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SCOTUS: How did we get here, and where are we going?


darksabre

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4 minutes ago, TrueBlueGED said:

Well, the Judiciary Committee has the vote scheduled for Friday morning, and McConnell *I think* has full floor debate set to open Saturday morning. I'd assume that would put a confirmation vote early next week. The FBI could probably interview the relevant people before that, if mobilized, but I'm under the impression that could only come at the request of the committee (not happening) or a higher up at the FBI/DOJ (also not happening). Additional testimony in the committee, of course, would take considerably more time than FBI interviews.

Now, removing all things human from the equation, and going pure-savage-politics, would this be like the onside kick down 2 scores with 4 minutes left after kicking a field goal? Because the Dems obviously would want this to last until at least November, right? And hope to flip the Senate and Merrick-Garland anyone until 2020, whence they could hope to win the WH and get their pick 'back'? 

I'm spitballing here. And to clarify, I don't believe or suggest this plays any role in what Dr. Ford is saying and doing.

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23 minutes ago, Randall Flagg said:

Now, removing all things human from the equation, and going pure-savage-politics, would this be like the onside kick down 2 scores with 4 minutes left after kicking a field goal? Because the Dems obviously would want this to last until at least November, right? And hope to flip the Senate and Merrick-Garland anyone until 2020, whence they could hope to win the WH and get their pick 'back'? 

I'm spitballing here. And to clarify, I don't believe or suggest this plays any role in what Dr. Ford is saying and doing.

The situation is probably less likely to have a positive outcome for Democrats than the one you describe. I'm sure there are some lunatics on the left somewhere who think there's a path to holding that seat open. I just can't get myself to a spot where *anything* the Democrats do a does a lick of anything in filling this vacancy. Even if we were to play this out, and a full-scale congressional investigation were done that lasted until the midterms, and the Democrats somehow won a majority in the Senate...do you imagine any scenario where McConnell wouldn't get *someone* confirmed during the lame duck session? I sure don't. If not Kavanaugh, McConnell might actually confirm Caligula in the two months before the new Senate is sworn in. With the map as it is, the only way Republicans lose the Senate is if a sizeable chunk of their base just stays home on election day. If that happens, those who remain will be terrified of a primary challenge--leaving the seat open would almost guarantee some of them face legitimate challenges. If nothing else, a conservative judge would get confirmed in an attempt to placate the base. 

The seat is getting filled with a judge more conservative than Kennedy, and no amount of political blood or lefty angst about fairness and norms is going to prevent it. 

Edited by TrueBlueGED
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7 hours ago, Randall Flagg said:

Isn't that what is going on now though? If the FBI HAD caught a whiff of it, he wouldn't be about to be sworn in right now. But now there's a whiff, so stuff is happening, eh?

To be clear, I haven't followed this any closer than headlines (a blessing of being in-semester) so I have no idea what impact the investigations/whatever have on him being confirmed.

6 hours ago, Randall Flagg said:

Gotcha. 

So, is what's is going to happen qualify as faster than Trump can say Stormy Daniels, or does Brett have it easy? 

To clarify, there's a whiff of "this is unfair" in Swamp's post that I have trouble connecting to how things have played out. 

If there is some "this is unfair" it was unintended. I'm talking about the morons on TV and standing at rallies and even the president, who are saying "innocent until proven guilty." This isn't a trail.

As soon as Kavanaugh was put on the short list, she contacted her congressman to make them aware of what happened. The republicans knew then that this could be an issue and should have removed his name then and there, just as any board would have done looking for a CEO.

I mean, people voted for a guy in the white house who says he can grab women by the hoo-hoo, it makes total sense to me that they would put a rapist on the SC.

(It's just better when I don't turn the TV on)

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7 hours ago, TrueBlueGED said:

Posted this on Facebook. Just my thoughts on the matter. It's long--you've been warned. TLDR: This entire thing sucks.

I've been struggling for awhile to find the words to describe how I feel re: the Kavanaugh hearing today. I'm not sure I do even now, but I need to say something, if for no better reason than my own catharsis. I have no delusions about convincing anyone to change their mind, regardless of where they stand on the matter. And truth be told, that's not even my attempt here. What follows is very long, and much of it is process-oriented, so if you don't want to read and think, you should probably cut your losses and stop reading now.

Glad I kept reading. good post.

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3 hours ago, SwampD said:

 

If there is some "this is unfair" it was unintended. I'm talking about the morons on TV and standing at rallies and even the president, who are saying "innocent until proven guilty." This isn't a trail.

As soon as Kavanaugh was put on the short list, she contacted her congressman to make them aware of what happened. The republicans knew then that this could be an issue and should have removed his name then and there, just as any board would have done looking for a CEO.

I mean, people voted for a guy in the white house who says he can grab women by the hoo-hoo, it makes total sense to me that they would put a rapist on the SC.

(It's just better when I don't turn the TV on)

Understood. 

And fully agree with the last part. I'm regretting the 30 seconds I took to try and catch up on everything in the world last night. Time to retreat back into only focusing on what's in front of me! (the start of hockey should make that much easier)

9 hours ago, TrueBlueGED said:

The situation is probably less likely to have a positive outcome for Democrats than the one you describe. I'm sure there are some lunatics on the left somewhere who think there's a path to holding that seat open. I just can't get myself to a spot where *anything* the Democrats do a does a lick of anything in filling this vacancy. Even if we were to play this out, and a full-scale congressional investigation were done that lasted until the midterms, and the Democrats somehow won a majority in the Senate...do you imagine any scenario where McConnell wouldn't get *someone* confirmed during the lame duck session? I sure don't. If not Kavanaugh, McConnell might actually confirm Caligula in the two months before the new Senate is sworn in. With the map as it is, the only way Republicans lose the Senate is if a sizeable chunk of their base just stays home on election day. If that happens, those who remain will be terrified of a primary challenge--leaving the seat open would almost guarantee some of them face legitimate challenges. If nothing else, a conservative judge would get confirmed in an attempt to placate the base. 

The seat is getting filled with a judge more conservative than Kennedy, and no amount of political blood or lefty angst about fairness and norms is going to prevent it. 

Thank you for answering my questions!

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14 minutes ago, Hank said:

I get the government, but why the country? There's no better place to live. 

This sad old trope. There are lots of nice countries to live in and some may be better than here. Since I haven't lived there, I can't say. Considering the Government is a reflection of the Country, seems that I can be ashamed of both as one represents the other. 

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25 minutes ago, LGR4GM said:

This sad old trope. There are lots of nice countries to live in and some may be better than here. Since I haven't lived there, I can't say. Considering the Government is a reflection of the Country, seems that I can be ashamed of both as one represents the other. 

I wasn't trying to debate you, or say you are wrong. I was curious on your thoughts and reasoning. Nice dickish response, good job. 

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52 minutes ago, Hank said:

I wasn't trying to debate you, or say you are wrong. I was curious on your thoughts and reasoning. Nice dickish response, good job. 

If you think that's a dickish response that's on you and your interpretation.  The trope is old. There's lots of nice countries. 

The rest of that post is logic. If then statement. 

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26 minutes ago, LGR4GM said:

If you think that's a dickish response that's on you and your interpretation.  The trope is old. There's lots of nice countries. 

The rest of that post is logic. If then statement. 

If thinking America is the best country to live is old trope I'm good with it. Your right, there are lots of nice countries, I visit them often, but there's no better place to live. 

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To add, the government is a reflection of the country. We picked this government and are seeing our place in the world change as a result. So a poor government in effect creates a poor country. 

There's also a lot people in the US that are being persecuted and discriminated against. That's an issue that the government seems to want to ignore or openly deny is a problem.  

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On Friday, September 28, 2018 at 1:15 AM, TrueBlueGED said:

Posted this on Facebook. Just my thoughts on the matter. It's long--you've been warned. TLDR: This entire tsucks.

I've beisn st awhile to find the words to describe how I feel re: the Kavanaugh hearing today. I'm not sure I do even now, but I need to say something, if for no better reason than my own catharsis. I have no delusions about convincing anyone to change their mind, regardless of where they stand on the matter. And truth be told, that's not even my attempt here. What follows is very long, and much of it is process-oriented, so if you don't want to read and think, you should probably cut your losses and stop reading now.

I have no idea what happened that night decades ago. None. I found Dr. Ford's testimony to be both compelling and credible--nobody who watched it in full, prior to partisan commentary, could rightly say she came off as some fringe nutjob out to ruin Judge Kavanaugh's life. I legitimately feel for what she and her family have been going through since she came forward--receiving death threats, needing to (at least temporarily) relocate. Whether you think she's out to "get" Judge Kavanaugh, I would like to think empathy for what her family is going through (and will continue to endure for the foreseeable future) is simply the humane thing to feel.

Likewise, I would hope we can feel empathy for what Judge Kavanaugh's family has been going through. Whether Judge Kavanaugh himself did attempt to rape Dr. Ford, or anyone else, his family didn't. They do not deserve the death threats their family has received, and seeing their husband/father publicly accused of a heinous crime is surely a horrible experience. Much like empathy for Dr. Ford's family is the human thing to feel, I think empathy for his is also the human thing to feel. Judge Kavanaugh himself responded with the righteous indignation I would expect of someone who was accused, whether falsely or not. I could have done without him peddling a partisan conspiracy theory, but the tenor of his opening statement wasn't surprising. I don't think I'd have responded quite that way, but I don't necessarily fault him for doing so. If he is innocent, or simply believes he is innocent, it was a fairly natural reaction. I have issues with several aspects of his testimony, but the raw emotion isn't one of them, and I think the liberal talking points focusing on them are quite misguided.

Which brings me to the substance of the hearing. Was Dr. Ford's testimony sufficient to prove guilt beyond a reasonable doubt? No, no it was not. Saying otherwise is making an argument in bad faith--you can believe her, but barring corroborating evidence (note I said corroborating, as her testimony is, in fact, evidence), Judge Kavanaugh cannot be convicted. Which brings the important point: this is not criminal court. It's a promotion to one of the most powerful and prestigious positions in the entire world. If he isn't confirmed, he doesn't go to prison--he returns to the DC circuit, where he will continue to be an incredibly powerful judge. Given these things, I don't think having a different standard than "beyond a reasonable doubt" is unfair.

Furthermore, despite the rhetoric of this as a "search and destroy" mission by the left, Judge Kavanaugh's life is far from destroyed. Even if he were to leave the federal bench, he could sign a 7-figure book deal yesterday, go to a private law firm and earn considerably more than his current salary, and/or make a killing on the TV/speech circuit for conservative media outlets and groups. The penalty for withdrawing the nomination, or losing the nomination, is not prison, or death, or unemployment. 

Again, I claim no knowledge of what did or did not happen decades ago. If this was a criminal trial, and I was on the jury, and the entirety of the evidence was what was presented today, I would vote not guilty. What bothers me most, though, is that the Senate Judiciary Committee (and Republican leadership in general) is not interested in even trying to find out what happened. It's not that they don't care whether Dr. Ford actually was raped by then-teenage Kavanaugh, it's that they don't even want to try to find out. It was decades ago, we might never convincingly know either way, but we should care enough to try. During the Clarence Thomas confirmation hearings, there was an FBI investigation and over 20 witnesses were called to testify. To the chagrin of many on the left, he was ultimately confirmed (through a Democratically-controlled Senate, it's worth noting). And a deeper investigation may well not have any impact on Judge Kavanaugh's confirmation vote, but this time around we had 2 witnesses hear on the same day and 0 investigations, with a planned vote on Friday out of committee and a full floor vote on Saturday. That's just wrong. The allegations are serious, and should be treated seriously. They have not been, and as a human being, much less someone who thinks some degree of bipartisanship is necessary for good governance, that just makes me sad.

Whether Judge Kavanaugh ultimately did what he was accused of or not, he has every incentive to flatly deny it--a nomination to SCOTUS doesn't come around every day. Dr. Ford has nothing to gain. I guess you could argue she might get a book deal or paid speaking appearances now? Maybe. But there's definitely no incentive for Democrats or liberals to be waging a vast conspiracy built on lies. Even if Judge Kavanaugh is ultimately voted down (I'll be shocked if he is, but who knows these days), he will be replaced with someone else who is just as conservative and who liberals and Democrats will disagree with just as much and who will shift the ideological balance of the Court to the right. There is 0% chance that the Republican-controlled Senate doesn't confirm Kennedy's replacement before the new Congress is sworn in in January, and a similarly 0% chance that that nominee is a moderate. I think there's even a good argument that these allegations bringing down the nomination could hurt Democrats in the midterms, as it would surely fire up the Republican base (if it hasn't already). 

I'm sure some of my Republican and conservative friends may be thinking "yea, but if these accusations can take down Kavanaugh, they'll be used against any other nominee to block them and keep the seat open." This is not a logically sound argument. Democrats and/or liberals did not torpedo Gorsuch with allegations of sexual assault. Nor did they do it for Alito, or Roberts, or any other of a host of conservative jurists for the lower courts with whom they vehemently disagree ideologically. There are countless well-qualified conservative judges serving who could be nominated and confirmed without these kinds of allegations derailing the confirmation process. The idea that similar accusations would happen against anybody simply ignores observed reality and veers into some real tinfoil hat thinking. Again, it was just a year ago that Gorsuch, a justice who Democrats will despise for decades, was confirmed *with Democratic votes.*

The Supreme Court is important. Its legitimacy matters. And right now, its legitimacy is in flux. There are many on the left who feel everything that has followed McConnell's blockade of Merrick Garland's nomination has been illegitimate. That's a theoretical argument, but it's not purely an academic exercise. The Court's power and role in our system of checks and balances is dependent upon its legitimacy as an institution--it's reliant on the other branches and outside actors to enforce and comply with its decisions. Nixon ultimately complied with SCOTUS, but what if SCOTUS was viewed as a nakedly partisan political institution? Would he still have complied? What if the next Democratic president views a 5-4 decision against an action/policy as a political move by 5 Republicans rather than a valid judgment by the high court? We don't know, but it's not an irrelevant thing to think about as the political climate continues to devolve.

Political scientists have long known that the Court is political, but the public at large hasn't. The Supreme Court, as far as we can measure public opinion, has been the most popular branch of the federal government. A big part of the reason for this is it hasn't been viewed as overtly political. Potentially since Bush v. Gore, but certainly since the Garland fiasco, it's trending in the political direction. And once this happens, what is to stop escalation? It's my biggest fear. The next time Democrats get unified control of government (which will happen, whether it's in 2 years, or 6...it's just how politics works), there is likely to be massive pressure from the base to either expand the size of the court or to impeach a hypothetical Justice Kavanaugh. Or both. It's going to be a disaster. But if the public starts viewing the Court strictly down partisan lines, there is every political reason to do exactly that.

If the Court is to be viewed as a purely political institution, then go ahead and play unabashed partisan politics with it. And that's probably going to have a trickle-down effect. It's entirely possible we're heading to a reality where federal judges at all levels are only confirmed when the same party controls both the presidency and the Senate. On the flip side, when there is unified control, we're likely already in a reality where all of the judges appointed are going to be on the extreme ends of the ideological continuum. That's a horrible reality to live in, I fear we're already there, and both sides are too busy saying "they started it" to take a step back and think about the larger and longer-term consequences of what is going on.

Good post.  Thanks for that.

A few responses primarily regarding why someone with a more right-leaning bent than yours thinks he sees a reason for why such a huge fight against Judge Kavanaugh and so much less against Judge Gorsuch.  

But 1st, let me say that having watched nearly all of yesterday's hearings (I'm so far behind on work because of effectively taking the day off that it isn't even remotely funny) and I believe that Dr. Ford was credible and also that Judge Kavanaugh was credible.  I have nearly no doubt that she was attacked as a teenager and that she believes it was Judge Kavanaugh that attacked her.  I also don't believe that the lack of details impunes her testimony.  But with that said, especially with all 4 people, including her good female friend, that she said were either present or actual witnesses stating on record under penalty of perjury that the events she described did not happen; I don't believe that it was Judge Kavanaugh that attacked her.

I am fine, to a degree, with the delay for the FBI investigation to occur.  [EDIT: I am not certain under what premise the FBI will beinvestigating.  It was my understanding that they didn't have jurisdiction.  IF they do not have legal jurisdiction here & this is a case of the "rule of man" overstepping the "rule of law" then I am not in any way ok with the investigation.]  I am fine with them trying to get to the bottom of this allegation, and if they find additional evidence to corroborate her claims I am willing to change my opinion.  What I expect to have happen though, is that the FBI will unearth nothing new about the current allegations; but that Michael Avenatti (or someone even less scrupulous than he) will "find" additional "victims" that simply "must be heard."  And this circus will continue.  While in theory this new development will bring the 2 sides closer, I truly expect few if any will change their opinion because I expect these new cases won't t be fully considered prior to next Friday and that if his nomination is pulled or defeated people on the right will blame the "dirty tricks" and if he is confirmed people on the left will be upset that these new "victims" weren't believed and didn't get THEIR "day in court."  (Even though this is not a court.)

Sorry about that meander into the drama itself.  Now, on to why I believe the D's are fighting this so much harder than the last one.  It comes down, as simple as you state, the SC does tend to be political (though to far less a degree than the legislative branch is).  The D's weren't going to go to THIS level of nuclear over Gorsuch because he was a conservative replacing the most conservative judge on the bench.  His confirmation didn't change the politics / dynamics of the SC in any appreciable way.  And, though the D's didn't fight him this hard, they DID attempt to fillibuster him and got the fillibuster removed from their quiver by McConnell.  So, that wasn't there for them anymore for this nomination which will moderately change the politics of the court.  Rather than being 4-4-1 with the 1 leaning slightly conservative on some issues and liberal on others, it will be 5-4 with the most likely jurist to be next off the court being the most liberal.

That the flavor of the court will shift with this next justice getting confirmed is why the D's fight so hard.  That's the reason the R's were unwilling to readily allow Garland to replace Scalia and why they followed the "Biden rule."  They didn't want to change a 4-4-1 into either a 3-5-1 or a 3-4-2 in their best case.

I am a bit surprised that you aren't viewing the way the court will shift as a major factor in why the response has been what it has been relative to the last hearing.

And because the left-right balance WILL shift unless the D's can force another Kennedy or Souter to be nominated, they will IMHO fight this hard against any nominee.  They are desperately hoping they can defeat Kavanaugh and drag this out past the flip of the calendar when they hope to have more Senators on their side.  They've been adamant they want the vote to take place as far into the future as possible from day 1.

They also sat on this allegation since the end of July at a minimum.  Senator Feinstein has had the letter since at least July 31.  She didn't bring it to Senator Grassley nor the FBI until mid-September.  She interviewed Judge Kavanaugh on August 8 (IIRC), but didn't bring up any questions about sexual impropriety.  This, again IMHO, was an obvious Hail Mary to stave off a successful run through the Senate.  Had Senator Feinstein brought this up when she received the info, this could have been investigated in a timely manner out of the limelight and Dr. Ford could have avoided so much trauma.  And, there would have been a lot more faith in the SC after this finally was finished (with or without a confirmation) than there will be now (with or without a confirmation).  And though I didn't expect politicians could be seen with much more of a jaundiced eye than they were a month ago; I'm pretty certain they are.

I doubt we will see eye to eye on this, but I did truly appreciate your comments on the process.  I will be tied up most of this evening and pretty busy this weekend as well, so I don't know when / if I'll be able to return to this thread.  I will try to get back here.

Thanks.

(PS - there is likely at least one very emotional poster here that I doubt very much I will respond to even if I do find the time,  so I would like to state now that I fully expect that if you do respond, I most likely won't as we will likely be talking well past each other.  That's fine in the hockey threads, but will cause much frustration for both of us here.  So, apologies up front for not responding; and even more apologies up front if I do respond.)

Edited by Taro T
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22 hours ago, Hank said:

If thinking America is the best country to live is old trope I'm good with it. Your right, there are lots of nice countries, I visit them often, but there's no better place to live. 

It has to be said that you are stating your opinion and that others may feel differently.  While not tracked accurately, most estimations are that since 2010 there has been a significant uptick in the number of Americans moving out of the country.  Certainly those reasons can vary greatly, but it seems that there is at least a trend that would indicate a growing number of people no longer consider this the greatest place to live.

For me personally I have many reasons why I would consider moving out of this country.  Political atmosphere being but one of them. I think our culture is trending in a very self-destructive path.  I'm not sold on our education system.

I would very much questions whether this is the best place to live but since I have not lived elsewhere, I cannot say at this point.  That said, I've been on the fence for a few years and were I single, I probably would have left.

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On 9/28/2018 at 6:09 PM, Taro T said:

Good post.  Thanks for that.

A few responses primarily regarding why someone with a more right-leaning bent than yours thinks he sees a reason for why such a huge fight against Judge Kavanaugh and so much less against Judge Gorsuch.  

But 1st, let me say that having watched nearly all of yesterday's hearings (I'm so far behind on work because of effectively taking the day off that it isn't even remotely funny) and I believe that Dr. Ford was credible and also that Judge Kavanaugh was credible.  I have nearly no doubt that she was attacked as a teenager and that she believes it was Judge Kavanaugh that attacked her.  I also don't believe that the lack of details impunes her testimony.  But with that said, especially with all 4 people, including her good female friend, that she said were either present or actual witnesses stating on record under penalty of perjury that the events she described did not happen; I don't believe that it was Judge Kavanaugh that attacked her.

Interesting you should mention that specifically, right around the 13:40 mark. 

 

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1 hour ago, SwampD said:

His views or his past aside, this guy should not be a SC judge.

I'm paraphrasing here, but one of his answers was, "I know you are, but what am I?"

Sheesh. That's not how a judge should act.

This whole witch hunt is stupid, I can't wait for it to be over. 

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On ‎9‎/‎28‎/‎2018 at 2:15 AM, TrueBlueGED said:

The situation is probably less likely to have a positive outcome for Democrats than the one you describe. I'm sure there are some lunatics on the left somewhere who think there's a path to holding that seat open. I just can't get myself to a spot where *anything* the Democrats do a does a lick of anything in filling this vacancy. Even if we were to play this out, and a full-scale congressional investigation were done that lasted until the midterms, and the Democrats somehow won a majority in the Senate...do you imagine any scenario where McConnell wouldn't get *someone* confirmed during the lame duck session? I sure don't. If not Kavanaugh, McConnell might actually confirm Caligula in the two months before the new Senate is sworn in. With the map as it is, the only way Republicans lose the Senate is if a sizeable chunk of their base just stays home on election day. If that happens, those who remain will be terrified of a primary challenge--leaving the seat open would almost guarantee some of them face legitimate challenges. If nothing else, a conservative judge would get confirmed in an attempt to placate the base. 

The seat is getting filled with a judge more conservative than Kennedy, and no amount of political blood or lefty angst about fairness and norms is going to prevent it. 

The seat will get filled (by a Conservative judge) before the new Congress starts in January. Trump will stick with Kavanaugh because Kavanaugh has said that a sitting President should not be able to be indicted. Because of that, Trump will stick with Kavanaugh no matter what. If he doesn't get the votes though, Trump will be forced to pick another name off the pre-approved Heritage Foundation list and that guy will sail through easily. If I had to bet I'd say Kavanaugh gets the votes though.

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Kavanaugh is in.  He’ll do what he’s been put there to do, erase the non political front that’s been draped over the judiciary since the constitution was written.  Wholly the point.  

We’re reaching end-stage Weimar Germany.  Swap out Mitch McConnell for Paul von Hindenburg.  Both of whom bit off more than they could chew, McConnell either doesn’t know this yet or genuinely doesn’t care.  Probably the latter.  

I despair at the thought of what the next few months will bring, we’ve seen it before.  I have no faith we won’t see it again. 

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21 minutes ago, Sabel79 said:

Kavanaugh is in.  He’ll do what he’s been put there to do, erase the non political front that’s been draped over the judiciary since the constitution was written.  Wholly the point.  

We’re reaching end-stage Weimar Germany.  Swap out Mitch McConnell for Paul von Hindenburg.  Both of whom bit off more than they could chew, McConnell either doesn’t know this yet or genuinely doesn’t care.  Probably the latter.  

I despair at the thought of what the next few months will bring, we’ve seen it before.  I have no faith we won’t see it again. 

I'm curious, what are your fears with Kavanaugh being voted in?

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