the need for reform to restore what I believe is intended balance.

To carry on your continuum metaphor, at the other end of that spectrum you have an executive branch who acts on the premise of "I'm nominating Smith (as wqell as Jones and Jackson) because I know he/they will form a majority opinion that will uphold/overturn Roe v. Wade" when that upholding/overturning is opposed to what the majority view on that ruling is. 

Ideally checks and balances help with this, but we've seen very clearly that these checks and balances leave a lot to be desired. Where the judiciary is able to make and enforce law counter to what the majority of Americans feel is reasonable and just, it starts to get dangerous.

At the end of the day, you need different viewpoints to be represented in the highest court in the land for the very reason that the diversity ideally brings better decisions. What we seem to have, in my opinion, is a system that works against ensuring that diversity and balance is present and preserved in favor of partisan political aim.

 

2 hours ago, parasaurolophus said:

Layperson's understanding here...

But If I am reading all of this correctly then the WI ruling seems like it was pretty simple. State decided that the ballots need to be in by 8pm election day because that is what law says. A federal court went the other way and said no, you have to extend, because covid. Appeals court overturned that ruling saying it usurped the state's authority to set election laws and that this violated a supreme court precedent of not interfering too close to an election. Supreme court then decided the same. 

Seems kavanaugh is catching a lot of flack for his comments re: "late arriving ballots". People saying absentee ballots arriving many days later in other states as proof that late arriving ballots happen often. This seems misguided to me since those arent late arriving ballots in the context of the laws of those states. Whereas in WI anything after 8pm is. 

 

 

Isn't the issue that ballots postmarked on or before election day that arrive after midnight on election day are now not obligated to be counted?

Kavanaugh's ruling that “States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election” seems to work both ways -- NOT counting votes that meet the letter of the law as they were mailed in prior to the deadline and delivered afterwards (whether because COVID prevented many from voting in person, they were slow to be delivered thanks to real or manufactured mail disruption, etc.) sews just as much suspicion of impropriety IMO.

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1 hour ago, Jackstraw said:

If you dig minority rule. Let’s make the House have some role in the Supreme Court then let’s talk. Dems have won the popular vote six out of seven presidential elections but we have a 6-3 conservative majority. If it was the other way around conservatives hair would be on fire. 
 

I think we all understsnd the fundamentals of government but one side is abusing them. 

I just dig the federalist system of government we have. 

I agree Garland should have been brought up for a vote, but nothing else here screams abuse to me.  I also know that the Republican Senate would have voted "no" on Garland.  So while the initial problem here is procedural, I don't think anyone on the left would have been happy with that result either.  If you want to go a step further and say well that is a problem, yes I believe it is.  It is a problem when senators only vote for nominees of their own party.  I don't know that I'd call that abuse as much as I would hyper-partisanship.  I think most of our problems today are due to that rather than our form of government.

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1 hour ago, Stompin' Tom Connors said:

To carry on your continuum metaphor, at the other end of that spectrum you have an executive branch who acts on the premise of "I'm nominating Smith (as wqell as Jones and Jackson) because I know he/they will form a majority opinion that will uphold/overturn Roe v. Wade" when that upholding/overturning is opposed to what the majority view on that ruling is. 

Ideally checks and balances help with this, but we've seen very clearly that these checks and balances leave a lot to be desired. Where the judiciary is able to make and enforce law counter to what the majority of Americans feel is reasonable and just, it starts to get dangerous.

What the majority wants is supposed to be irrelevant to how judges decide constitutional issues. The whole point of the "constitutional" part of a constitutional democracy is that the majority is prohibited form censoring stuff, from establishing state religions, from enacting cruel punishments, etc., no matter how popular those things are. Judges are given lifetime appointments precisely because they're supposed to be insulated from the popular will, and to uphold constitutional principles without being constrained by what the majority of Americans feel is reasonable and just.

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1 hour ago, Stompin' Tom Connors said:

Kavanaugh's ruling that “States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election” seems to work both ways -- NOT counting votes that meet the letter of the law as they were mailed in prior to the deadline and delivered afterwards (whether because COVID prevented many from voting in person, they were slow to be delivered thanks to real or manufactured mail disruption, etc.) sews just as much suspicion of impropriety IMO.

It would be crazy for Kavanaugh or any federal judge to order NOT counting votes that meet the letter of the law. There's no way that would get five votes on the Supreme Court, I hope.

In this case, as I understand it, the question was whether votes postmarked before the election (but arriving afterwards) should be counted even though they don't meet the letter of the law.

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7 hours ago, sho nuff said:

about as many as posted that the people do support it...point was, calling it all the will of the people on adding seats and citing a poll doesn't really mean much...our country isn't and shouldn't be governed by polling.

 

I agree!

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2 hours ago, Jackstraw said:

If you dig minority rule. Let’s make the House have some role in the Supreme Court then let’s talk. Dems have won the popular vote six out of seven presidential elections but we have a 6-3 conservative majority. If it was the other way around conservatives hair would be on fire. 
 

I think we all understsnd the fundamentals of government but one side is abusing them. 

not agree.  not even close.

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2 hours ago, Jackstraw said:

If you dig minority rule. Let’s make the House have some role in the Supreme Court then let’s talk. Dems have won the popular vote six out of seven presidential elections but we have a 6-3 conservative majority. If it was the other way around conservatives hair would be on fire. 
 

I think we all understsnd the fundamentals of government but one side is abusing them. 

1.  It's never been majority rules.  The electoral college and Senate exist to give all states SOME say.  If California gets 40 million says and Delaware gets 1 million says...well Deleware really isn't any part of the equation.  California writes the laws, appoints the judges.  Delaware gets what it gets and it doesn't throw a fit.  People keep arguing about popular vote, but popular vote isn't the system.  And if you're from California or New York, it makes sense to argue for it.  But the smaller states have a part in our federal government with the present system.  

2.  Saying conservatives hair would be fire seems to imply that they would handle this poorly and the Dems have somehow handled it with grace.  Yet, the Dems on the Judiciary committee skipped the vote.  Not one voted to confirm an immensely qualified woman.  And now prominent Dems are screaming to expand the courts.  

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3 hours ago, Stompin' Tom Connors said:

Isn't the issue that ballots postmarked on or before election day that arrive after midnight on election day are now not obligated to be counted?

Kavanaugh's ruling that “States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election” seems to work both ways -- NOT counting votes that meet the letter of the law as they were mailed in prior to the deadline and delivered afterwards (whether because COVID prevented many from voting in person, they were slow to be delivered thanks to real or manufactured mail disruption, etc.) sews just as much suspicion of impropriety IMO.

The bold is the wrong way to frame it. They are never counted in WI. There is no "postmarked by" option. Any ballots received after 8pm on election day, are never counted.

A federal judge overturned a state law and picked 6 days after as an arbitrary deadline. 

Kavanaughs point is made considering that. 

Lets say Trump wins WI by 100 votes on election day, 8pm. Then 5 days later 101 ballots show up for Biden. They are now allowed to be counted. Biden wins. 

A federal judge literally would have decided a state by overturning state law. 

Under current law those ballots are never counted. They do NOT meet any "letter of the law" unless you think a federal judge should be able to write state election laws.

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43 minutes ago, Maurile Tremblay said:

What the majority wants is supposed to be irrelevant to how judges decide constitutional issues. The whole point of the "constitutional" part of a constitutional democracy is that the majority is prohibited form censoring stuff, from establishing state religions, from enacting cruel punishments, etc., no matter how popular those things are. Judges are given lifetime appointments precisely because they're supposed to be insulated from the popular will, and to uphold constitutional principles without being constrained by what the majority of Americans feel is reasonable and just.

I get this. I don't disagree with that intent. But insulating SCOTUS from popular will yet not having similar intent to keep it free from the influences of government is likely also not the intent of this structure.

The way courts have been politicized, there seems to me to be way more potential for the state to influence the judiciary. An example of this is a party that runs a pro-life stance as part of its political platform, and wields the ability to create a SCOTUS majority with a potential aim of overturning a long-standing law like Roe v Wade. It can then enforce its viewpoint on a public that largely swings the other way, and scores political points with its minority constituents.

This overturn has not happened, to be sure. Though Trump hasn't been shy about signaling that with Barrett's appointment, this overturn can occur. 

This also certainly can cut the other way too should Democrats force a more liberal majority and impose their own agenda through the highest court in the land. 

The point being that if the idea was to insulate SCOTUS from the influences of popular will, seems to me they should be similarly insulated from the influences of church and or state (or in the example here, the comingling of both). 

I don't think that's happening.

37 minutes ago, Maurile Tremblay said:

It would be crazy for Kavanaugh or any federal judge to order NOT counting votes that meet the letter of the law. There's no way that would get five votes on the Supreme Court, I hope.

In this case, as I understand it, the question was whether votes postmarked before the election (but arriving afterwards) should be counted even though they don't meet the letter of the law.

I hope so too. However these days, I am not sure I can count on crazy not happening. Hope alone is not a good preventative strategy.

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3 hours ago, parasaurolophus said:

The bold is the wrong way to frame it. They are never counted in WI. There is no "postmarked by" option. Any ballots received after 8pm on election day, are never counted.

A federal judge overturned a state law and picked 6 days after as an arbitrary deadline. 

Kavanaughs point is made considering that. 

Lets say Trump wins WI by 100 votes on election day, 8pm. Then 5 days later 101 ballots show up for Biden. They are now allowed to be counted. Biden wins. 

A federal judge literally would have decided a state by overturning state law. 

Under current law those ballots are never counted. They do NOT meet any "letter of the law" unless you think a federal judge should be able to write state election laws.

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

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5 hours ago, Stompin' Tom Connors said:

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

I agree with the bolded part -- all things considered, it would be totally reasonable for a state to extend its deadline for accepting absentee ballots.  On the other hand, since we've all known about covid since March at the latest and since we've all known when election day is for years now, it's also reasonable just to stick to the law as written.  If I were a resident of WI, I would be fine with either approach.  

That's not really what this case was even about.  It's more about who gets to make that decision.  If the state legislature decides that the law is fine as is and opts to leave it along, should a state court be able to override that decision to establish new election procedures on its own?  And what role, if any, do federal courts play in this issue?  Those questions aren't unimportant -- they matter!  But it's just plainly wrong to frame the issue as if the supreme court was stepping in on its own to decide how states should handle absentee ballots.  That isn't what they're doing. 

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12 minutes ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

This is a good example of something that would warrant judicial intervention.

A less dramatic example would be something like a severe blizzard that hits WI today and effectively shuts down mail delivery.  There would be no time for the legislature to act before election day, so it would reasonably fall to a judge to figure out how to move forward with a fair election under those conditions.

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1 hour ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

What if a federal court intervened in a last minute federal decision? 

That doesnt seem very comparable. 

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1 hour ago, IvanKaramazov said:

This is a good example of something that would warrant judicial intervention.

A less dramatic example would be something like a severe blizzard that hits WI today and effectively shuts down mail delivery.  There would be no time for the legislature to act before election day, so it would reasonably fall to a judge to figure out how to move forward with a fair election under those conditions.

Seeing as the Wisconsin legislature has not passed a single bill in over six months, while a pandemic is raging through our state, yeah - one would hope the Court would step in at that point.

 

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9 hours ago, Stompin' Tom Connors said:

Does this apply to absentee ballots or any mail in ballots? 

I don't think a federal judge should be able to write state election laws.

I do think that allowing an extension given a huge influx of voting by mail -- absentee and otherwise -- due to COVID, combined with what appears to be specious influence on the speed and efficacy (or in this case lack thereof) of mail delivery, is a reasonable request.

But that's the law in WI.

There's the rub though.  Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.  If a State wanted to limit counted votes to votes received by a certain date, that's their law.  A court shouldn't allow for extensions.  If a State wanted an extension to be allowed, then it should be passed by their legislature.  To be fair, I'm jumping in mid-stream here and don't know what the laws of different States are with respect to voting laws, I'm speaking more theoretical of the duty of a court and State legislatures.   

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20 minutes ago, Snotbubbles said:

There's the rub though.  Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.  If a State wanted to limit counted votes to votes received by a certain date, that's their law.  A court shouldn't allow for extensions.  If a State wanted an extension to be allowed, then it should be passed by their legislature.  To be fair, I'm jumping in mid-stream here and don't know what the laws of different States are with respect to voting laws, I'm speaking more theoretical of the duty of a court and State legislatures.   

100%.  The question is not:  Is this a reasonable request.  

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2 hours ago, The Z Machine said:

What if Trump decided by Executive Order to furlough the entire Postal Service until Nov. 5th with the express intent to disenfranchise mail in votes?  Would you still support the federal courts not getting involved?

I think that's a vastly different example from what happened.  It's a hypothetical and it's not really comparable to the Wisconsin case.  

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40 minutes ago, Snotbubbles said:

Courts shouldn't be making decisions on what they consider is a reasonable request.  The Courts should be deciding what the State Legislature of Wisconsin has passed as law.

The first is sometimes a necessary element of the second. Courts presume that legislatures intend to be reasonable. If there's a typo in some legislation, for example, a court will give effect to what the legislature probably intended -- based on what would be reasonable -- instead of enforcing the typo as written.

Similarly, if a law has some crazy, unreasonable, obviously unintended effect in some situation because it simply neglected to account for the possibility of a severe blizzard, or a global pandemic, a court may avoid the unreasonable, obviously unintended effect the same way it avoids enforcing a typo.

I'm not commenting on the specific Wisconsin situation at issue in the recent Supreme Court decision -- just saying, as a general principle, that "what a court considers reasonable" and "what the legislature passed as law" are not always entirely separate inquiries.

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2 minutes ago, Maurile Tremblay said:

The first is sometimes a necessary element of the second. Courts presume that legislatures intend to be reasonable. If there's a typo in some legislation, for example, a court will give effect to what the legislature probably intended -- based on what would be reasonable -- instead of enforcing the typo as written.

Similarly, if a law has some crazy, unreasonable, obviously unintended effect in some situation because it simply neglected to account for the possibility of a severe blizzard, or a global pandemic, a court may avoid the unreasonable, obviously unintended effect the same way it avoids enforcing a typo.

I'm not commenting on the specific Wisconsin situation at issue in the recent Supreme Court decision -- just saying, as a general principle, that "what a court considers reasonable" and "what the legislature passed as law" are not always entirely separate inquiries.

True, but you're doing a "reasonable" analysis on what was written, debated and intended.  You're not doing the analysis as an addition to extend the law past it written intent.  So in this case, a deadline, the analysis would be whether the deadline was reasonable not on whether extending the deadline is reasonable.  If the deadline is unreasonable then you strike down the law and send it back to the State Legislature to cure, you don't add and extension because the court find the extension reasonable.   

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4 minutes ago, Snotbubbles said:

True, but you're doing a "reasonable" analysis on what was written, debated and intended.  You're not doing the analysis as an addition to extend the law past it written intent.  So in this case, a deadline, the analysis would be whether the deadline was reasonable not on whether extending the deadline is reasonable.  If the deadline is unreasonable then you strike down the law and send it back to the State Legislature to cure, you don't add and extension because the court find the extension reasonable.   

If a statutory deadline is found to be so unreasonable that it's illegal, a court wouldn't simply repeal the whole deadline until the legislature fixes it. (There has to be some deadline.) It would likely impose a reasonable deadline of its own until the legislature gets around to acting.

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6 minutes ago, Maurile Tremblay said:

If a statutory deadline is found to be so unreasonable that it's illegal, a court wouldn't simply repeal the whole deadline until the legislature fixes it. (There has to be some deadline.) It would likely impose a reasonable deadline of its own until the legislature gets around to acting.

[Grrr, you made me read the SC opinion]  The issues before the SC were 1) changing state election rules too close to an election; and 2) the judiciary usurping the state legislature’s authority to either keep or make changes to state election rules in light of the pandemic.

Gorsuch wrote in his concurrence: "The Constitution dictates a different approach to these how-much-is-enough questions. The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules. Art. I, §4, cl. 1. And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them.  Ibid. (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . ”). Nothing in our founding document contemplates the kind of judicial intervention that took place here, nor is there precedent for it in 230 years of this Court’s decisions."  I think we both agree on that.

Based on Kavanaugh's concurrence, I'm not sure the Court would repeal a deadline, even unreasonable, without a State Legislature having a reasonable time to cure the issue.  "In this case, however, just six weeks before the November election and after absentee voting had already begun, the District Court ordered several changes to Wisconsin’s election laws, including a change to Wisconsin’s deadline for receipt of absentee ballots. Although the District Court’s order was well intentioned and thorough, it nonetheless contravened this Court’s longstanding precedents by usurping the proper role of the state legislature and rewriting state election laws in the period close to an election."    

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16 minutes ago, Snotbubbles said:

Based on Kavanaugh's concurrence, I'm not sure the Court would repeal a deadline, even unreasonable, without a State Legislature having a reasonable time to cure the issue.

I haven't read any court's opinion about the Wisconsin thing, so I'm just discussing the general principle.

Suppose the Wisconsin statute had a typo so that the deadline to receive mailed ballots for the 2020 election was November 3, 2021. Somebody files suit six weeks before the election saying, "A deadline that's a year off seems kind of unreasonable, don't you think?"

The court is very likely, I believe, to fix a reasonable deadline of its own rather than just not doing anything until the legislature sees fit to act maybe sometime next year.

We're getting sidetracked, though. I don't think we're disagreeing about anything of imminent practical importance.

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