Octopus Overlords

PLW wrote:

Isgrimnur wrote:So he's a plajiurist?

Nope.. A playjurist.

I assumed that was the pun he was going for. But I'll give you a hand too.

Defiant wrote:

Kurth wrote: Definitely a safe bet on assuming unnamed experts on a topic are legit.

Well, only three of the six appear to be unnamed.

Great. So, just to recap, we have TPM reporting (in an article with the url,neil-gorsuch-plagiarism-book) that 11 years ago, Gorsuch copied a recitation of the facts of the 1982 court case, "Baby/Infant Doe," that originally appeared in a 1984 law review article.

On one side, we apparently have 3 named experts (taking your word on this) that characterize this from mere sloppiness to improper.

On the other, we have a law professor from Princeton who says there was nothing at all wrong with this, and, more importantly, the actual author of the 1984 article who says she sees no issue with this and that "these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language." This is hardly surprising, since in legal writing, when reciting the background facts of a case, it's not at all uncommon to do a cut and paste with minor editing.

Regardless, this has no relevance to whether Gorsuch is fit to be confirmed as a Supreme Court justice. It's just a smear.

I'm not trying to pick a fight with you, but I think you (and the authors of that TPM article) know this. Why spread it around like it's newsworthy?

I have a few hot button issues, and this Gorsuch confirmation issue touches on one of them. Without an independent judiciary, we are completely and totally screwed. It's one of the pillars of our government. The encroachment of hyper-partisan politics into the judicial confirmation process is a clear and present danger, and that's not limited to just the Supreme Court which gets all the attention. From judicial vacancies to attacks on the budget of the courts through sequestration, the independence of the judiciary has been under attack, and it's a huge problem.

Kurth wrote:Regardless, this has no relevance to whether Gorsuch is fit to be confirmed as a Supreme Court justice. It's just a smear.

I'm not trying to pick a fight with you, but I think you (and the authors of that TPM article) know this. Why spread it around like it's newsworthy?

If "cutting and pasting" without citation is common in the judiciary, then that action probably shouldn't prevent him from being confirmed (though it still deserves a rebuke), although the THEFT of a supreme court seat still should.

If it isn't common, then it may be a valid reason for blocking him (irregardless of the valid reason of blocking the THEFT of a supreme court seat)

I don't know if it is common or not, although the fact that there are experts with opinions on both sides suggests that there is debate, and that it is newsworthy.

I think that at a time where the Senate is split down the middle with a slight Republican edge, and with a President that lost the popular vote by millions of votes, it's perfectly reasonable to demand that a moderate candidate be placed on the court. Not someone who will likely become one of the more conservative judges as soon as he gets his robes.

Edit: having trouble with my link for some reason

Cutting and pasting is not common, but it may have been done by a law clerk.

The "conservative rating" bothers me less than Gorsuch's commitment to just "apply the law" without judgment or insight. The Supreme Court is asked to look at holes in the law and either go beyond basic principles or reconcile them. I may have disagreed with Scalia, but he was usually able to provide insight and judgments for his views.

I fear Gorsuch is going to be another Thomas.

Kurth wrote:

Pypercub wrote:
Incorrect. It's part of a larger game. The NYT has it right:

Republicans have benefited from their partisan approach. They won’t stop just because Democrats ask nicely and submit to Gorsuch. Democrats are right to force McConnell to be the one who takes the partisan step of eliminating the Supreme Court filibuster. Likewise, Democrats should be aggressive in blocking Trump nominees to lower courts.

Paeans to bipartisanship may sound good, but in this case they don’t ultimately promote bipartisanship.

It really is a matter of fighting fire with fire, and smearing the GOP and McConnell's name all over it.

I think this is absolutely wrong. The fact that the Republicans have benefited from their obstructionist bullshit does not mean the Democrats should do as they do. If you see someone cheating and getting away with it, does that mean you should start cheating as well? An elementary school kid knows the answer to that question almost reflexively.

Obstructing Gorsuch is flat out wrong. It's black and white.

The elementary school kid then gets his ass kicked by the popular kids. While I'm probably more righteously indignant than most, the Dems and liberals in general have ridden moral superiority into a country governed across the board by the now minority opposition.

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If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

Zarathud wrote:If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

Bingo. There's also this problem:

...two things happened: First, Republicans realized they’d radicalized their base to a point where nothing they did in power could satisfy their most fervent constituents. Then—in a much more consequential development—a large portion of the Republican Congressional caucus became people who themselves consume garbage conservative media, and nothing else.

That, broadly, explains the dysfunction of the Obama era, post-Tea Party freakout. Congressional Republicans went from people who were able to turn their bullshit-hose on their constituents, in order to rile them up, to people who pointed it directly at themselves, mouths open.

McCain doesn’t think the nuclear option is a good idea for the Senate, and wasn’t pulling any punches against those who think it would be a good move. “Whoever says that is a stupid idiot,” McCain told MSNBC.

link

Zarathud wrote:If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

That's not true. Taking the moral high ground (less self-righteously referred to as "doing the right thing") always matters even if it doesn't pay off in the short term.

Defiant wrote:

McCain doesn’t think the nuclear option is a good idea for the Senate, and wasn’t pulling any punches against those who think it would be a good move. “Whoever says that is a stupid idiot,” McCain told MSNBC.

link

Again, we have reached that point where I find myself agreeing with McCain and Lindsey Graham more often than not. Crazy.

Kurth wrote:

Zarathud wrote:If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

That's not true. Taking the moral high ground (less self-righteously referred to as "doing the right thing") always matters even if it doesn't pay off in the short term.

Although to me, this feels like the Prisoner's Dilemma game theory - you can play nice with the other person until one person breaks. Then you have to return in kind.

Kurth wrote:

Zarathud wrote:If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

That's not true. Taking the moral high ground (less self-righteously referred to as "doing the right thing") always matters even if it doesn't pay off in the short term.

We're getting into that blurry area of coffee shop philosophy where doing the right thing is going to result in wrong things being done. If that means that the only way to ensure the right thing gets done is to do the wrong thing, then I'm not sure we have a good solution anymore.

I'll also add that it is pretty much a forgone conclusion that the filibuster will die within the next year or two. By making this about Garland/Gorsuch it truly does illustrate that this is the high road. It also can make it even more about the high road if McConnell restricts the vote to supreme court justices and then does it again for tax cuts, or social security privatization, or something.

We have a reality TV President. We are so very far from the ideal world, regardless of party.

538 had a nice chat about, asking Is Filibustering Gorsuch A Smart Strategy For Democrats?

Max Peck wrote:538 had a nice chat about, asking Is Filibustering Gorsuch A Smart Strategy For Democrats?

Spoiler:

The panel pretty much split down the middle.

micah: Final score:

Pro-Gorbuster: 1.

Anti-Gorbuster: 1.

Totally wimped out: 2.

This split makes all the sense in the world to me. My main takeaway on the Gorbuster on this point is that it's odd how fired up a lot of people are about the filibuster on the democratic side (pro and con sides), when it's unlikely that there's going to be much difference in the outcome regardless of what the democrats do. Gorsuch is almost certainly going to be confirmed, and the judicial filibuster will almost certainly be abolished, either now or the next time it matters. Any differences between the outcomes based on the decision to Gorbuster or not are fairly long-term and speculative.

I'm mildly pro-Gorbuster, but it probably won't matter either way.

Defiant wrote:Not the Supreme Court, but...

A federal appeals court ruled for the first time Tuesday that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination, setting up a likely battle before the Supreme Court as gay rights advocates push to broaden the scope of the 53-year-old law.

The 8-to-3 decision by the full 7th U.S. Circuit Court of Appeals in Chicago comes just three weeks after a three-judge panel in Atlanta ruled the opposite, saying employers aren't prohibited from discriminating against employees based on sexual orientation.

The 7th Circuit is considered relatively conservative and five of the eight judges in the majority were appointed by Republican presidents, making the finding all the more notable.

Court: Civil Rights law prohibits discrimination of LGBT

And now...

A federal judge, in a first, ruled Wednesday that the federal law barring housing discrimination protects LGBT people.

Zarathud wrote:Cutting and pasting is not common, but it may have been done by a law clerk.

The "conservative rating" bothers me less than Gorsuch's commitment to just "apply the law" without judgment or insight. The Supreme Court is asked to look at holes in the law and either go beyond basic principles or reconcile them. I may have disagreed with Scalia, but he was usually able to provide insight and judgments for his views.

I fear Gorsuch is going to be another Thomas.

I think that is a distortion of his record:

https://fivethirtyeight.com/features/fo ... migration/

Yes, I think for any judge, you can cherry pick a few cases that make him looks bad, and I don't agree with Gorsuch's decisions on those couple of cases that have been used to cast doubt on hiim, but overall, I think he is a reasonable conservative pick.

I kind of softened on Gorsuch after reading about his primary religious affiliation, and his reaction to being asked if he'd rather face a hundred duck sized horses or one horse sized duck.

I feel we could have had far worse placed in front of us.

Well it looks like the Dems have one half day of headlines before they are replaced by Gorsuch confirmed and people move on. McConnell ain't fucking around. Hope it was worth it because it looks like bupkis from here.

Big picture view/story should be another norm tumbling as we fall further into disorder.

“We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster,” McConnell said, moments before rattling off procedural speak that set the rules change in motion.

Go fuck yourself turtle.

Kurth wrote:

Zarathud wrote:If taking the moral high ground mattered anymore, Trump would not be President and Mitch McConnell would not have a Senate majority.

That's not true. Taking the moral high ground (less self-righteously referred to as "doing the right thing") always matters even if it doesn't pay off in the short term.

The high road has been washed out. There's only one way into town now.

malchior wrote:Well it looks like the Dems have one half day of headlines before they are replaced by Gorsuch confirmed and people move on. McConnell ain't fucking around. Hope it was worth it because it looks like bupkis from here.

Big picture view/story should be another norm tumbling as we fall further into disorder.

Schumer waited years before he took his steps. McConnell waited an hour. He'll do it again for legislation q within the year, I guarantee it.

malchior wrote:

“We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster,” McConnell said, moments before rattling off procedural speak that set the rules change in motion.

Go fuck yourself turtle.

I am shocked, SHOCKED, to learn that there is partisanship in the Senate.

malchior wrote:Well it looks like the Dems have one half day of headlines before they are replaced by Gorsuch confirmed and people move on. McConnell ain't fucking around. Hope it was worth it because it looks like bupkis from here.

Big picture view/story should be another norm tumbling as we fall further into disorder.

Not kidding here, and I would like a lesson, cause I just don't see thing clearly on this...

Just what are the long term thoughts on all this. Spell it out for me as if I'm a child.

The irony is that in his pursuit of appointing a strict constructionist on America's founding principles to the Supreme Court, Mitch McConnell just completed shredding of those founding principles in the Senate.

Zarathud wrote:The irony is that in his pursuit of appointing a strict constructionist on America's founding principles to the Supreme Court, Mitch McConnell just completed shredding of those founding principles in the Senate.

Well....I mean, not really. The filibuster didn't exist in any form until 1913. Didn't take its current form (non-speaking, de facto vote requirement) until the 1970s, and then didn't become routine until the past couple decades. It's sort of funny when people act like the filibuster was passed down by George Washington and Thomas Jefferson or something.

There are the hopeful scenarios which are that the Senate will see this as crazy and start working together. That seems...pollyannish. That they are going to hold hands and act in a bipartisan way will require a standard that politicians nowadays don't seem capable of.

Long-term the future is obviously hazy but Democrats know that McConnell will do almost anything to win. He has demonstrated it over and over. He doesn't equivocate. Does that mean that he eventually kills the filibuster altogether? Probably not as the math currently stands. Instead you probably need to look down the road and think about what happens if they get 56 or maybe a few more votes in the mid-terms. At that point do the Dems go into full obstruction mode? If so, does he blow up the filibuster for legislation or other rules to move things along? It seems drastic but DC Circuit appointment obstruction -> filibuster removal for Appeals Judges -> Garland obstruction -> Gorsuch Filibuster -> filibuster removal for Supremes shows steady decline for norms in just the last decade alone.

That said, anything seems possible now and the sense that the Chamber is breaking down is real. The standard of conduct has declined precipitously over the last 2 decades with the last couple years being especially rough. The Senate always liked to be the high road chamber in conduct and posture. They were the elder statesmen to the children in the House but now they are playing many of the same games. The old joke that every Senator sees a President in the mirror is ringing true. With the increased politicization of the base they have an incentive to step it up to get their piece of the base.

Knowing that is what is at risk - will they start cooperating? They really can't or else their base will go crazy on them for those reasons above. Everyone is trapped by the political landscape. Plus the Dems are flat out just shit at politics. They can't put forth messaging around what probably would be popular ideas, they can't sell them to the public, and they consequently can't execute them. The Republicans keep beating them at that one aspect repeatedly. Moreover the House is broken completely due to the Hastert rule so they can be bipartisan as they want and still it won't get things done. So there is no incentive to do it. Congress is flat out busted.

And the Supreme Court is ultimately going to be more politicized and packed with less centrist judges most likely. Technical legal rulings will be still mostly a majority of the justices but the important social ones will be increasingly controversial and political. That will further undermine the credibility of the Court over time. That process has been underway since Gore vs. Bush with pit stops at Citizen's United, Kelo, and Shelby County.

The short of it is that this is all small ball stuff in the grand scheme. Instead it looks like systemic risk to the system for 'failing' keeps getting worse. Could it self-stabilize? Maybe but there is no indication it will. It has been steadily and increasingly gotten worse at delivering any improvements but for a very small and wealthy subset of the populace. Maybe they won't deliver terrible health care proposals like the AHCA but they sure as shit aren't going to fix the existing situation either while problems get worse. That inaction will necessitate crises/fire fighting efforts that could drastically change the character of this country. I know that is a bleak assessment but there is little positive to look at here.

I believe I heard McCain call it "the end of the Senate as we know it" (if they went nuclear).

Carpet_pissr wrote:I believe I heard McCain call it "the end of the Senate as we know it" (if they went nuclear).

And then he voted for it.

Seriously?! Wow.

Let me guess - "he had no choice" or some such bs justification?

Carpet_pissr wrote:Seriously?! Wow.

Let me guess - "he had no choice" or some such bs justification?

Haven't seen a quote - apparently he complained about it being 'a bad day for democracy' on the way in. that is a nebulous statement in itself but it was a party-line vote. All Republican Senators said yes.

El Guapo wrote:

Zarathud wrote:The irony is that in his pursuit of appointing a strict constructionist on America's founding principles to the Supreme Court, Mitch McConnell just completed shredding of those founding principles in the Senate.

Well....I mean, not really. The filibuster didn't exist in any form until 1913. Didn't take its current form (non-speaking, de facto vote requirement) until the 1970s, and then didn't become routine until the past couple decades. It's sort of funny when people act like the filibuster was passed down by George Washington and Thomas Jefferson or something.

This.

Grifman wrote:

El Guapo wrote:

Zarathud wrote:The irony is that in his pursuit of appointing a strict constructionist on America's founding principles to the Supreme Court, Mitch McConnell just completed shredding of those founding principles in the Senate.

Well....I mean, not really. The filibuster didn't exist in any form until 1913. Didn't take its current form (non-speaking, de facto vote requirement) until the 1970s, and then didn't become routine until the past couple decades. It's sort of funny when people act like the filibuster was passed down by George Washington and Thomas Jefferson or something.

This.

True enough. But my basic understanding is that the requirement to get 60 votes in the Senate to get anything done is one of the things that tended to distinguish the Senate from the uncivilized partisan warriors in the House. Now that we're heading to a straight simple majority vote, there's no requirement for the majority to ever really engage the minority to find some middle ground or compromise position. This change in the Senate rules seems to lead us further away from the path of centrist, bipartisanship.

104 years isn't enough? I mean, technically the filibuster has been part of the Senate longer than the universal right of women to vote in 1920 (19th Amendment).

I can't wait for the day when this rule change comes back to haunt McConnell, and he tells us all how wrong it is that we don't have the filibuster anymore for judicial nominees.

Zarathud wrote:104 years isn't enough? I mean, technically the filibuster has been part of the Senate longer than the universal right of women to vote in 1920 (19th Amendment).

It's just hard to see how a 104 year old rule -- that was created by an accident of procedure! -- can be regarded as one of the "founding principles" of an institution that's more than twice as old.

Kurth wrote:

Grifman wrote:

El Guapo wrote:

Zarathud wrote:The irony is that in his pursuit of appointing a strict constructionist on America's founding principles to the Supreme Court, Mitch McConnell just completed shredding of those founding principles in the Senate.

Well....I mean, not really. The filibuster didn't exist in any form until 1913. Didn't take its current form (non-speaking, de facto vote requirement) until the 1970s, and then didn't become routine until the past couple decades. It's sort of funny when people act like the filibuster was passed down by George Washington and Thomas Jefferson or something.

This.

True enough. But my basic understanding is that the requirement to get 60 votes in the Senate to get anything done is one of the things that tended to distinguish the Senate from the uncivilized partisan warriors in the House. Now that we're heading to a straight simple majority vote, there's no requirement for the majority to ever really engage the minority to find some middle ground or compromise position. This change in the Senate rules seems to lead us further away from the path of centrist, bipartisanship.

Again, not really. First, it's very very recent that you need 60 votes "to get anything done". The filibuster didn't exist before 1913, was rarely used before the 70s, and only in the last decade or two has been routinized and become virtually a de facto vote requirement. The Senate was supposed to be the more deliberative body (less close to the current passions of the people), to be sure, but that's because Senators were elected every 6 years instead of 2, were elected indirectly by the state legislature, and represented whole states rather than smaller groups in House districts.

The filibuster was most definitely not part of that. Again, because it didn't exist, and also because it was created by accident when Wilson wanted to get a bunch of senators to shut up about a wartime bill, and so they created a new motion (the cloture motion) to force an end to debate on an issue. It was never meant to force a higher vote threshold, just to control debate. And then it wound up evolving from there.

Incidentally, in terms of the right thing, proper procedure, etc., the strong argument is against the filibuster - if anything, the modern filibuster may well be unconstitutional. The constitution pretty clearly specifies the vote requirements for different items in the Senate - majority vote on almost all issues, but a 2/3rds requirements for votes on ratifications of treaties, conviction after impeachment, etc. So what provides the authority to say that certain types of legislation effectively require a vote threshold beyond what's clearly specified in the Constitution?

Now, to be sure at the moment I deeply value the filibuster on legislation. But the logical and historical support for it as it functions today is extraordinarily thin.

RunningMn9 wrote:I can't wait for the day when this rule change comes back to haunt McConnell, and he tells us all how wrong it is that we don't have the filibuster anymore for judicial nominees.

That's just politics as usual in the 21st Century. Just look at the liberal commentators who praised Democrats for getting rid of the non-Supremes judicial filibuster a few years ago and abhor McConnell for trashing the rest of it now.
Or, you know, Democratic senators doing the same thing.