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The Reformicon Faction Speaks

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Chief-Justice-John-Roberts

Via sleepyirv, Exhibit Z for the proposition that a Republican Senate is not going to confirm a Democratic Supreme Court nominee:

See, the problem is that contemporary liberals lack such compelling constitutional theories as “the powers grated to Congress by Section 2 of the 15th Amendment are constrained by the Equal Sovereign Dignitude of the states, which can be located in the text of the Constitution…hmm, ok, but it is deeply embedded in the bare assertions of John Roberts and Roger Tan…er…Moving right along, Congress’s remedy must be consistent with [standard omitted], but since the chosen remedy has been too effective Congress no longer has its explicit textual powers to enforce the 15th Amendment.” That’s the kind of principled judgifying the noble Republican Senate conference wishes to preserve.

Anyway, the important thing to remember is that it’s not that conservatives dislike the potential substantive policy outcomes of a Supreme Court with a median Democratic-appointed vote, it’s that liberals lack a sufficiently rigorous constitutional grand theory. Hence, the ends justify any means.

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  • MPAVictoria

    So basically 44% of the country is nuts and you guys have nukes.

    /Fantastic

    • CaptainBringdown

      At least we don’t have ketchup flavored chips. So there.

      • Young_Hegelian

        It’s both sides, really.

    • Steve LaBonne

      This thought has only now occurred to you?

      • MPAVictoria

        No. But this post was definitely a reminder

    • wengler

      44% is a pretty conservative estimate.

      • Sly

        44% exclusively nuts might be a bit much.

        “25% nuts, 20% willing to make common cause with nuts, and 10% not being able to discern what is or what is not nuts and so its basically a crap shoot whether they are effectively nuts” sounds more accurate, at least to me.

        • Bill Murray

          where are you counting the 45% that don’t vote?

  • Any chance you guys can make LGM the leader in calling for abolishing the Air Force and the FBI?

    • DAS

      Every since I was a kid, I have suggested that the Federal Bureau of Investigations be renamed the Federal Investigations Bureau. My suggestion seems particularly apt right about now.

    • Bill Murray

      let’s go for the trifecta and throw out the CIA, too

      • Brad Nailer

        I’d go for just that one.

  • Dagmar

    The conservative grand legal theory is that Marbury v. Madison was wrong and the Supreme Court does not have authority to review acts of Congress to determine constitutionality.

    • Domino

      The party of Jefferson, reborn!

      Now they just need to make a shitty conservative version of Hamilton that is just awful, and you’ve got yourself another conservative-help-I’m-being-oppressed gravy train.

    • Joe_JP

      They can. ala Trump, it’s okay if they win.

      That’s “judicial engagement.” If they don’t win, it’s “activism.”

    • Sly

      For certain values of “acts of Congress.”

      • smartalek

        Clearly.
        They always have the right of review and veto over any acts of Democrat [sic] Congresses.
        That just goes without saying.

      • ThrottleJockey

        Right. When liberal justices overrule Congress its judicial activism, but when conservative justices do it its “Constitutionalism”

  • What can one say about Douthat? He was openly pining for monarchy last week, without the wit to realize it. An arsonist who speaks in complete sentences still wants to burn your house down.

    I live in Minnesota, a blue state with no senate race this year. My congressman is a pretty decent fellow who called Trump’s nomination way back in July of 2015. I’ve given more than I can afford to Wang’s and Balloon Juice’s ActBlue campaigns and to winnable congressional races in my state. I’m not sure I can do anything else. This is the part of democracy that stinks: counting on the opposing party to not be insane.

    I’m wondering: WTF else is there to do to remove this feeling of dread?

    • Jon_H11

      Phone bank for races in other states.

      • I suppose that’s next. The only problem is that the first and last time I tried phone banking, I discovered that I was comically inept at it. I think I was a net negative for the team.

        • bobbo1

          At this point most of the calling is not about persuasion, it’s about finding out how people are voting making sure that they do it (if they are voting Dem).

          I hate it but I do it anyway. I wonder if I’m doing any good but I do it anyway. I know for certain that I won’t be doing any good if I don’t make the calls.

          You can do it from home!!! hillaryclinton.com/calls

          • I’ll try to give it another go, thanks.

          • rhino

            I wonder if I can do it from Canada?

            After all, if you guys elect Trump (well not YOU guys), Canada is fucked almost as hard as you are…

            • BartletForGallifrey

              Yes, you certainly can. We have lots of Canadian phonebankers.

        • David Allan Poe

          I did it in 2012. I don’t like talking on the phone and have a tendency to joke my way through bouts of nerves. So when the nice old lady in Nevada asked why she should vote early, I replied, “Well, you know what they say, vote early and vote often.”. She paused for a moment and then said in a very concerned voice, “I just don’t think that’s very fair.”

          I changed the subject to whether we could count on her vote for Obama, and she replied emphatically that he was sneaky and she didn’t trust him. I stumbled through one or two more calls but eventually couldn’t bring myself to dial again.

          I got the head person at the phone bank to put me on some tedious but necessary administrative task and spent the next few days paranoid that some wingnut site’s headline would scream: “DEMOCRAT OPERATIVE CAUGHT ENCOURAGING MULTIPLE VOTING”

          Some people just aren’t cut out for phone work.

          • Bitter Scribe

            The only time I ever did anything besides vote myself was going door-to-door for my Democratic congressman in 2010 (a losing effort).

            I’ll never forget one encounter: I laid out the case for the incumbent—nuclear scientist, smart, hard-working, believed in representing the little guy. The homeowner was very receptive, even enthusiastic, and promised to vote.

            Then, as I was turning to go, the guy said brightly, “He’s a Republican, right?”

          • ThrottleJockey

            So when the nice old lady in Nevada asked why she should vote early, I replied, “Well, you know what they say, vote early and vote often.

            I’m the same way & in particular we like that joke in Chicago. I’ve had to remind myself daily when I’m volunteering not to say that one. I practically have to pinch myself every morning.

    • Drexciya

      All you have to say about Douthat is that he used to regularly quote Steve Sailer while publicly dabbling in race IQ “science.” Douthat is among the more dangerous beneficiaries of separating a public writer from the actual beliefs that make what they say/will say more predictable and coherent.

      • Yep. Chances are always really, really good that at the bottom of a “conservative” “intellectual’s” “argument,” there lies either unreconstructed racism or 180-proof misogyny.

        • Robert M.

          I couldn’t disagree more! Some conservative arguments are both racist and misogynist.

          • Dilan Esper

            He used to be much more stridently anti-immigrant too.

            OTOH, he has praised Obama for the way he handles racial issues and says police departments need to stop mistreating black people. I wonder if he has moderated somewhat or whether he just keeps the quiet parts quiet now.

            • sharculese

              Sporadically acting like he wants to be modern is part of Douthat’s MO. I remember a profile from when he was first promoted to the NYT where a paragraph was spent on his hand-wringing about how to talk to the gay people in his life when he didn’t believe they deserved the same rights as him. Never stopped him from fulminating full force against it in his column.

              • efgoldman

                Never stopped him from fulminating full force against it in his column.

                Assholes gotta’ asshole, It’s what they do.
                My daughter (now 35) was astonished at the assholery of some customers, in her first job at CVS. That’s exactly what I explained to her. It has stood her (and me) in good stead.

      • BobBobNewhartNewhartSpecial

        All you have to say about Douthat is that he used to regularly quote Steve Sailer

        Is that guy some kind of behind the scenes puppet master or something? As far as I can tell, Sailer is just some random guy with a blog, but he sure does show up a lot in conversation. What gives?

    • smartalek

      What, you guys don’t have drugs in Minnesota?

    • The Lorax

      I’m in similar circumstances here in blue CA. I was just thinking: this is definitely the highest my dread level has been the whole election. I just can’t get over the fact that the existence of possibly more emails that possibly weren’t looked in an overall empty scandal dominates MSM coverage; whereas that a candidate has a secret back channel to an adversary (who is otherwise trying to throw our election) gets nary a peep.

    • efgoldman

      An arsonist who speaks in complete sentences still wants to burn your house down.

      Douche hat and his RWNJ fellow travelers: “Not my house. That guy’s house over there.

      • GeorgeBurnsWasRight

        Reminds me of a quote from, I believe, Ev Dirksen, about all tax policy essentially boiling down to, “Don’t tax you, don’t tax me, tax that fellow behind that tree.”

  • DAS

    Does Ross Douthat not understand the words used by Senators of his very own party? Cruz, McConnell, et al. didn’t say “we refuse to confirm any SCOTUS nominee that doesn’t accept the doctrine of [whatever the GOoPers are calling whichever theory of jurisprudence they claim to follow at this moment] and, should Clinton be elected, we look forward to working with her while we rigorously and strictly vet her nominees as part of our duty to advise and consent”. What they said was (correct me if I am wrong) “whomever Clinton nominates, we’ll oppose that person”. Even if they are saying “we’ll not allow anyone on SCOTUS unless it’s someone we would nominate ourselves”, that is much more extreme than saying “so long as Clinton’s nominees follow a coherent and legitimate legal doctrine, we’ll give them a fair shake” as Douthat implies they are saying.

    • cleek

      McCain started out absolutist, then when called on it, switched to (paraphrase) “we know she won’t nominate anyone good. that said, we’ll look at who she nominates and treat them appropriately”

      • GeorgeBurnsWasRight

        Technically I believe it was his campaign that issued the modification, thus allowing McCain to avoid saying the words himself, ie, plausible deniability.

    • so-in-so

      The line about it being hard to make a man understand that which his paycheck depends on his not understanding holds true. Also, like most modern “conservatives” he thinks his ideas are right and true and there is no truth to found compromising with those who disagree.

    • delazeur

      Eh, I’m sure that if Clinton nominated a clone of Scalia the Senate Republicans would vote to confirm him. Douthat is saying that nobody to the left of Scalia has a legitimate judicial philosophy.

      • NonyNony

        I am less certain of that. I think some of the Senate Republicans would vote to confirm, but I think some of them would still feel the need to vote no or even try to maintain a filibuster because of the threat of a primary in their home state. “Put a Clinton nominee on the bench” is, for some diehard conservatives, an attack that has almost zero to do with the quality of the nominee and everything to do with giving Clinton a “W”.

        This is also why there could be no deals cut with Obama. They could have advanced their own agenda by compromising a bit, but they would have been savaged by their own voters for giving Obama a “win”. Gingrich saw how this played out in the 90s when compromising with Clinton caused his far right flank to savage him even as Republicans were getting the kinds of things they claimed they wanted policy-wise. It would only be worse now as the parties have become even more polarized.

        • GeorgeBurnsWasRight

          as the parties have become even more polarized

          IMO most of the polarization is on the Republican side. While Democrats have mostly given up on the idea of finding common ground, I think many of them could change their mind if there was any sign that Republicans were also willing to do so. (I’d be truly shocked if this happens in the next 4 years.)

    • smartalek

      There are reasons he is commonly referred to as “Doubt-that.”

  • sleepyirv

    I’m sure Douthat was thinking of Scalia’s originalism instead Roberts conservative “pragmatism” when he’s talking about legitimate judicial theories. So the belief the 11th Amendment doesn’t mean what it says because of reasons. MANY reasons.

    • Scott Lemieux

      “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms…” –Antonin Scalia, Highly Principled and Consistent Textualist

  • Domino

    Is Douthat making that argument, or is he stating someone else’s views? Because if it’s the former, then why do people bother at all with conservative “intellectuals”? Like, what is the purpose of putting out biographical articles of people like Avik Roy, who at the end of the day, is still happy to support Rubio, and ban all abortions?

    I don’t care if Roy has enough self-awareness to write that article in Vox months ago – he still backed (and continues to, unless I’m missing something) GOP policies that only benefit the 1%, and harm 80% of the country.

    Brad Delong (can’t like his website at work) pointed out that if you look at the full text of Romney’s 47% speech, it contains the same themes of Donald Trump.

    “Poor people want stuff for free, Obama is incompetent but competent enough to give government benefits to black and Hispanics, who by the way believe they are entitled to food. I can’t convince them to take personal responsibility, they’re moochers”

    Oh, and then the best part, when Mitt claims he inherited very little.

    • liberalrob

      why do people bother at all with conservative “intellectuals”?

      A very good question.

      “Conservative intellectual” is practically oxymoronic. Emphasis on the moronic.

      • (((Hogan)))

        They’re also a lot like oxen.

    • smartalek

      the best part, when Mitt claims he inherited very little

      By the standards of the crowd he was addressing, it’s not inconceivable that that’s actually true.

      • JohnT

        That triggered me to go find out who the last GOP presidential candidate was who wasn’t a child of extreme privilege. (Answer: Bob Dole. Trump’s dad was a millionaire, Romney’s a famous governor, McCain’s a four-star admiral and G W Bush’s a President (and other suitably august things during W’s childhood).. And before Dole GWH Bush’s dad was a Senator.

        • George Romney was also President & CEO of American Motors from ’54 through ’62. McCain’s grandfather was a four-star admiral too. (May explain something about Captain McCain.)

    • xq

      “Poor people want stuff for free, Obama is incompetent but competent enough to give government benefits to black and Hispanics, who by the way believe they are entitled to food. I can’t convince them to take personal responsibility, they’re moochers”

      These are not major themes of Trump’s campaign. Trump says blacks and Hispanics (and Muslims) will kill you, not that they’re moochers. I think this is a quite significant difference and explains a lot of the division in the Republican party.

      • GeorgeBurnsWasRight

        Unfortunately, “the division in the Republican party” works out to 90-10 at best, probably more like 95-5.

      • Mellano

        And everyone says Republicans don’t know how to compromise . . .

  • DrDick

    liberals lack a sufficiently rigorous constitutional grand theory

    That is absolutely true if you define “rigorous” as “completely in keeping with Ross Douthat’s established prejudices.”

    • ExpatJK

      Well, only cishet white men are capable of rigour, all other genders/races/etc/etc are clouded by emotions and identity politics. Therefore nominations, attempts at governing, etc from said emotionally driven practitioners of identity politics are null and void. QED libs!!

      *sarcasm tag added, it’s getting harder and harder to tell these days*

  • Joe_JP

    Ross Douthat is an idiot.

    There has since the days of Chief Justice Marshall been an understanding states should be treated equally in some fashion. But, strict equality in all things is rarely the test (race would basically be an exception) and especially with the 15th Amendment, there were reasonable grounds in Shelby v. Holder to treat states or part of states differently.

    Anyway, Ross Douthat is an idiot. There has been a strong disagreement regarding proper judicial ideology since the days of Jefferson. Simply not confirming ANYONE even people like Garland who leading Republicans put out as ideal nominations (one is left with the conclusion, bearing false witness is a sin, right? clearly full of shit when they did), is a basic violation of proper republican (small ‘r’) norms.

    • LosGatosCA

      Yes, Well paid, above average vocabulary, but still just a high functioning idiot.

      ETA – let me make one more extremely sophisticated argument – hooray for our side!

  • MacK

    The Republicans may be making a bad bet. First, the courts of appeal are increasingly leaning democratic – 9 of 13 have a majority of democratic appointees and death and retirement will shift the remaining 4 over time. In such a situation the Supreme Court might as well be in Democratic hands.

    Second, the Republican position has been predicated on Ruth Bader Ginsberg being the first of the nine to die – but it was Scalia, whose lifestyle makes that hardly as surprising as people think (he liked his red meat, alcohol and cigar (as does Thomas.)) Assuming Ginberg will go before one of the conservative judges would be unwise – and that would leave the court 4:3 liberal.

    • Thrax

      9 of 13 have a majority of democratic appointees and death and retirement will shift the remaining 4 over time.

      You’re assuming Clinton gets to fill any lower court seats. If they’re blocking the Supreme Court, they’re not going to stop there. Lower-court retirements will shift things every which way.

  • Denverite

    See, the problem is that contemporary liberals lack such compelling constitutional theories as “the powers grated to Congress by Section 2 of the 15th Amendment are constrained by the Equal Sovereign Dignitude of the states, which can be located in the text of the Constitution…hmm, ok, but it is deeply embedded in the bare assertions of John Roberts and Roger Tan…er…Moving right along, Congress’s remedy must be consistent with [standard omitted], but since the chosen remedy has been too effective Congress no longer has its explicit textual powers to enforce the 15th Amendment.” That’s the kind of principled judgifying the noble Republican Senate conference wishes to preserve.

    Don’t forget: The express power to regulate commerce includes requiring a wheat farmer to purchase weight to feed his livestock, but it doesn’t include the power to require individuals — nearly all of whom will participate in the heavily-regulated national health marketplace at various points in their lives — to purchase health insurance to pay for that health care, because [insert whatever facade for “we hate Obama” here].

    • Scott Lemieux

      The express power to regulate commerce includes requiring a wheat farmer to purchase weight to feed his livestock

      But, in fairness, the Supreme Court holding that commercial farmers who accepted federal subsidies had to comply with the relevant federal regulations did destroy human freedom forever.

  • XTPD

    MOTHERFUCKER WHAT THE FUUUUUU%^GEB^HHY$%YU^TR$NYAS^;;776E#@%& (falls to the floor, twitching & foaming at the mouth)

    (5 minutes later): Granted, I was always aware that conservatives have problems with cognitive empathy, but the idea that liberal judicial theory is ispo facto illegitimate was a new one to me:

     Have you ever noticed how conservatives who say the most controversial things imaginable consistently frame such utterances as self-evident, as simple “truth,” explaining with unshakable confidence that anyone who disagrees with them… no, scratch that. Start over:

    Have you ever noticed how conservatives who say the most controversial things imaginable think no one actually disagrees with them?

    They will admit that, yes, people might claim to disagree. But they will explain, if pressed, that those who do so are lying, or nuts, or utter the non-truths they utter out of a totalitarian will to power, or are poor benighted folks cowed or confused by those aforementioned totalitarians. (Which, of course, makes the person “finally” telling “the truth” a hero of bottomless courage.) Or the people who disagree are simply stupid as a tree stump. This is why “agree to disagree” is not a acceptable trope in the conservative lexicon. A genuine right-winger will be so lacking in intellectual imagination—in cognitive empathy—that imagining how anyone could sincerely reason differently from them is virtually impossible.

    • so-in-so

      You could drop out both “judicial” and “theory” and just go with “liberal is ispo facto illegitimate” and cover 98% of conservative “thought” these days.

      I tend to return the favor.

    • This is why “agree to disagree” is not a acceptable trope in the conservative lexicon. A genuine right-winger will be so lacking in intellectual imagination—in cognitive empathy—that imagining how anyone could sincerely reason differently from them is virtually impossible

      .

      For years I’ve thought this has been the heart of our dysfunction. So many conservatives (and to a far lesser extent, I think, liberals, too) are absolutely convinced that their way is the only good and true way, whether in politics, morals, what-have-you, that merely acknowledging the legitimacy of a different opinion is unfathomable to them. Compromise when you’re this convinced of your righteousness would be an evil act.

    • Chetsky

      These days, I tell conservatives they’re moral hypocrites, cowards, unwilling to own the obvious maxim underlying their beliefs, which is

      Feed the homeless to the hungry

      Always riles ’em up.

  • D.N. Nation

    Remember, kids, it’s totally unexpected that someone like Donald Trump could take over Chunky Ross Douthat’s beloved party.

    • so-in-so

      The idea that Trump doesn’t need women’s consent to touch them does, well, “things” for little Ross.

  • CrunchyFrog

    There is a secret decoder manual conservatives are given which tells them which phrases of the bible and the Constitution are to be emphasized in BOLD and which they are to pretend do not exist. It also includes the secret phrases only conservatives can see.

    Terms like “well regulated” and “eye of a needle” just aren’t really there, don’t you see.

  • I guess I appreciate the GOP abandoning the gossamer-thin rationale that refusing to hold hearings on Garland was some kind of noble stand by principled Constitution-humpers and admitting that it is total and complete partisan hackery. Hopefully it will motivate some people to vote them the fuck out.

  • afdiplomat

    i don’t know if Ross Douthat is too unintelligent to understand where his argument leads, or whether he is too cunning to make that destination clear. But the logical end-point of his position is abandonment of elections as a means of governance in favor of force — that is, civil war. Jonathan Chait, in his current article in “New York” magazine (“The GOP’s Age of Authoritarianism Has Only Just Begun”), leading Republicans increasingly assert that their positions are inherently right by nature (or by divine edict), and that mere elections cannot affect their right to put these positions into force. This is the “Confederate worldview,” as Nancy LeTourneau described it in a post on the Washington Monthly’s” “Political Animal” blog on November 22, 2014: that there is “a divinely ordained way things are supposed to be” and that “no process, no matter how orderly or democratic, can justify fundamental change.”

    As Chait points out: “A crucial component to this line of thinking is the delegitimization of the Democratic Party.” Douthat’s comment is right in line with this approach. And since this approach rejects peaceful processes as legitimate means of governance (unless those processes lead to Republican/conservative dominance, in which case they are irrelevant), the only way to resolve this issue is through force. For Douthat, as for Mao Tse-tung, power grows out of the barrel of a gun.

    It is of course not coincidental that the party advocating this idea is dominated by people from the one region in the United States that took Douthat’s thinking to its logical conclusion — which tends to confirm the thinking of the Radical Republicans that the post-Civil War settlement was far too easy on the ancestors of today’s Republican Confederates.

    • thequeso

      He’s since walked this statement back, saying that he was only trying to explain where Burr et al were coming from, but still.

      He woke up on the wrong side of bed today. Probably because off all the state-endorsed Satanism yesterday.

      • LosGatosCA

        He woke up on the wrong side of history and continues to live there unabashedly.

        • Linnaeus

          Douthat’s a Tory, more or less.

      • afdiplomat

        Simply restating Burr’s Confederate worldview is not adequate. if Douthat finds that view abhorrent (as he should, if he remains dedicated to peaceful democratic processes and not to the violent direction in which Burr’s thinking leads), then he has an obligation to say so.

        • efgoldman

          he has an obligation to say so.

          Apparently no RWNJ has any obligation to say anything logical or sensible, ever.

    • Saint Coltrane

      Yeah, they’ve long since exchanged their Burkean fetish for something with a more modern, Carl Schmitt flavor.

      • The Lorax

        Or Nietzsche. Ironic for such “Christian” people.

    • djw

      i don’t know if Ross Douthat is too unintelligent to understand where his argument leads, or whether he is too cunning to make that destination clear.

      This is a pretty good meta-response to a substantial portion of Douthat’s output.

    • Brien Jackson

      This isn’t a total departure from precedent. Democrats did reject Bork, after all, so there’s never been a belief that the Senate owes total deference to the President on SCOTUS nominees.

      • Rob in CT

        Though he got hearings and an up/down vote. The Dems had the guts to actually vote him down.

        The GOP could do that with Garland. They’ve chosen not to, and have spouted all manner of nonsense as to why.

        • Brien Jackson

          Meh, that’s a really fine distinction that doesn’t matter to anyone.

          • so-in-so

            No, Bork had ideas, put into print, that were outside the scope of normal U.S. judicial standards. It isn’t pro-forma, the Senate can reject a candidate for valid reasons and did so. They also approved Scalia, Thomas, Roberts, etc.

            I guess you could argue it NO LONGER matters because one party only cares about power, and the other must adapt to that or be crushed, but it was common to have hearings, debate and approve justices who did not necessarily agree with the majority in Congress, but were not outliers either.

            • Brien Jackson

              This is just another way of saying that Democrats rejected Bork because they wanted to and didn’t think it would hurt them politically. Any norm structure that carves out ideological exceptions isn’t going to work.

              • Joe_JP

                This is just another way of saying that Democrats rejected Bork because they wanted to and didn’t think it would hurt them politically.

                They were aided by full hearings that put his ideas and personality to broad public view. That is a major point of the hearings. I think one reason Republicans did not have hearings for Garland is because they realized he would sell well & it would be harder for every last one of them to vote against him.

                The last point to me is ipse dixit. It has worked. Norms repeatedly further moderation.

                • Brien Jackson

                  Ok let me restate: There is no one whose current opinion on Republican intransigence whose opinion would change if they were formally rejecting the nominee(s) through votes rather than just not considering them.

                • efgoldman

                  I think one reason Republicans did not have hearings for Garland is because they realized he would sell well & it would be harder for every last one of them to vote against him

                  Especially because they had voted, nearly unanimously, for him for the appeals bench, and were on record as praising Garland to the skies.

              • Colin Day

                Yeah, because the Senate had never rejected a nominee before. As if Wikipedia had an article on https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States

                • Colin Day

                  Also, John Marshall was appointed by John Adams on Jan 20, 1801 and confirmed Jan 27, 1801. This is when the Presidential term started on March 4. Peter Vivian Daniel was also a lame-duck justice (appointed 2/26/1841, confirmed 3/2/1841). Also, William Woods was a lame-duck Republican nominee approved by a Democratic Senate.

                  Also, some appontees received no action.

      • djw

        I think what’s being talked about here is categorically different. If the Republicans held hearings and a vote on Clinton’s (very liberal) first nominee, and voted her down, then held hearings and a vote on her (less liberal but still liberal) second choice and provided enough votes to confirm, I really wouldn’t have much of a problem with that.

        The Democrats position then was “we’ll examine, evaluate, and hold a vote on each nominated justice on the merits, within the universe of possible Reagan appointees, ie, conservatives.” That’s…fine.

        • Brien Jackson

          Well you can’t very well extrapolate that to the contemporary time either. A Republican President isn’t going to compromise down their nominations in that way, and frankly a Democrat probably won’t either. Clinton could hardly hold her own coalition together if she capitulated to Republicans and nominated someone to uphold Shelby County and Citizens United.

          • rhino

            The whole point of the hearings process is to *require* that compromise, so that both sides have input.

            You are suggesting, instead, that the *only* time a position can be filled is when one party has control of senate and presidency. That’s simply ludicrous.

      • afdiplomat

        Senators of course retain the right, even under previous understandings, to object to a particular nominee. That’s what happened to Bork. But it is indeed a revolutionary step to declare, even before an election takes place, that if the “wrong” person is elected that person’s nominees will be rejected sight unseen. As David Graham makes clear in a post today on “The Atlantic’s” website, this practice leads in the direction of making the United States ungovernable except when one party controls (at a minimum) both the Presidency and the Senate. That’s not a difference in degree; it’s a whole new governing paradigm.

    • JR in WV

      This is why I, a life long Democratic pacifist, have a Concealed Carry permit and several legal weapons. To defend myself from Republicans who have decided that old liberal men with beards should be burnt at the stake, pressed to death, or sent to war against Godless Muslims in the Middle East Oil Patch.

      I understand that I will have no chance of winning against a huge Theocon militia, but I will not go into that darkness all alone. 2nd Amendment Hurrah!

  • thequeso

    https://twitter.com/DouthatNYT/status/793469556920578048

    Ross is going all-in on “wit” today:

    @mckaycoppins “Divisive” very often means “political strategy that conservatives adopt that journalists are afraid might work.”

    • I think that captures his problem in 140 characters or less. He thinks that’s clever because he thinks that it’s true. I think he’s projecting. By its nature, a liberal mind will be open enough to try whatever potential solution seems like it might work. The conservative mind is closed off to potential solutions that go against its worldview. He can’t understand that non-conservatives reject conservative ideas not because they were conceived by conservatives, but because we don’t think they can work.

      • so-in-so

        To be fair, some will “work” just as intended. It’s just that the intended results are terrible.

      • Rob in CT

        That’s not what he means by “might work.” He’s not talking about policy outcomes. He’s talking about political strategy. As in “Republicans simply refuse to appoint any judges selected by Democrats and eventually gain power to appoint judges they want.”

        • so-in-so

          But – Douthat complains loudly about liberal political stratgies that ‘work’.

          Heh, spell check see’s “Douthat” and wants to replace it with “handout”.

    • catclub

      So that’s why Barack Obama was always called divisive!

    • Srsly Dad Y

      He’s half right, though — “divisive” is beltway speak for any political strategy that corporate liberals worry might work.

  • Joe_JP

    Oyez.com posted opinion announcements for the 2015 term.

    For instance, Justice Breyer has a longer than usual opinion announcement in the abortion case and Alito dissents from the bench:

    https://www.oyez.org/cases/2015/15-274

    The US Supreme Court should release these useful quick summaries of the opinion on their own website.

  • Planner8

    Douthat is just lashing out because the Pope is making nice with Lutherans (!), which leaves his vision (see Inquisition, Spanish) of the “One True Church” a tire fire.

    • Murc

      God only knows how Dreher feels about that. I wonder if he’ll do what all the kool kids do and convert to Eastern Orthodox?

      • He should share a bunk with Rod Dreher at the Benedict Option Motel. They can share a cry about Gay SJW Mafia persecution until they fall asleep in each others warm embrace.

        • The Lorax

          When they get done with the “God’s Not Dead” series, there’s a biopic in this.

      • Planner8

        What I’m waiting for is the televised Bill Donohue explosive diarrhea …. followed in a few days by Cemetary Hedge Fund, LLC managing partner Dolan offering his admonitions.

    • Yankee

      The problem is these guys never believed Revelation. Doubtful whether Douthat has even read all the way through it. … or, those aren’t tires burning, son ….

    • efgoldman

      Douthat is just lashing out because the Pope is making nice with Lutherans

      Yes, but he also said today that John Paul2’s prohibition on women priests is correct and stands. In the real world, where heretics are no longer burned at the stake or drawn and quartered, I think the second is more harmful than the first is helpful/useful.

  • JustinVC

    Isn’t this all very obvious? It has nothing to do with the Constitution per se, and everything to do with Shelby County. Black turnout is down for a reason. Republicans know that they can’t win elections without [Voter Suppression/Voter Protection] laws due to [their own overt racism/fraud!]. If they allow a Democratic appointee, then it puts the odds they’ll be able to win elections at a statewide or presidential level down significantly for decades to come; and, if gerrymandering is the next target, the house will be gone soon thereafter. Self preservation is a marvelous thing.

    • catclub

      Black turnout is down for a reason.

      Is it? I know black turnout for 2012 was at a higher percentage than for whites in 2012.

  • smartalek

    The Reformicon Faction Speaks

    Waitaminnit…
    So what you’re saying is, this is the position of the rational ones among the Publicans??

    [heads for the medicine cabinet, then shifts course toward the liquor cabinet]

    • efgoldman

      So what you’re saying is, this is the position of the rational ones among the Publicans??

      Nobody knows; a rational Republiklown hasn’t been seen in longer than the ivory-billed woodpecker.

  • Brien Jackson

    Ya know, to be fair, neither Douthat nor conservatives more generally any kind of crazy on this matter. The Supreme Court matters A LOT to American political outcomes, and their views reflect a belief that political outcomes matter A LOT and, thus, parties should avail themselves of all available procedural tools to achieve them. Frankly, if the rolls were reversed and a Republican President wanted to tip a liberal court to an extreme right-wing one I’d absolutely want a Democratic Senate majority to flatly reject any conceivable Republican nominee, norms be damned. What is crazy here are the Constitutional rules, which were written without taking into account either the scope of judicial review or the reality of politics where two sides actually care about policy outcomes. I don’t know if it’s defensible, but in any case I don’t know that focusing on a demand for Republican capitulation is a viable solution either, because you sure as hell couldn’t get me to concede on the nomination of another Alito/Roberts if they were going to swing the balance of the court.

    • Joe_JP

      Frankly, if the rolls were reversed and a Republican President wanted to tip a liberal court to an extreme right-wing one I’d absolutely want a Democratic Senate majority to flatly reject any conceivable Republican nominee, norms be damned.

      The Dems are not trying to “tip” the Court to “an extreme” — Garland shifts things somewhat, for example — so that wouldn’t be what is happening. Even if she gets to pick Kennedy’s replacement, doubt it would be some extreme left choice. At some point, however, you just have to accept that Presidents get to pick justices and membership shifts. Nixon (like FDR) was going to shift the ideology of the Court. Elections have consequences. The Senate moderates this but only so far.

      What is crazy here are the Constitutional rules, which were written without taking into account either the scope of judicial review or the reality of politics where two sides actually care about policy outcomes.

      The “scope” of review occurred over centuries. Multiple framers understood judicial review was going to be important. James Madison cited it when introducing his speech in support of a Bill of Rights. Party politics also developed over time.

      Some tipping point might have occurred in recent years warranting changing the rules. But, until fairly recently, not sure how the current rules did not make things workable. Yes, the Constitution basically infers a minimum of good faith not shown by many Republicans these days.

      • Brien Jackson

        Your first paragraph is silly. A) Basing norms around the recognition that Bork was extreme and Garland is not isn’t any kind of standard at all. B) Elections don’t really have consequences at all in the shifting of the Court; the individual whims of justices and unpredictably distributed deaths do. Given that reality, expecting deference to the President is insane.

        • Joe_JP

          You spoke about roles being reversed & raised the specter of extreme right-wing shifts etc. But, that isn’t comparable to the current situation.

          Shifting to your reply, yes, it is “some kind of standard” to treat an objectively moderate pick different than an extreme one. The Republican approach challenged by Scott would have blocked even Kennedy. I’m not sure how responsive that is to my comment but anyways, I think it is.

          The “consequences” saying is usually applied here WHEN there is a vacancy or some other important choice to be made. Then, yes, an election would have consequences — when the choice turns on who is President. Today, we already have a vacancy and three justices up in years. There is often a reasonable chance of one happening. The “whim” of the justices, for instance, repeatedly depend on who wins. It’s something voters should factor in.

          So, I don’t see the silliness myself or how expecting deference (not complete deference either) is “insane.”

    • ColBatGuano

      I’d absolutely want a Democratic Senate majority to flatly reject any conceivable Republican nominee, norms be damned.

      Sorry, but I can’t agree. I would hate it, but would also recognize that it was a failure of politics on the Democrats part that led to that situation. Gumming up the works of government is always going to hurt Democrats more.

      • Brien Jackson

        Really? If RBG died in 2007, both after and before huge Democratic electoral wins, we should have confirmed Bork 2.0 because Democrats by definition failed electorally?

        • ColBatGuano

          If RGB had died in 2007, then yes, I’d expect the Democratic Senate to do their job and confirm a SC nominee. And Bork is a perfect example of how they do their job. He never made it on the court.

          • Brien Jackson

            So coming off a huge electoral victory and dealing with an historically unpopular President, Democrats would have to rubber stamp a Republican nominee because democracy.

            I submit that to state it is to illustrate how imherently insane it is.

            • ColBatGuano

              Well, I have a different definition of insanity I guess. Again, destroying the mechanisms of how government functions inherently works against Democrats. Blocking W from a appointing justice leads to elimination of the filibuster by McConnell in 2010 in my opinion. How’s that work out for us?

              • so-in-so

                You’ve given away the point, there is no requirement that Congress approve an obviously unqualified candidate. Nor that “works as a professor at a law school, but thinks Dred Scott was a terrific decision that absolutely should still be in effect” constitutes a “qualified” candidate. OTOH, yes, a reasonable candidate should be approved, and a hearing on ANY candidate held to publicly demonstrate if he/she is qualified and if not, why not. regardless of the makeup of the court that follows.

                Given that the GOP has tipped their hand that what should happen isn’t what will happen, then bets are off. Politics isn’t Calvin ball where one side plays by rules the other side makes and changes at will.

                • Brien Jackson

                  You also can’t just carve out an “extreme” exception where extreme describes mainstream positions of one of the two major parties

                • mds

                  “works as a professor at a law school, but thinks Dred Scott was a terrific decision that absolutely should still be in effect”

                  Psst! Pete Sessions isn’t a law professor.

              • Brien Jackson

                You do realize that Democrats were the Senate majority in the timeframe of my counterhistory, right?

                • ColBatGuano

                  Yes, I do and them voting against an extremist candidate like Bork would be within the realm of how the Senate works. Refusing to vote on any candidate W nominated, like the R’s vow today is not.

                • Scott Lemieux

                  Yes, and that Senate then confirmed a conservative Reagan nominee, so what this has to do with the serial rejection of a president’s nominees I have no idea.

                • Brien Jackson

                  What nominee could Dubya have conceivably put forward in 2007 that Democrats shouldn’t have denied confirmation? Hell at this point even Kennedy is unacceptable.

                • sharculese

                  Hell at this point even Kennedy is unacceptable.

                  He is? I mean, if a Democrat tried to appoint Anthony Kennedy to the Supreme Court my response would be “come the fuck on, bro,” but if that’s what a Republican is will to put up, absolutely I’ll take it.

                • Brien Jackson

                  “He is? I mean, if a Democrat tried to appoint Anthony Kennedy to the Supreme Court my response would be “come the fuck on, bro,” but if that’s what a Republican is will to put up, absolutely I’ll take it.”

                  Um…yes? Kennedy is an abject hack who sided with Alito and Thomas on Sebelius and King, putting his name to a ludicrous reading of statute for the naked intention of advancing partisan goals. He also signed on to Citizens United, Bush vs. Gore, and probably a dozen others I’d think of with five more minutes. I’d absolutely not be fine replacing, say, RBG with a Kennedy clone.

                • ColBatGuano

                  Yes, now Kennedy’s decisions look bad, although I’d still argue within a continuum of SC standards, but when nominated he was an entirely bog standard choice and rejecting him would have made Democrats look foolish. You appear to believe that the Republicans current stance is acceptable. I don’t.

        • so-in-so

          If there were a 60 member GOP majority in the Senate, we would have choice. If not, no, Bork 2 isn’t necessary but probably Roberts 2.0 or even Alito 2.0 would normally be a go.

          • Brien Jackson

            Only four Democrats voted to confirm Alito.

            • so-in-so

              Which, combined with the GOP votes, presumably exceeded 60 (or the Democrats chose not to filibuster). Either way, a “normal” result before the GOP decided “Rule or ruin” was their actual working strategy.

              • Brien Jackson

                It’s not particularly normal at all. It was, I believe, the lowest total ever for a confirmed judge, and Breyer and Ginsburg both had 90+ votes to confirm. Democrats taking a nominee that was going to be confirmed and choosing to affirm token opposition rather than feigning huge bipartisan support was a noticeable departure from established norms.

                • so-in-so

                  I suspect you had two trends working in confluence. One being the increasing polarization of Congress and the other being a Presidency more willing to nominate extremist candidates for SCOTUS (Harriet Meirs anyone?).

                • Brien Jackson

                  Well yeah, Democrats recognized that they could lodge protest votes with no consequence

                • UserGoogol

                  Clarence Thomas had fewer: 52 votes. (11 Democrats voted for him, and 2 Republicans voted against him.) Although there were issues other than judicial philosophy which made that a close vote.

        • Joe_JP

          Using the principles stated by Democrats at the time, Bork 2.0 would have been deemed “extreme” and they could have by up and down vote, after hearings, voted against him.

          The Republicans did not do that for Garland. Who isn’t Brennan 2.0. This would have took time and very well might have run out the clock. If not, if Bush picked Bork 3.0, again, a truly extremist choice like that could be rejected.

          If McCain won in 2008, he very well might have chosen some O’Connor type to replace RBG. If he did, yes, the Senate should confirm, even though it would shift the Court to some degree to the right. The people elected a Republican President and at some point, it is anti-democratic and bad policy to simply refuse to fill a vacancy in the Supreme Court in that fashion.

          (The “big” victory involved multiple blue dogs that would find such an O’Connor justice acceptable.)

          • Brien Jackson

            But this doesn’t work
            Yes Presidents are elected, but so are Senate majorities. The only way the system holds up is through demands that the Senate basically relinquish its power to reject nominees it doesn’t like because reasons. It’s absurd.

            • Joe_JP

              Yes Presidents are elected, but so are Senate majorities. The only way the system holds up is through demands that the Senate basically relinquish its power to reject nominees it doesn’t like because reasons. It’s absurd.

              The Senate has the raw power to reject any nominee they want, but that is unworkable in practice. So, yes, you have to determine “reasons” not expressly in the document to formulate norms here.

              Things like basic incompetence etc. One norm is to reject “extreme” nominees, especially when the President and Senate is held by different parties. So Bork, no; Kennedy, okay. The power to nominate does give the POTUS some assumed benefit of the doubt. Just too many offices esp. in modern times to take that away though if you are a Republican, maybe a badly operating federal gov’t is fine. Dems though care more about that.

              If the Senate and President is the same party, “extreme” is interpreted in a looser way. Elections have consequence. Finally, even in 2008, the Dems eventually had 60 votes because of multiple blue dogs.

              It matters that Republicans are playing hardball even with an objectively moderate pick. A McCain presidency and Democratic Senate would, done right, would force McCain to pick a less radical choice. If he did, Dems should not say “no” to everyone just because it would shift the Court somewhat. The people elected McCain. The Constitution gives him the edge by giving him nominating power. The Senate moderated him, just like should have happened with Garland — with a Democratic Senate, more likely a more liberal younger choice.

              • Brien Jackson

                One problem here: How does Bork classify as extreme, exactly, when he was pretty close ideologically to the popular President who appointed him after a landslide victory?

                • ColBatGuano

                  Come on, Bork’s “theories” were extreme even for some members of the Republican party at the time. 6 Republicans voted against him and he lost 42-58. Bork was the leading edge of what they have become, not the center of the party.

                • Brien Jackson

                  Ok, but we’re defining the President’s right to deference through his presumed greater electoral legitimacy. So how do we square that with Bork’s unacceptable extremism?

                  The point is that this doesn’t hold water, and you can’t make the current rules work without norms built on sand foundations.

                • Bruce B.

                  As per NPR:

                  He opposed the Supreme Court’s one man, one vote decision on legislative apportionment.

                  He wrote an article opposing the 1964 civil rights law that required hotels, restaurants and other businesses to serve people of all races.

                  He opposed a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples. There is no right to privacy in the Constitution, Bork said.

                  And he opposed Supreme Court decisions on gender equality, too.

                • LosGatosCA

                  I’ve always been of the opinion that Bork’s real problem with the Democrats was his role in the Saturday night massacre. The other reactionary stuff was sufficient to reject him, but the back story was unless Bork was more accommodating on his views, his role in facilitating obstruction of justice in the obvious crimes against democracy was just too much.

                  He was just too much of an asshole on too many issues.

    • mpowell

      I tend to agree. Most that’s because a court with 8 justices is not that big of a problem for governance compared to a lot of the other brinksmanship we will typically see. For example, the debt limit is a much bigger lurking catastrophe to happen.

    • AMK

      What is crazy here are the Constitutional rules, which were written without taking into account either the scope of judicial review or the reality of politics where two sides actually care about policy outcomes.

      Sure, but in fairness to the founders, there’s no way to write any kind of governing document that could really bridge the divide between the the modern GOP and the world the rest of us live in. A British parliamentary system with an unwritten constitution based entirely on norms and precedent would have collapsed into chaos years ago.

      • Brien Jackson

        I don’t think that’s ultimately the problem here. Even if we didn’t have a crazy problem, the rules still potentially requires one party to consent to a judge who will have a lifetime appointment to invalidate their agenda. It’s actually even dumber in a world with two sane, normal parties.

        • AMK

          Two sane, normal parties would by definition have enough in common that they would not be willing to shred democratic norms for the sake of policy outcomes.

          • Brien Jackson

            Well that’s kind of the rub: the norms in question aren’t democratic at all.

        • afdiplomat

          I’d suggest that this kind of approach is precisely the problem. Federal judges have a “lifetime appointment” for the purpose of deciding cases; they are not appointed to “invalidate [the] agenda” of any political party. That’s where the nomination of Merrick Garland is so indicative. He’s not a political functionary or a political hack (as, arguably, Clarence Thomas is). While Democrats no doubt hope he would endorse their political agenda in his judicial activities, his background provides no guarantees. Rather, he simply passes the test of being an eminent member of a vitally important circuit court. His nomination is well within any reasonable norm, and there is no likely case against him on substance that any Republican could make with any sense of truth.

          In this context, refusing even to discuss Garland’s nomination in a Senate hearing is really unprecedented; and along with Republican muttering about refusing to confirm any Clinton nominees, it leads toward making governance impossible unless one party holds both the Presidency and the Senate. That’s not an incremental change; it’s a whole new governing paradigm.

          • Brien Jackson

            I think this understates the historical role of the court in political questions, but it’s certainly laughable given the quality of conservative “argument” during the Roberts/Rehnquist Court era. And if Garland doesn’t oppose the Republican agenda in the form of Citizens United and Shelby County, Democrats better damn well demand the withdrawal of his nomination.

            And I don’t get why you think your paragraph is particularly insightful. It IS impossible to govern with a divided Presidency and Congress in a world where the two parties give a damn about outcomes. The Madisonian system basically only works in instances where a) one party can rack up huge majorities in Congress and hold the Presidency as in the FDR-LBJ eras, or b)elites don’t really have any kind of major disagreement they’re invested in, and can work out kinks in governance by “compromising” over minor matters while largely agreeing about the central matter, or c) where everyone agrees to take a transparently silly, borderline nihilisitc approach to government. This is where the “well I think that this piece of legislation would be a total disaster for this country or that this SCOTUS nominee would lead the country in a terrible direction for a generation or more, and hey, we have this perfectly legal procedural tool available to us to stop it, but golly gee we’re just not going to do that and acquiesce to what we think is a disaster forms NORMS!”

            The U.S. rules of government are just flat out dumb. They’re the product of lack of foresight, political compromises, and a long time of ignoring potential problems thanks largely to elite consensus (or the fact that they’ve generally benefitted elites). The only way you can even make it work in theory is to come up with informal, arbitrary rules that one side must capitulate, or to essentially imagine that politicians/parties/voters don’t actually care about outcomes and are just being cynical/malicious in engaging in procedural radicalism. Ted Cruz’s views might be evil, but I don’t see any reason to doubt that he, and his compatriots, are sincere in those evil views.

        • so-in-so

          It worked for 200 years. With relatively (at least by present standards) “sane”. Because for most of that period both parties wanted to govern, as opposed to now when one wants a dictatorship or destruction.

          • Brien Jackson

            Well, with notably rare exceptions during the 1820-1880 range.

    • Chetsky

      ISTR a certain Thomas being put in Thurgood Marshall’s seat, no? Dems went along with that, no?

  • Philip

    Say what you will about the Antonin Scalia “That which produces the most suffering is self evidently correct” theory of constitutional and statutory interpretation, at least it’s an ethos!

  • Thrax

    Have any journalists thought to ask these senators “so no Supreme Court seats should be filled when the Senate and President are from different parties? When did you discover this? Why have dozens of justices been confirmed in that scenario in the past, including Thomas and Kennedy on the current Court, and Stevens, Burger, Blackmun, Powell, and Rehnquist not long before? And don’t give me ‘not when it would shift the balance of the Court.’ Thomas for Marshall was an enormous shift in the balance of the Court, and a Democratic Senate confirmed Thomas.”

    Or if that’s too long-winded: “Why should a future Democratic Senate confirm a Republican President’s nominees?”

    These are, you know, relevant questions. Had this approach been in effect in the ’50s, the Court would have been down to 5 members by 1960. Had it been in effect in the late ’60s and throughout the ’70s, the Court would have had 4 members in 1975 and 1976. Wait, strike that, a senile Justice Douglas might have been the fifth vote, rather than his colleagues forcing him off the bench. Can’t see that causing any problems.

    I guess this particular norm was going to get blown up someday, but it’s really going to screw up the judiciary.

    • rea

      so no Supreme Court seats should be filled when the Senate and President are from different parties?

      Oh, that’s not their position at all. No Supreme Court seats should be filled when the President is a Democrat.

  • Colin Day

    Off topic: What if the President has been impeached and the Chief Justice dies. Does that mean the Senate cannot proceed with a trial? If so, why would the President appoint a Chief Justice in such a case?

    • (((Hogan)))

      “Suppose that you didn’t make your Easter duty and it’s Pentecost Sunday, the last day, and you’re on a ship at sea. And the chaplain goes into a coma! But you wanted to receive. And then it’s Monday, too late… But then you cross the International Date Line! Would that then be a sin then, Father?”

      –George Carlin

    • UserGoogol

      Apparently the law is that if the Chief Justice dies, the senior justice (Kennedy, currently) takes the job of acting Chief Justice, which has happened a few times. (Most recently, John Paul Stevens filled in after William Rehnquist died.) You could nitpick the difference between acting as Chief Justice and actually being Chief Justice, but the Constitution isn’t really specific enough on the matter to overrule the practical reality that if 2/3 of the Senate wants you out of the office you’re in trouble.

  • Joe_JP

    now Kennedy’s decisions look bad

    Bork criticized Griswold v. Connecticut. He probably would have been the fifth vote to truly overturn Roe v. Wade. He wouldn’t write opinions overturning Bowers, support same sex marriage or do things (to cite another thing) like strike down the death penalty for those under eighteen. And, no, Kennedy didn’t vote with Alito and Thomas in King v. Burwell. That was 6-3. Roberts didn’t either, showing even there some sense of limits matter.

    ANY Reagan appointee can be cited here. O’Connor suddenly becomes a total reprobate on Bush v. Gore alone, perhaps, but she still is a better choice than various other conservatives. Votes regarding abortion, campaign finance etc. show this.

    • rea

      Bork thought Brown v Brd of Ed was wrongly decided and that the Civil Rights Act of 1964 was unconstitutional.

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