The Supreme Court thoughts

Here are a few thoughts on the Supreme Court vacancy as my kids are slowly quieting down for the night.

First, a 4-4 court from a liberal perspective is no worse than the current situation.  Crappy decisions like the DACA decision out of the 5th Circuit will continue to be affirmed.  However the affirmation will be on because the court can not come to a majority decision therefore the appeals court ruling holds only for that circuit and not for the nation.  Questions coming out of liberal rulings in the appeals courts where the four liberal votes are voting to uphold and where there is a conservative swing vote (Kennedy or Roberts most likely) do not change in their outcome as the alignment would be a 5-3  or 6-2 ruling with a clear majority.  The cases where Scalia would have been a member of a five person majority are the cases that are now being tossed back to the appeals courts as unresolved.

As of this year, most of the Appeals circuits including the DC circuit have a Democratic appointed judge majority.  Cases which were granted cert from these circuits and would have been 5-4 reactionary judgments will be kicked back to the circuits.  Those circuits will either have ruled with fairly liberal judges on the initial ruling or if the case was important enough and the randomly selected appeals panel was significantly out of line with the circuit consensus, en banc hearings would have final say.

If there is a long stretch of an 8 member court that can’t decide anything controversial, I predict that there will be a significantly higher number of en banc hearings conducting mini-reversals.  The probability of a Supreme Court bench-slapping goes down dramatically.

Now onto healthcare.  There are only two major healthcare cases on the docket right now.  The first case is a technical discussion as to whether or not ERISA pre-emption regulations prohibit states from requiring self-insured companies from providing data to all payer claims databases.  I don’t know if this was lining up to be a 5-4 decision nor what the configuration would have been.  My preference is that the Supreme Court rules that all payer claims databases can require self-insured companies to submit data without running afoul of ERISA.

The other major healthcare case is the Little Sisters of the Poor et al.   This is a birth control cases for religiously affiliated non-profits that think the mere act of signing a piece paper that states birth control is icky and the damn sluts should have the risk of pregnancy every time they spread their legs is an infringement on their rights under the Religious Freedom Restoration Act.  This is a continuation of the line of logic that powered Hobby Lobby but it attacks the work-around that a third party administrator pays for birth control instead of the employer sponsor of the plan.  This would have been a priori a 5-4 loss for PPACA and the notion that female reproductive autonomy is between a woman and her doctor.  Now it is most likely a 4-4 case where the appeals courts have been slapping down the argument that the Little Sisters and others are making: signing a piece of paper is too much effort on their part.

As far as nominations, the only scenario where a nominee to the right of Atilla the Hun goes through is if by mid-May early polling and indicators show that the Democrats will most likely hold onto the White House and pick up at least four if not five or six Senate seats in November.  At that point, the calculation could be that from a policy perspective, a Republican majority in the Senate could not get any better than having some say in a nominee instead of seeing a Democratic president nominate a choice constrained by Manchin instead of Grassley and a 51 or 53 vote Democratic Senate effectively say that if the Republicans want to run the Senate like Parliament, then by god they’ll get that.

Thrust From the Sweaty Loins of Liberty

I didn’t listen to the live feed of the arrest of the last moron because I thought it was like listening to a snuff film in the making, but I did check the Oregon paper later for a write-up, where I discovered this:

Lost in the final hours of the occupation was the original motive for starting it: the imprisonment of Dwight and Steven Hammond. The militants didn’t mention the Harney County ranchers in the closing moments. Instead, they focused on whether they would be able to live to tell their story.

Fiore gave this advice to militant Sandy Anderson about writing her story: “Be detailed Sandy, be very, very detailed,” Fiore said. “Like that author did in Fifty Shades of Grey.”

It’s only been a month since this:

We’ve reached the phase in our nation where the wingnut right is unspoofable.

Open Thread: “Cowboy Socialism”

I prefer “welfare ranchers”, but that’s because as a citified coastal elitist I have no allergy to the word socialism. Excellent read — even if you know all this already, it’s nice to have all the links in one place. Ryan Cooper, at The Week, on “The secret history of cowboy socialism”:

Bundy’s ideas are nonsense — but they’re no more wrong than the entire creation myth of the American West. Though there have been Americans who could survive completely unaided in the West — men like Kit Carson and Jim Bridger — there were only a handful of them, and most were at least half-crazed. No society on Earth has ever functioned wholly on self-interested individualism — and that holds doubly true for the West. From the very start to the present day, Big Government has been the very bedrock of the settlement of the American frontier.

Before the West could be won, it first had to be stolen. Mexico still claimed sovereignty over most of the territory, so U.S. President James Polk ginned up a quick war to steal half of the unlucky country. Even afterwards, there were still tons of Indians living in the conquered territory, so U.S. authorities had to undertake a general program of ethnic cleansing to make way for white settlers. Smallpox had done the bulk of the heavy lifting there, but extensive white settlement still required the first major domestic government program in the West: the Indian Wars

Once the Indians had been driven out (save for a few pitiful reservations composed of the most unproductive land in the region), white settlement was stoked with the first example of genuinely socialist policy: free land. A long series of laws gave sizable chunks of land (classically a quarter-section, or 160 acres) to individuals subject to proof that they were putting it into agricultural production. Railroads also got vast chunks as a way to fund new transportation, and mining companies could claim smaller bits with mineral reserves.

This was socialist both in the “free stuff from the government” sense and the Soviet sense, in that the land programs were conceptually unworkable, catastrophically mismanaged, and riddled with fraud…

As Marc Reisner details in his history Cadillac Desert, this is the basic problem with Western politics, even up to the present day. It has been from the very start handicapped by the reality that only extensive federal government projects could possibly facilitate the settlement and development of the region, but it has been too wedded to the cowboy mythology to admit it…

Read the whole thing, it’s not long but it’s very nutritious!
Apart from mocking the Scrubland Revolutionaries, or whatever they’re calling this round of gun-fondling cosplay, what’s on the agenda as we wrap up the weekend?

So Near And Yet Shofar

Because I could(n’t resist):



Posted by Blaine Cooper on Sunday, January 17, 2016

Just to ram the point home: if I were those guys I’d think long and hard about the story of Nadab and Abihu. False prophets do not usually achieve happy endings. A sheepish withdrawal is by far their best outcome…which would let them get back (continue) to fleece their flock.

But I’ll say this: those big horns are not that easy to blow. Kudos for that at least.

Long Read: “The Freedom Caucus & the War in the Republican Party”

DougJ already extracted another jaw-dropping quote, but the whole article is well worth reading. Ryan Lizza, in the New Yorker, on “How a radical group of Republicans pushed Congress to the right”:

… [T]he House Freedom Caucus [is] an invitation-only group of about forty right-wing conservatives that formed at the beginning of this year. Since 2010, when the Party won back the chamber, the House has been engaged in a series of clashes over taxes and spending. Two years ago, House Republicans brought about a government shutdown over the Affordable Care Act and nearly caused the United States to default on its debt. This week, as Congress raced to meet a December 11th deadline to pass the annual legislation that funds the government, the members of the Freedom Caucus had new demands: they wanted to cut funding for Planned Parenthood and restrict Syrian refugees from entering the United States, policies that, if attached to the spending bills, could face a veto from Obama and, potentially, lead to another government shutdown.

To the general public, these fights have played out as a battle between President Obama and Republicans in Congress. But the more critical divide is within the Republican Party, as House Speaker John Boehner discovered. Boehner, who is from Ohio, was elected to Congress in 1990 and rose to the Speakership in 2010. His tenure was marked by an increasingly futile effort to control a group of conservatives that Devin Nunes, a Republican from California and an ally of Boehner’s, once described as “lemmings with suicide vests.” In 2013, to the bafflement of some colleagues, Boehner supported the shutdown, in the hope that the public backlash would expose the group as hopelessly radical. It didn’t work. The group continued to defy Boehner. He tried to regain control as Speaker by marginalizing its members, and they decided that he must be forced out…

Boehner’s troubles and the rise of the Freedom Caucus are the product of resentments and expectations that the G.O.P. leadership has struggled for years to either address or dismiss. In 2009 and 2010, Democrats, who then controlled both the House and the Senate, pushed through the most aggressive domestic agenda since the Great Society. In response, during the 2010 midterm elections Republicans promised to overturn Obama’s entire agenda—the Affordable Care Act, financial regulation, stimulus spending, climate-change regulations—and dramatically cut government. Just before the election, the three House Republican leaders, Boehner, Eric Cantor, and Kevin McCarthy, promoted a manifesto, called “A Pledge to America,” that, among other things, promised to cut a hundred billion dollars from the budget and return spending to pre-Obama levels. The Republicans won sixty-three seats, taking control of the House, and expanded their ranks in the Senate. In November, 2010, House Republicans unanimously elected Boehner Speaker…

In January of 2013, when Boehner was reëlected as Speaker, a dozen Republicans withheld their votes. In August, Meadows sent a letter to Boehner recommending that he offer Obama a trade, which read more like a threat: if the President agreed to defund the Affordable Care Act, House Republicans would continue to fund the government.

The idea had little currency inside the House, but it found an eager audience among activists and conservative media outlets… Read more

Late Night Persistent Minor Irritation Open Thread

Erick Erickson’s family was living in Dubai when he was of an age that his parents could veto his food choices. His pretense that they were simple Godly illiterates who didn’t understand that ‘Asia’ isn’t a country doesn’t reflect well on him or them — as if he cared whose reputation he defamed in his attempts to gin up a little more attention from the rubes.

Is there anything these RWNJs won’t lie about, no matter how small?

Open Thread: It’s Not Lying If You Believe Your Own BS

Okay, okay, pedants: The proper spelling would be Psych!

Oliva Nuzzi, in the Daily Beast, “Golden Hair, Meet Tinfoil Hat”:

If you were “reading the tea leaves,” as Alex Jones might say, you would’ve felt deeply in your bones that it was just a matter of time before Trump’s courting of the nation’s foremost crackpots and conspiracy theorists went mainstream. The dog whistles would transform into shouts, the winking and nodding into bear hugs…

Alex Jones is the Hulk Hogan of conspiracy theorists. A Texas native, he is big and loud and the color of a ripe tomato. He thinks the government was involved in the Oklahoma City Bombing, the New World Order is being run by “clockwork elves,” and shrimp are suicidal because of Prozac poisoning the water supply. He is the founder of, the sort of publication that peddles 9/11 truther propaganda and runs headlines like, “Subliminal Super Bowl Illuminati Secrets Revealed.”

“I’ve got so many questions,” Jones, who in October endorsed Rand Paul, told Trump. “But you are vindicated—this has gotta be the 50th time the last six months—on the radical Muslims celebrating, not just in New Jersey, but in New York, Palestine, all over! What do you have to say? They’re still attacking you!” (Jones didn’t reply when asked if he was switching his allegiance from Paul to Trump.)

From the unfortunate angle of Trump’s webcam, his neck disappeared into the collar of his shirt and his head looked sunburned and misshapen, like a wad of Silly Putty that had recently been set on fire.

“Well, I took a lot of heat and I was very strong on it and I held my line and then all of a sudden hundreds of people were calling up my office,” Trump said…

A few hours later, Jones had moved off the topics on which he and Trump see eye to eye—Muslims cheering on 9/11, the Iraq War—and on to promoting the idea that the mass shooting at a San Bernardino, California, center for the disabled on Wednesday afternoon was “highly suspicious” and seemingly “geared to elicit widespread public outrage,” much like the 2012 massacre at Sandy Hook Elementary School had been…

The storied meeting was arranged by Roger Stone, a longtime friend of Trump’s who left the campaign, where he had served as an adviser, in August amid infighting.

Reached by phone on Wednesday, as Trump and Jones were still chatting, Stone said that he had “recommended” the interview to Trump after he had been a guest on Jones’ show himself on Nov. 9 to promote his new book, The Clintons’ War on Women.

Stone was adamant that he wasn’t working for Trump again, not in a “formal or informal” capacity, despite recommending interviews to him during their conversations and supporting his candidacy with the frequent employment of the Twitter hashtag #YUGE…

The thrust of Trump’s case for his candidacy is this: The system is broken, the powerful (including himself) are exploiting it to their advantage behind the scenes with the help of a corrupt and complicit media that is concerned only with protecting the establishment and the status quo. Just what your average bros populating a comment thread on a YouTube video about false-flag operations suspect, but Trump may not know the full extent to which this new base of supporters he has tapped into has gone off the deep end. It’s one thing to suggest, as Trump does, that the government and the media are rigged to screw over the Everyman—lots of politicians say that. It’s something else entirely to say government actors are pretending to be the family members of slain Americans who never existed in the first place.

Then again, Trump has been making shit up for longer than he has been a candidate. It would be unwise to underestimate him…

Eric Levitz, at NYMag:

Last night, Fox News host Bill O’Reilly proved himself to be the Hannibal Lecter of right-wing demagoguery. Just as Dr. Lecter used his insights as a cannibal killer to help police get inside the minds of murderers, so O’Reilly drew on his experience as a serial liar to help America get inside the mind of Donald Trump…

“Here’s what happens,” O’Reilly said. “Sometimes, when you’re up there, you get overly excited and you’re speaking extemporaneously. And then you say things, as anybody would, because the crowd is cheering and everything is going wild, that you don’t know to be true but you believe to be true.”

Trenchant insight and the absence of self-awareness have never been so neatly bound.