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So, now for my Supreme Court thoughts, so long they need to be its own comment. In truth I’ve been wanting to post a lot of these SOMEWHERE, so this is a bit therapeutic to get it all out there. Unfortunately, due to waiting so long, it’ll probably be seen by not many people. Oh well!

I seem to be in the minority, but I do not think Ginsburg was, as you claim, “desperately trying to stay alive and cover up the extent of her illness to the public as she fought a return of what turned out to be lethal pancreatic cancer. All she wanted was to survive until Joe Biden could win the election and replace her… but she didn’t make it.” I have no doubt that Ginsburg would have preferred that Biden replace her than Trump. However, I do not think she was simply trying to stay alive with that goal. Indeed, if that WAS the goal, some of her decisions do not make much sense, such as continuing to want to join deliberations and write opinions while she was recovering from illness. The smarter choice regarding health would be to skip out on those for a while.

Here’s my take: I think if Hillary had won, Ginsburg still wouldn’t have resigned. She would have kept going. She’s repeatedly said she would keep doing the job as long as she thought she could do it, and I believe her. Admittedly, in the alternate world where Hillary won, I think the Republicans (if they still held the Senate) would’ve relented and confirmed Garland, shifting the court to the left and meaning even if Ginsburg was replaced by Barrett it would’ve had a lesser impact. (also, Kennedy probably would’ve retired midway into Hillary’s term anyway; by all appearances he wasn’t retiring strategically, he just was tired of the job)

However, if I may opine, I do not think the justices think the way the public or politicians do. I’m sure all of them would prefer that a president of the same party as the one that appointed them would appoint their replacement, as that new person would be far more likely to rule in the same way they do. However, I don’t think that’s anyone’s main reason for their timing of retiring. I don’t think, regardless of the identity of the president, any of them have any interest in retiring if they they weren’t already at least considering it. As noted above, Kennedy by various indications was just tired of the job and probably didn’t care too much about who was president at the time. Breyer might have been considering politics more specifically, but he was old and probably was considering retiring anyway and all the people screaming at him to retire was, if it played any role, just the tipping point for something he was already thinking about. I don’t think Ginsburg had interest in retiring at all, she liked the job and wanted to keep doing it.

But maybe I’m just being naive. I’m trying to psychoanalyze the decisions of people I never even met. But I do legitimately believe that (had she lived longer) Ginsburg would’ve continued to stay on the court as long as she continued wanting to be on it, regardless of the president.

I do think Alito is the one most likely to retire. I don’t think it’s Dobbs as you say, but more him possibly just getting tired of being on the court, which there is some evidence may be the case.

Thomas has shown no indications of not liking being on the court. The flurry of concurring opinions rather shows he loves being on the Supreme Court, and why expend all that extra energy if he was staying around to avoid retiring under Biden? I think he will continue to be on the Supreme Court regardless of who the president is as long as he feels he can continue doing the job and wants to keep doing it.

In regards to your question of who could replace him… well, I don’t know too much about federal judges in general, but of the ones I know about, James Ho seems the closest thing. Much like Thomas, he seems very willing to reconsider just about every precedent in existence, even to extents I feel are way too extreme. Also, you get diversity points—actually, probably even better ones than Thomas. Thomas was the second African-American justice, but with Ho you not only get the first Asian-American justice, you also get the first immigrant justice. The big question is whether someone with a paper trail like his could get past the Senate.

Now, let’s talk Sotomayor. I feel much of your discussion ignores a rather critical point, which is that it seems to assume the Democrats ARE capable of forcing her through. What a lot of commentators seem to miss is that while the Democratic CAUCUS has 50 people, there are only 46 people in congress with the party affiliation of Democrat. We can bump it up to 47 if we count Sanders who quite frankly should just be honest and label himself a Democrat, but the other three are a different matter.

Angus King has clear Democratic leanings—hence him caucusing with them rather than the Republicans—but still is an actual Independent. Sinema swapped her affiliation to Independent which certainly shows a break with the Democrats—but that might have just been a gambit for re-election due to worries about getting primary’d, and when she realized she’d lose anyway, she just decided to not run for re-election. Manchin also went Independent despite there being no political advantage to; Sinema at least might have been trying (and ultimately failing) to play 4D Chess, but Manchin had already said he wasn’t running for re-election, and so there was no political advantage at all to him to break with the Democrats.

Why is this important? Because the only actual reason to replace Sotomayor right now is partisan politics, and because these three have (to varying degrees) distanced themselves from the Democrats, it becomes a very open question as to whether they would be interested in supporting this. Maybe the Democrats could still do it if they manage to pick up Collins or Murkowski? But that seems dubious also.

In regards to more general thoughts on the Supreme Court, despite them getting Trump v. United States very wrong, on the whole I’d definitely take current majority over it being the other way around (I’ll take Trump v. United States if it meant getting Dobbs v. Jackson). However…

Conservatives no doubt are happy about having more control of the Supreme Court, but it may be a pyrrhic victory indeed given the desire of various Democrats to try to pack it. Would they have done so if they had won this election? I am not sure; the fact it hasn’t been possible (no trifecta) has allowed a lot to stay quiet about it, and we might have found more resistance had Democrats been the winners. So maybe we wouldn’t have seen a push to stack the court. But if it ends up 7-2 instead of 6-3? That’s a whole different story! I think if that happens, that would absolutely give them the backing and incentive to bump the Supreme Court up to 15 people the next time they get the trifecta.

This is the danger I see to conservatives should Sotomayor die while Trump is president with a Republican-controlled Senate. That swaps it to 7-2, and at that point I think Democrats will probably go for broke next time they get a chance (unless the way it turns out is they get the presidency and Senate but no House, and then get to somehow replace a Republican-appointed judge with a Democratic-appointed one, returning it to 6-3). Too much control of the Supreme Court could end up backfiring for Republicans.

Of course, if the court returns to 5-4 that means it’s precariously close to one Republican-appointed justice dying at a random point and letting the Democrats swap it for themselves. Ironically, this is actually an argument often raised for increasing the size of the court, namely the fact so much changes politically just because someone happens to die at the wrong time; if Ginsburg lived a few more months, things would have been very different. This is really not the case for any other single position in government; maybe a death can flip a Senate seat, but the high number of people in the Senate helps mitigate their importance. If the President dies, they’ll be replaced with the (presumably) like-minded Vice President, unless we get another Lincoln-Johnson situation I suppose. The Supreme Court can change massively just by one random death. Think of what would’ve happened if the assassination attempt against Kavanaugh had worked.

In the end, despite all of this writing, I kind of look at it and still feel uncertain about a bunch of things. Maybe I just wanted to hear myself talk a bunch. Still, the takeaway is I do have some considerable worries about judicial conservatives ending up in a potentially pyrrhic victory if they win so much on the Supreme Court that Democrats decide to just pack the court themselves and undo all of that. Sure, they can’t do that for at least 4 years, but if we end up with a 7-2 court I think they’ll be going for it the next time they get a trifecta, which will inevitably happen.

And that’s the end of my somewhat stream of consciousness comment. (I had to cut it down a bit, actually)

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I have a number of thoughts… but my bigger ones are on the Supreme Court and thus I will separate my comments so any discussion on that topic is not bogged down by the rest. Or at least that was the original reason... I then realized my Supreme Court thoughts were so long they couldn't even fit in their own comment, and I had to cut down on them. But that's the matter for the separate comment I'll leave.

So, first, regarding this:

“We find ourselves in a historic position: the American people have elected a man to be President, but the Constitution bars that man from serving as President. This creates obvious legal difficulties.”

I disagree with this on the grounds that I do not believe that the Constitution bars Trump from serving as President. I have read both the original article by Paulson and Baude arguing as such, as well as articles you have written on the subject, and I think they come up short. Your article “The President’s Insurrection” makes a reasonable case for Trump’s behavior on January 6 being disqualifying in the sense that, with or without a Fourteenth Amendment, someone shouldn’t be President if they behave in such a way, and was in fact part of the reason I declined to vote for him and voted third party. However, as a matter of proving that Trump is LITERALLY disqualified for office under the Constitution, I feel it (as well as the original Baude/Paulson article, I have not read their follow-up) comes up short in arguing that Trump was disqualified for engaging in insurrection.

Even if we were to accept the argument that Trump did in fact engage in insurrection (an argument I again am not convinced of, despite finding his actions very problematic) I also think that the argument that the President does not count as an officer of the United States is actually quite credible and that Trump is therefore exempt. Which actually makes your statement rather surprising to me; your article analyzing that question seemed like you considered this exemption for Trump to have at least some credibility. Perhaps since that article you have become more convinced that the President does qualify as an officer of the United States, but you seemed to believe it has at least some merit to it, so to see a flat declaration that “the Constitution bars that man from serving as President” was rather surprising.

But, my purpose here isn’t to try to convince you Trump isn’t disqualified; it’s pretty clear you’re not going to be dissuaded from that. The problem I have is you offer no qualifier of “my belief is” or anything like that, and instead assert it as definite fact (not just here either, in a separate footnote you declare without qualification “He’s already broken the Constitution’s qualifications clauses once”). Even if I did think Trump was disqualified, I would not assert such a thing as if it were some kind of hard fact, because quite frankly it isn’t. We’re not talking about something simple like age or number of terms served, but something far more blatantly subjective. This isn’t something like the natural born citizenship requirement where, even if there is some disagreement on exactly what a natural born citizen is, all of the definitions people have put forward are pretty objective if accepted. What I mean is, whether the definition is “anyone born as United States citizen” (the position I think easily has the strongest support; see, for example, Michael Ramsey’s “Originalism and Birthright Citizenship”) or the much more narrow definition of someone born in the United States of citizen parents, both are objective metrics and, so long as the circumstances of someone’s birth can be established, provide very objective criteria. That is not the case for the Disqualification Clause. The Constitution isn’t holy writ, there isn’t one “definite” correct interpretation of everything in it (the people who WROTE the thing disagreed on how to interpret it on some points). So I believe that even if I did think Trump was disqualified, I could only consider that to be my belief, not any kind of objective reality to be stated as fact.

Maybe the argument is to ignore theorycrafting and instead focus on the legal rulings involved; Roe v. Wade might have been blatantly wrong, but it was still the precedent held until it was overturned. So under that idea, one could try to say that the Colorado Supreme Court ruled against Trump and because the Supreme Court did not address the argument on insurrection but rather just said the Colorado Supreme Court couldn’t make the determination, that means Trump is legally barred under that precedent. This is problematic because the Supreme Court still said the Colorado Supreme Court couldn’t make the determination, thus nullifying the decision anyway (the SCOTUS’s opinion might have had problems, but it has rule of law for now). Even if we were to suppose the decision holds, the Colorado Supreme Court’s decision applies only to Colorado, which went to Harris anyway.

The final issue I have is that even if I were to grant everything, that Trump is undeniably and objectively disqualified from the presidency, he would still be president (assuming that the electors elect him and it is accepted by congress, which is almost certainly going to be the case). It might mean his position is against the constitution, but that doesn’t mean he doesn’t have the position.

It is perhaps a bit ironic for me to write all of this text on the portion where you say you don’t want to make every post about Trump into an argument on the subject (“However, at the same time, I don’t want to turn every single post about the de facto President into a fight about his legitimacy”), especially when I consider that my biggest disagreement on it is not technically your belief, but the way you assert it as fact. But, well, I ended up writing all of this, so might as well keep it.

But to address what was the actual purpose of your remark, which was you saying you didn’t want to refer to him as President Trump and were planning on Mr. Trump… I would recommend just saying “Trump” or “Donald Trump.” “Mr. Trump” is awkward and feels unnatural. On the other hand, people say “Trump” by itself all the time and it looks perfectly natural.

Moving onto parts of less argumentation, a few other comments…

… hrm. Re-reading he post, I feel like (aside from the Supreme Court, which I’ll get to) I don’t have much to comment on, as I don’t think I have any real disagreements and in fact found out some interesting things I didn’t know about. If just a few sentences had been slightly adjusted, I could’ve saved myself all of these paragraphs.

However, one election that most people probably never heard of but was of great importance to me was Alaska’s referendum on ranked choice voting. In 2020, Alaska implemented by referendum a change to the way its elections worked. More specifically, the primary has as many people who want to run (allowing multiple per party) and then the top 4 vote getters progress to the general election, which is decided by ranked choice voting. This year there was a referendum to try to undo that referendum, but it failed in a very close vote (0.2%), so ranked choice will stay. Now, I don’t live in Alaska, but I think this was a very positive thing.

I’ll admit that, although I was a major proponent of it previously, I’ve cooled a bit on ranked choice voting. There are definitely some issues with it. Still, I think it’s (on the whole) a major improvement over our current system, along with this method of handling primaries. Some kind of reform is absolutely needed from our first-past-the-post system, and this was a step in the right direction. So it’s good we didn’t take a step back, and maybe we can see things like this spread to more states, which would have been harder if it was repealed.

I have become a bit more bullish on approval voting—that is, you don’t rank them, you just vote for as many candidates as you want, and whoever get the most votes wins. This of course solves the problem of vote splitting. While this doesn’t allow you to give preferential voting as you can with ranked choice, it does solve some of the issues with it; it’s easier to understand and also allows you to call races faster. Personally I don’t think having to wait is that big of an issue, but it’s still something that people complain about with RCV, as if someone doesn’t get an outright majority you need every vote to be counted before you can tabulate them to determine the winner. Approval voting allows instant results.

Regardless of whether ranked choice or approval or whatever else is better, they’re certainly better than what we have now, and the fact we haven’t taken a step back into first-past-the-post is to me a major victory.

I feel like there was something else I wanted to say, but this is long enough so I’ll close it here (separate Supreme Court comment incoming!)

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