"Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?"

Asks Ian Millhiser in "Sotomayor and Kagan need to think about retiring/The US Senate is a fundamentally broken institution. Democratic judges need to account for that in their retirement decisions" (Vox). 

Is this a ludicrous suggestion? Millhiser has no news of ill health from either Justice (though "Sotomayor has diabetes"). His main worry seems to be that the Democrats are going to lose power — and for a long time. But at least they have the Senate and the presidency for these next 2 years. They could slot in 2 reliable liberal Justices — young Justices, 20 years younger than Sotomayor and Kagan. So give them the chance to do it while they can. That's my paraphrase of Millhiser's position. 

Millhiser has a dark view of the Democrats' chance in 2024:

"Seriously, shout out to whoever the hero was within the Supreme Court who said 'f-ck it! Let’s burn this place down.'"

Wrote Ian Millhiser, of Vox, quoted in "Before Finally Overturning Roe, Supreme Court Must Block Yet Another Insurrection Attempt" by Mollie Hemingway (at The Federalist).

Hemingway continues: 

Brian Fallon, the former Hillary Clinton campaign spokesman who became the leader of a dark money group behind the fight against the nomination of Associate Justice Brett Kavanaugh, issued a pretty clear call for intimidation of the court: “Is a brave clerk taking this unpredecented [sic] step of leaking a draft opinion to warn the country what’s coming in a last-ditch Hail Mary attempt to see if the public response might cause the Court to reconsider?” 

"He could easily name Merrick Garland, who is a fine man," said Orrin Hatch a few days ago.

"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him."

And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!

ADDED: "Who is Merrick Garland?"

Garland’s relatively advanced age [63] may help explain why Hatch floated the DC Circuit chief judge as his ideal Obama nominee. Another factor that almost certainly played a role is Garland’s reputation for moderation. In 2003, for example, Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States” — an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush....

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”...

The Garland nomination.... appears to be an attempt to box in Senate Republicans who’ve refused to confirm anyone Obama nominates.

But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game. Other names are saved for other games.

"Bernie Sanders lets us know that he has no idea how the Supreme Court works."

Says Jaltcoh, displaying a tweet where Bernie Sanders said: "Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions."

IN THE COMMENTS: Fritz said:

As a professional socialist, Sanders has pretty much made a career out of not knowing how things work. 

ADDED: At ThinkProgress: "Why Bernie Sanders’ Misinformed Supreme Court Tweet Matters."

"Justice Scalia Blows Creationist Dog-Whistle During Graduation Speech At Catholic High School."

A Think Progress blogger (Ian Millhiser) feels the need to ignore the humor and lightness of spirit on a little speech given at the Justice's granddaughter's high school graduation:

“Class of 2015, you should not leave Stone Ridge High School thinking that you face challenges that are at all, in any important sense, unprecedented,” Scalia said, adding that “Humanity has been around for at least some 5,000 years or so, and I doubt that the basic challenges as confronted are any worse now, or alas even much different, from what they ever were.”

Meanwhile, at The New Yorker, there's a new short story by Jonathan Safran Foer ("Love Is Blind and Deaf") that begins:

Adam and Eve lived together happily for a few days. Being blind, Adam never had to see the oblong, splotchy birthmark across Eve’s cheek, or her rotated incisor, or the gnawed remnants of her fingernails. And, being deaf, Eve never had to hear how weakly narcissistic Adam was, how selectively impervious to reason and unwonderfully childlike. It was good.

They ate apples when they ate and, after a while, they knew it all. Eve grasped the purpose of suffering (there is none), and Adam got his head around free will (a question of terminology)....

What say you?

"The Prize For The Most Racist Interview Of A 2016 Candidate Goes To Bloomberg’s Mark Halperin."

Writes Ian Millhiser at Think Progress (who's no fan of Ted Cruz (the caption over there says "Bloomberg’s Mark Halperin, who somehow managed to act like a bigger jerk than Ted Cruz")):



"The interview sparked outrage among conservative writers over the weekend. Hot Air called it a 'train wreck.' Twitchy mocked 'Bloomberg Politics reporter-turned-ethnic policeman Mark Halperin.' PJ Media’s Rick Moran opined that '[a]sking Cruz to say something in Spanish is akin to asking a black person to eat watermelon or start dancing.'"

Oh, look! A liberal is talking about whether something can be "squared with the Constitution."

Normally, law folk of the liberal persuasion mock those who think constitutional interpretation can be done like that. But here's Ian Millhiser at Think Progress writing under the headline "The Eleventh Circuit’s Affordable Care Act Decision Cannot Be Squared With The Constitution."

Millhiser quotes the majority's characterization of its task:

In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.

Rather than acknowledging the sophistication of the judges' approach to legal analysis, Millhiser says:

This is one way to evaluate whether a law is constitutional, but a better way is to ask whether the law can be squared with text of the Constitution. 

He proceeds to quote the text of the Commerce Clause. (Of course, he doesn't stop there, but goes on to claim that there's virtually no limit to what Congress can do in the name of regulating commerce as long as "it does not violate another textual provision of the Constitution." Note the use of the word "textual," as if he would limit those other constraints to what is written in particular text. The obvious hypo: Could Congress ban abortion using its commerce power? Millhiser? Millhiser? Millhiser? Millhiser?)