This really has been the year from hell.

Yesterday, I wrote that this year’s election will be an inflection point for America. That observation became infinitely more acute with the news that Ruth Bader Ginsberg had died. Mitch McConnell didn’t even wait for her body to cool before announcing that he would abandon his invented (Trumped-up) position that Justices shouldn’t be replaced during the last year of a presidential term, and would move quickly to replace her with yet another “conservative” Justice.

The quotation marks around conservative are intentional, because what McConnell and his GOP ilk are hell-bent on “conserving” is white Christian male privilege. They certainly aren’t interested in extending or conserving the values embedded in the Constitution.

As I sat down to write this, I thought about a line that Mayor Pete often used during the primaries: “I’m mindful every day that my marriage exists by the grace of one vote on our Supreme Court.” That observation about the importance of the Court isn’t limited to the ruling about same-sex marriage. Women who are able to exercise control over their own reproduction, people in interracial marriages, people who can get health insurance despite having pre-existing conditions–the list of the very concrete ways in which Supreme Court decisions affect all of us is long.

Self-styled “conservatives” like to insist that they are originalists. But the real originalists are those like the indomitable RBG, who are faithful to the values the Bill of Rights was intended to protect. An originalism that insists on limiting the application of those protections to the world inhabited by the Founders would be unworkable (which is why self-proclaimed originalists like Scalia frequently departed from them.) True originalism requires that we look at the values the Founders were trying to protect–our ability to communicate free of government control, freedom from state-imposed religious observance (impelled by respect for the integrity of the individual conscience), our right to “due process of law” and other rights of self-determination. To be a true originalist requires continuing to protect those values and expand their application in a world the Founders could never have envisioned.

Ruth Bader Ginsberg was a champion of that genuine “originalism.” 

So–now we face another hugely consequential “inflection point.” The moral pygmies who obey McConnell will move to replace her with yet another tool of reaction. I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.

Speaking of ifs:

If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.

That expansion, and a number of other court reforms have been advocated by legal and judicial scholars for several years–not just during our Trump/McConnell nightmare. The reforms should be crafted with one overriding purpose: to remove the judicial system from partisan politics–from being seen as a “prize” to be co-opted by whichever party wins an election– and return it to its intended purpose of dispassionately interpreting the law. As Jill Lepore recently warned, the Court is in danger of becoming an instrument of the executive instead of a check against it. 

Judges will always have their own beliefs, and will always bring those beliefs to their jobs. There will always be Justices with whom we disagree. If the people we elevate to the bench are the best and brightest, however, those disagreements will be principled. McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.

Ruth Bader Ginsberg became an icon because she was so superbly qualified, so intellectually powerful, and so obviously a person who exhibited decency, integrity and civility.

If she is replaced with yet another partisan hack, all bets are off.


  1. “If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.”

    Or would that simply expand the chances for “conservatives” to increase their number when in the majority?

    “McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.”

    I believe we are in this current chaotic and disastrous position because there appears to be no way to force elected members of Senate and House of Representatives to uphold their Oath of Office to protect this country and support the Constitution of the United States of America. McConnell simply refused to allow the Senate to hold required hearings on President Obama’s nominated federal court appointees and other bills and apparently the Constitution offers no way to change this current status. Such as the few hundred House bills sitting on his desk for the past year. His mass of Trump’s judicial appointees are going to lead to stopping civil rights cases in their lower courts to prevent being heard by the Supreme Court.

    The entire Congress has allowed religion to become part of this government; technically allowed because Amendment I states “Congress shall make no law respecting the ESTABLISHMENT of religion, or prohibiting the exercise thereof,….” Semantics! Government stayed out of religion but welcomed religious dogma into the government,including case decisions before the Supreme Court. Will increasing the number of Judges on SCOTUS help or hinder?

    Ruth Bader Ginsberg is the primary example of maintaining the lifetime appointment but Clarence Thomas and Brett Kavannaugh are primary examples to end it.

  2. “I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.”

    It’s no longer a Republican Party, but a Fascist Trump Party. Any Republican senator who doesn’t understand that will be “toast.”

    Read “The Useful Idiot: How Donald Trump Killed the Republican Party with Racism and the Rest of Us with Coronavirus” by veteran reporter S.V. Date (Self- published, September 4, 2020)

  3. Along with expanding the size of the Court, perhaps its approach could be changed, to reflect how appeals courts work. Three judges hear a case, and if the plaintiffs want to appeal, they can ask the entire court to meet “en banc” to hear it. That might speed up the decision process for the Court.

  4. Is there a process to remove these unfit Federal judges that this administration has shoved through the confirmation process?

  5. A self-described “originalist” is one who believes that cases should be decided based on what he or she THINKS the founders SHOULD have intended in the original Constitution, even if they didn’t really.

    Coincidentally, as fundamentalist Christians they interpret The Bible exactly the same way.

    #RIPRGB ❤️

  6. Justice Ginsburg (note the spelling) tried so hard to hang on for us. She just ran out of time. She will be missed more than she could have imagined. She knew what Mad Mitch and “the occupant” would try to pull. To no one’s surprise, they’re doing it. Rest in peace, Justice Ruth Bader Ginsburg.

  7. This current Republican effort to seat a new justice on the Supreme Court is going to be like trying to navigate a mine field. From past observations neither Mitch nor Donny is good at this sort of thing. Mitch prefers to just wait until someone else clears the field while Donny Boy stomps right in, blows up a few friends and enemies then retreats and changes the subject.
    Do not give up, dear friends. The weeks ahead may be terrifying, but our future is not lost.

  8. Justice Ginsburg disagreed with those who want to expand the court. I agree with her. If you want to assure competence, the best way is to require a two thirds majority vote in the Senate in order to confirm. We would also need to require a floor vote. We absolutely know that Hillary would still be waiting to fill any position without that requirement.

    Jane, it is possible to impeach justices and any other member of the federal judiciary.

  9. “A man is only as good as his word.”

    I’ve watched Mitch and Lindsey on Twitter since RBG passed away. Watching them rationalize away their hypocrisy is staggering. Mitch is a sociopath, so it’s easy for him. I believe Lindsey suffers since he has a conscience. He must drink heavily or use pills to numb his anxiety from continually lying.

    Those politicians who are “on the fence” are merely fundraising. Once they reach a sufficient amount of $’s, they will change their mind accordingly.

    RBG should have retired during the Obama administration and lived peacefully in retirement. Now her body and her position are being ripped apart by wolves in suits. A feeding frenzy by immoral men and women has pursued. It’s pathetic to watch.

    In one breath, we exclaim being the most exceptional country on the planet, and in the next, we fight over the power manifest in a jurist on the supreme court. I bet her family and leadership in other countries must be appalled at what they witness in the USA.

  10. I know that Justice Ginsburg tried to stay alive until after this election since I have heard she planned to retire if Hilary Clinton won in 2016. I am sad that she was not able to do so. Mitch McConnell is superb at abusing power. If the SCOTUS is to remain balanced, I, like you Shiela, believe the only way to do that is to increase the number of justices on the SCOTUS.

  11. Todd,

    While I mostly disagree with how you tar everyone in politics with the same brush, today you hit it out of the park!

    Graham is Trump’s bitch. McConnell is a doddering old ideologue who has only the desire to leave his legacy on the Senate’s history. Too bad that legacy will smell like an open septic tank.

    I don’t know if the balking Republican Senators will end up “going along”, because the smell of Trumpism and McConnell’s obvious schoolyard power play will cling to them like white on rice. They’re on shaky ground, politically, as it is. Romney no longer fears Trump or the GOP management. Since McConnell has no moral compass, no respect for either the Constitution or the rule of law, he will charge ahead with his Federalist Society whackos and try to force a vote.

    Can you see the hearings? Senator Harris, for one, will skin whoever the whores of Trump put up. Frankly, I don’t think it will get that far.

    I thought I couldn’t be frightened any more about Trump’s lunacy, but while reading Woodward’s “Rage”, I almost panicked. Many people throw words around, like “psychopath”, including me. This book filled with interviews, i.e., first-hand accounts, scared the crap out of me. Trump is not only an intellectual coward, he is SO deeply disturbed that having him fondling the launch codes should terrify all mankind.

    In Darwin’s world, those creatures and plants that don’t adapt to a changing environment that threatens their current status, die off. Trump is like a volcano exploding on a small island that wipes out ALL living things by not giving them the time to adapt. How do we clever humans fix that?

  12. Indeed this is the year from hell.

    I don’t have much to add, other than I’m very tired of sitting on the sidelines hoping that people will do the right thing and feeling powerless when they don’t.

    It’s a reminder about a previous post I made – to have a seat at the table you actually have to win elections. No amount of policy ideas, ideological purity, etc. matters if your candidate can’t actually win.

  13. It’s been said before that culture is not a legal issue, that what creates culture is how we behaved in the past. I, as one who has said that, now accept that it is not accurate. The existence or nonexistence of certain legal issues can, over time, destroy culture to be replaced by an unknowable new culture.

    The conservative based laws on the current books and through the judicial process, and the act of changing government behavior that served us in the past created the cultures that we see in the country right now. That may or may not have been the intention of those who legislated and judged them to be Constitutional

    The question is, is that what we want? Does this serve the Constitution and we the people?

    I look around and see nothing but failure. I see it being excused by lies blaming others. The states and people united have all but disappeared. The regard for our country around the shrunken world is measurable at an all time low. Our adaptation to what we know is our future is in reverse. More Americans have lost their lives by government apathy this year than nearly ever before except for the last time we went through a similar wreckage of culture, the Civil War.

    Scientists and engineers expend a great deal of effort thinking about and tracking down assignable cause. When something in a process is creating an undesirable effect, what is it exactly that the certain knowledge of will lead to the path of fixing things. Our ability to do that for the country is obscured by an avalanche of lies created to obscure our failure to keep up with reality and blame to assign the wrong cause.

    Conservative thinking is based on the assumption that government cannot improve the lives of anyone; that we are unable to even imagine much less create better; that today is the peak of human existence and the path from here must be downhill.

    You know what? We can and are making that come true.

  14. Mitch has finally outdone Trump on my “enemies of the people” index. Trump is too dense to think up all the undemocratic responses to the Founders’ views of how to flesh out Athenian democracy in the Constitution of 1789 and especially the Bill of Rights two years later, whereas Mitch is intelligent – but to nefarious ends.

    He with truckloads of PAC money will be tough to beat in Kentucky and if he wins will be a thorn in the side of the Democratic majority in that body as minority leader, assuming Democrats are in the majority. Like Trump, he is money hungry and has been one of several senators (along with Graham and other Republican solons) who have taken money from Russia in Putin’s continuing efforts to destroy the West’s democratic underpinnings, but his announced intention to have a vote on Ginsburg’s successor this near the election after the Garland atrocity is the last straw. Count me as an enemy of the enemy of the people.

  15. It grows ever clearer that the DDD (damn dumb Democrats) are inferior to the RR (righteous Republicans) in only one important respect – their inability to wield power in their own interest. Democrats are morally and ethically superior to the competition. The apply empathy to their judgments in nearly every situation. They understand how government can help people more and corporations less. They feel compassion for the suffering of others. They mostly wish to uplift the downtrodden. They honor the rule of law and the struggle for justice in all their forms. Yet, unlike the RR who feel that their mindless form of degradation and corruption should be made permanent and shared with all mankind, the DDD do little or nothing to assure that their good works will prove resilient.

    Yes, the DDD occasionally win elections, but they use their offices so naively and fecklessly that they most waste their brief periods in power. I yelled at Obama almost every day of his last year in office to hit the road and show the country how Mitch McConnell was subverting the constitution by not allowing nomination hearings for Merritt Garland. Obama ignored me and others with clearer voices about the need to draw a clear picture of what was happening. We will now pay an enormous price for that inaction. Except for renaming postal facilities, 2012 until 2016 was a period of near total stasis sponsored by McConnell when it was clear that he, more than Obama, controlled what government would and could achieve. Why was Obama weak and today’s idiot-in-chief is omnipotent?

    From Reagan through Bush II and up to today the clearest objective of Republicans was the dumbing down of America – their most successful program ever. And it is yielding them enormous benefits. And how did the DDD go about opposing that? Or did they? We are now challenging the RR’s flame thrower with a plastic squirt gun – i.e., we will raise hell about RBG’s successor until she (Trump says the nominee will be a woman) takes her oath of office. Our only hope for saving the Republic from a drift toward troglodytism is Chuck Grassley ? God help us.

    Winning isn’t enough. If we ( the DDD) are successful in November, the RR have a four-year tea party planned for us in which they will strive to convince America that we are undermining their world – and they are good at hosting these kinds of parties. Few of the DDD will walk away from that soiree – and none will walk away unscathed unless we take a far more proactive role in using power on behalf of the American people instead of , like the RR, against them. Is an antiquated Biden up to the challenge? He claims Obama as his mentor, so that’s a really apt question.

  16. I liked living in a world that included RBG. She was an excellent representative for humanity. (The simple fact that she could get along well with Scalia, despite the way he thinks about the world and her positions, shows that she is a far, far better person than I. It was both horrific and aspirational.) In particular, my daughters have the chance to grow up in a significantly more fair and just world due to her works.

    The world is less bright without her. My sorrow is deep.

  17. P.S.: Trump is nothing without McConnell. Therefore, the best way to make sure Trump leaves office when the voters tell him to is to defeat McConnell. Please compute your net worth and send half of it to Amy McGrath.

  18. Sorry for a brief religious interlude from an agnostic.

    The Rabbi at the Temple I attend with my brother and his family wrote a piece in the local Jewish press about “sin”, suggesting a basic misunderstanding. “Sin offerings” were offered for “inadvertent sins” – i.e. for mistakes. The term “repent” in Hebrew is based on the word “turn”. His basic message was that “sinning” is missing the target in our behavior and “repenting” is learning from our mistakes and correcting our behavior. He ended by quoting an American political scientist, Benjamin Barber. I won’t repeat the long quote, but to paraphrase, the world in not divided between sinners and non-sinners, but between those who learn from their mistakes and those who refused to learn (we know which side our current Glorious Leader falls on).

    I try to be the learner. Based I what I have learned —

    Sorry, Peggy, but a 2/3 requirement for confirmation will not lead to the best justices. At best, it will lead to the least offensive, least controversial; at worst it would lead to no action – or to Clarence Thomas (“I dare you to vote against a Black man”). You don’t discuss Marquis of Queensbury rules when your opponent thinks it’s a gun fight.

    I also have to disagree with Sheila. I see one, two, or three of the conservative Democrats voting against expanding the courts. First, we pass D.C. statehood and offer it to Puerto Rico – Fast track – new Senators on January 1, 2022, elections in November, 2021. Then, we might have a Senate that is more able to accomplish things. We must assume there are only two years for big changes, and unless there are big changes that people can appreciate, that will be a certainty.

    We should add as many lower court judges as possible, including appellate judges. That will not meet with such resistance. Then, pass as many bills as possible – hundreds and hundreds. The Fearless Leader/Tea Party Court can only overturn so many laws in on session, and the day that a law is overturned, the Democrats should ram through a revised law for Biden to sign within a couple of days.

    That is the course the Democrats should chart after election day. Before election day, they should quote Mayor Pete, remind women that dogmatic, white men will have total control over their bodies – abortion, birth control, and health – remind African-Americans that police (or any white person) will be able to kill them with impunity, and remind every Latino (of all origins) that they may be stopped and assumed to be a “Mexican rapist” (Yes, even you, Cuban-American) because of how they look (and they better carry their US Passports with them – which will be assumed to have been forged anyway).

    I found it curious that the crowd at the Supreme Court Building decided to sing Amazing Grace, but — they didn’t know the words to Kaddish.

    Justice Ruth Bader Ginsburg, may her memory be for a blessing — and a revolution.

  19. The GOP also seems to be up to another trick:

    Voters have elected their senators in the privacy of the voting booth since 1913. The framers of the Constitution, however, did not intend senators to be elected in this way and included in Article I, section 3, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years; and each Senator shall have one Vote.”

    Just recently though, Sen. Ben Sasse proposed a slew of major changes to the Senate this week — including a repeal of the Constitutional amendment that provided for direct election of its members.

    The Nebraska Republican said in an interview that he recognizes it could take many years to implement the major overhaul he has in mind.

    “Coercive federalism means that we still pretend to the American people that the Unicameral matters, but really huge, huge shares of what the Nebraska state Legislature wrestles with every year is a Medicaid program that they don’t really have much power to reform,” Sasse said.

    I suspect reform of Medicaid would mean it’s elimination, or more hoops and hurdles to access Medicaid.

    Back in the days of Newt Gingrich, we ignored the stirrings of what would become the Tea Party and the modern day GOP. The GOP who for years raged against deficit spending have been totally silent on the Trumpet’s explosion of deficit spending. This proposal by Sasse may seem to be absurd, so did the election of The Trumpet and Pastor Pence.

    I feel confident the gerrymandered Indiana Legislature would be delighted to select our Senators, it would be the Electoral College at a state level.

  20. I know this will not be popular on here, but Democrats deserve a lot of blame for the condition of our Supreme Court and the lower federal courts.

    At some point, Democrats began to go around Congress and state legislatures to use the federal courts as a way to enact liberal policies via the guise of interpreting the law/constitution. Their judicial activism has turned our courts, in particular our Supreme Court, into mini-legislatures. Of course, judicial activism in our nation’s history has not always been confined to liberals. Conservatives have at time pushed for judicial activism and we’re seeing that starting again.

    Judges should not be using their position to enact preferred policy choices via interpretation of the law/constitution. Judges should be umpires, not players in the game. If the law is silent as to X, judges should leave it to the democratic branches as to how to handle X.

    So too do Democrats deserve a huge share of blame for the politicization of the confirmation process. What the Democrats did to the highly qualified and respected Robert Bork set the stage for confirmations to no longer be about qualifications, but preferred policy outcomes. Then things got worse when they personally went after Clarence Thomas. They actively sought out dirt on Thomas by putting ads in magazines encouraging accusers to come forward. They went through Thomas’ garbage looking for damaging information. They went to video stores to get a list of videos Thomas rented. They finally settled on a never before asserted sexual harassment allegation by Anita Hill, an allegation that many Democrats in the Senate did not buy. (Polls at the time showed Thomas and not Hill was believed – even among African Americans – and Thomas ended up winning ELEVEN Democratic votes for his confirmation.)

    Things didn’t get any better when Democrats used an extremely factually shaky allegation about Kavanaugh to try to derail his nomination. There were a lot of reasons to oppose the Kavanaugh nomination, but an allegation about something that supposedly happened at a party 30 plus years earlier, for which there were no witnesses and the sole witness offered contradictory details, is not a valid reason.

    Not to say the event did not happen. But in this country we don’t assume things happened then require the accused to prove it did not. (Proving a negative is next to impossible.) Even though it was not a criminal proceeding, Kavanaugh deserved to be assumed to have not done what he was accused of doing, especially when the allegation was over 30 years old and had never come up before during any of his confirmations.

    These confirmation battles would stop being so contentious if judges would get out of the policy-making business and return to their intended role of being umpires. I know that’s an ideal for which we’ve often fallen short, but that doesn’t mean we shouldn’t strive to nominate jurists who believe in that ideal.

    Okay, let the abuse for my views begin…

  21. What did you expect those on the Democrats side to do when they saw that the Republicans were moving toward fascism by embracing the Moral Majority, then the Christian Coalition, and finally, the Tea Party? Fall over dead.

  22. The Democrats didn’t start this catastrophe. The Republicans did. And now there are no more Republicans, just FASCISTS. Take a good look in the mirror.

  23. Paul,

    This terrible, terrible situation, all started from a lecture that I gave based on my senior thesis at the University of Pennsylvania in 1959. It was on accounting for gold and silver. From that lecture, a radio program was created on the same subject. Next came an attempt to corner the silver market which failed. Then the cornering turned into the political arena with the attempt to corner the Jews, which has never stopped.

    This is nothing new. There’s always the Jews, if you need a scapegoat for your troubles.

  24. What a show we are putting on for other world leaders, from a head-shaking Merkel to a jubilant Putin, who is saving billions in spy and military costs via bribes of American senators while here we give away our medical care allocations to the offense, I mean, defense industry. Putin could not write a better script, nor could Xi, so while we play the short game of instant gain leaders such as these play the long game while watching our democracy unravel and while waiting for our people (fed by Trumpists and his political enablers) to fully and finally lose all faith in what their government can or will do for them, at which time the Putins and Xis of this world can figuratively if not actually march in and feed on our self-imposed ruins.

    A dour report, but the good news is that it doesn’t have to be this way. We can elect Democrats across the board shortly and outdo FDR with a new New Deal that goes for single payer healthcare coverage, an $18.00 an hour minimum wage, unionization, college debt forgiveness etc. We need to take a lesson from the Republicans on just how to do this, going for the jugular rather than by increments. It is time to catch up with the rest of the Western World, preferably its Nordic sector, where all prosper, and if such should occur, we will have followed the Founders’ wish for a future necessarily unknown to them at the time and will have once again restored trust in a government that works for all of us and not just the greedy few.

  25. We’re witnessing a modern-day Coup de’ etat; We’re “frozen” and unable to match-up. Trump’s forces are gaining more and more control of the internet, much like the situation Curzio Malaparte warned about, back in 1932, in his famous book, “Technique of the Coup d’Etat.”

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