Thread by @jholbo1

Let me qualify my argument that D's should not attack Amy Coney Barrett.

P1 Horrible as he was, Scalia had the paper qualifications to be an SC judge and R's loved him for his relentless, results-oriented, activist jurisprudence.

P2 On paper Barrett isn't worse than Scalia. 1/

C Barrett is qualified to sit on the SC, if R's really want her.

C is true. R's have the right to inflict Scalia-grade damage on the republic by appointing bad, unprincipled judges. It's bad! They should be ashamed. It shocks the conscience. But that's the system. 2/

So D's should not die on the hill of the argument that no one like Scalia should ever be an SC justice. Scalia WAS a justice. He served. He is lionized on the right. Thus, there is precedent that his level of shenanigans, from the right, is acceptable SC jurisprudence. 3/

Seriously: sometimes R's appoint justices the left thinks are bad. And sometimes D's appoint justices the right thinks are bad. (And the D's are right, by the by!) You have to be a realist about it. You cannot insist R's never have the right to appoint right-wingers. 4/

But you can insist that IF the R's are going to appoint right-wingers, D's need to have the right to balance them out with moderates at least. Nothing else is stable and acceptable. The price of ignoring this is the court loses legitimacy. That's on R's if they go for it. 5/

So the argument is about the system, not the individual. Letting the framing be about the individual - Barrett - is a fatal slip, rhetorically and even substantively, because it puts the R's back in a much less bad argumentative posture. 6/

Arguing that Barrett - who is no worse than Scalia! - is unqualified to serve amounts to implying that Scalia should never have served. Currently one or two R's feel a bit of (what was the word?) - shame! Yes, it was called 'shame'. One or two R's may feel a vestigial twinge. 7/

Well, arguing that Barrett is tout court unqualified for the court will clear that right up and for good. R's will be able to wad their shame into a ball and focus instead on how D's are bullying them for being 'originalists'. Which is nonsense on stilts. But here we are. 8/

Rather than give R's invalid - but psychologically ideal - means for confabulating away their genuine guilt and hypocrisy by changing the subject to whether even Scalia was ever acceptable, D's should focus on the better argument that a 6-3 court is wildly unbalanced. 9/

Here it is great to critique Barrett for the kinds of decisions she's handed down. That's good! Do that! I should have said more about that. Emphasize the evidence that she's a partisan extremist. But within the frame that she will be on a 6-3 court, voting Republican. 10/

The problem with the Catholic stuff is a lot of valid critiques of her jurisprudence and theory sound like things a person might say, instead, for a bad reason. The Dems aren't anti-Catholic. That's nonsense. The D's are much stronger on religious liberty than R's. 11/

It's totally illogical of the R's to argue that, because there could be a bad reason for opposing Barrett's jurisprudence - namely, anti-Catholicism, or hating moms or whatever - that therefore the opposition can't be for the good reasons. That's stupid. But - 12/

The R's will make a point of willfully mishearing and flopping around, theatrically, pretending there has been some awful, anti-mom, anti-Catholic foul committed. This is kayfabe and lies, but there is way to prevent it, rhetorically. So better to pick other shots. 13/

Don't make any critiques of Barrett, however valid and pertinent, that can be willfully misconstrued by Hugh Hewitt as anti-Catholic, no matter how ridiculous that misreading of real, valid concerns is. It's just a loser to go there. 14/

One last thing. Looking over her 'originalist' writings, I think the time has come to revisit that philosophy, in questioning. The problem is basically that 'originalism' is so flexible it allows very results-oriented, partisan judging. Hence Scalia's record. 15/

If originalism gives you a story to tell, to get results you think would be good, tell the originalist story. If it doesn't, if the results would be bad, ignore your own philosophy. That's it. 16/

Originalism is nuts (as Scalia admitted) and 'originalism, but only when I like it' (Scalia's approach, and Barrett's) is unprincipled. And that's why we need partisan balance on the court, to maintain credibility. 'Originalism' is no check on activism. 17/