After the Future

Pack the Court 3

Much of the discussion about Barrett’s nomination has focused on social issues, like abortion, guns and same-sex marriage. They’re all important, obviously. But they are not the issues that animate many activists and wealthy campaign donors who have spent decades pushing for a conservative overhaul of the courts. Koch gave that speech in 1974, and in the almost five decades since, the conservative judicial project has made a lot of progress. The Supreme Court and lower courts have made it harder for labor unions to organize, harder for consumers and workers to fight corporate fraud and easier for wealthy Americans to give millions of dollars in campaign donations, often secretly. These rulings are one reason that the incomes of the very rich have risen so much faster in recent decades than incomes of the middle class and poor. “For the past half-century, the Court has been drawing up plans for a more economically unequal nation,” Adam Cohen, a former member of the Times editorial board, wrote in his recent book, “Supreme Inequality.” David Leonhardt in the NYT Daily Briefing

Liberals and Conservatives are so caught up in culture war issues that they don't understand the real dangers posed by the 1% where they share common ground. I've been preaching that for years, but liberal elites don't care because they benefit, the poor don't care because they're in despair, and cultural conservatives don't care because they'd prefer to stew in their resentments. And all the while the Koch brothers manipulate the legislative and judicial infrastructure in such a way that while all the political energies are focused on arguing about abortion and guns in the front parlor, they sneak in through the back to clean the house out. 

 

The Kochs' long game is to anticipate that their ALEC agenda in the legislatures will break down and people will finally start to push back. When they do, they'll be thwarted in the courts suffused now at every level with right-wing political hacks or constitutional fundamentalists from the Federalist Society. When there is a conflict between the interests of property and the interest of human beings, you can count on these originalist to side with property. They have "respectable" arguments not because they're interpretation of the constitution aligns with what is truly just, but because the constitution is a deeply flawed, indeed 'unjust', document that in most respects favors the interests of capital over the interests of ordinary citizens. 

 

So given that the only remedy for these constitutional flaws is within the context of the constitution, the perfectly constitutional means of increasing the size of the courts must be taken to neutralize the impact of the fundamentalists to allow for the legislatures to do the will of the people who elected them.

 

Some will argue that we should wait until we see how the court rules, but I fear that everybody is so focused on abortion, guns, and gay marriage, that no one will care when the court thwarts legislation that addresses income inequality. Liberal elites will back off court packing as a remedy if the courts punt on the cultural issues but remain aggressive on protecting the interests of  the Kochs and other one-percenters against the interests of the rest of us. 

Quote of the Day: Simone Weil

Art has no immediate future because all art is collective and there is no more collective life (there are only dead collections of people), and also because of this true breaking of the pact between the body and the soul. . . .Since 1914 there has been a complete cut. Even comedy is almost impossible. There is only room for satire. . . . Art will never be reborn except from amidst a general anarchy--it will be epic no doubt, because affliction will have simplified a great many things. . . . Is it therefore quite useless for you to envy Leonardo or Bach. Greatness in our times must take a different course. Moreover it can only be solitary, obscure, and without an echo . .  . (but without an echo, no art).

--From Gravity and Grace, p 151

To put it another way, the politics of the future must come into being as genuine art does. The poets must become the acknowledged legislators of the world. It must be the product of people who are inspired by the Real. It must be the work of genius in the mode of a poet/prophet like Martin Luther King or Nelson Mandela--people through whom the god or the inspiring muse Justice shines. I say this not because I know that it will happen but because I believe it must happen if there this to be a human future. The machines must otherwise win by default. 

Our current social order is like the dyke in the story of the Dutch boy who plugs a leak in it with his finger. The Dutch boy at this point is the liberal political/media class. Its main function now is to buy time in the hopes that true greatness of spirit, a greatness that Weil describes that "must take another course", might emerge and so come to support the boy, who by himself is incapable of holding back the flood. I believe this other kind of greatness is developing now quietly in the souls of the solitary and obscure where it is struggling to be reborn.

Greatness is not to be mistaken for the grandiose. People long for greatness but are easily seduced by the grandiose. Something is great to the degree that is disclosive of the Deep Real, which has always been mediated to us by the world's true poets and prophets. And when they do, they awaken awareness of it in the rest of us. Such a prospect in a moment like ours seems farfetched, and yet I believe it will happen because unless it or something like it does, the liberal order will break apart and we will all get washed away in the flood. 

Quote of the Day: Richard Rorty

[M]embers of labor unions, and unorganized unskilled workers, will sooner or later realize that their government is not even trying to prevent wages from sinking or to prevent jobs from being exported. Around the same time, they will realize that suburban white-collar workers — themselves desperately afraid of being downsized — are not going to let themselves be taxed to provide social benefits for anyone else.

At that point, something will crack. The nonsuburban electorate will decide that the system has failed and start looking around for a strongman to vote for — someone willing to assure them that, once he is elected, the smug bureaucrats, tricky lawyers, overpaid bond salesmen, and postmodernist professors will no longer be calling the shots. …

One thing that is very likely to happen is that the gains made in the past 40 years by black and brown Americans, and by homosexuals, will be wiped out. Jocular contempt for women will come back into fashion. … All the resentment which badly educated Americans feel about having their manners dictated to them by college graduates will find an outlet.

From a link in "Why They Loved Him" by Farah Stockman

The American "pragmatist" philosopher Richard Rorty, who died in 2007, wrote this in Achieving Our Country, published in 1998. 

If the goal is to help those whose lives have been disrupted by the globalization unleashed by Neoliberals like Bill Clinton, then building a wall on the Mexican border or starting a trade war with China make little practical difference. It's what such actions symbolize that matters. Former blue-collar Democrats see Mexico and China as the places where all the jobs went, and if Trump is the only one who wants to hit back at them--even if only symbolically--they understandably find him very attractive as a champion for their cause.

Joe Biden, weathervane that he is, voted for NAFTA. But it's precisely his essence as a political weathervane that will impel him to turn left on this issue. How far remains to be seen. He will, of course, be cross-pressured by Wall Street and corporate interests. But perhaps because his presidency will be his last act, he will do the right thing this time rather than the politically expedient thing. We'll see. 

On Courage and Prudence

One of Trump’s spokespeople derided the Biden event as “an episode of Mister Rodgers Neighborhood.” (In authentic Trump style, she misspelled the name.) If this was meant to suggest that the evening was all smiles and saccharine—well, it only showed that the spokesperson had never watched the classic children’s program hosted by Fred Rogers.

Rogers well understood the darkness in the world. The maker of a documentary about him explained: “What he’s doing is not just providing joy for children but really trying to allay fear.” But of course, in Trump world, allaying fear is the last thing you want to do. What you want to do in Trump world is incite fear, stoke fear, manipulate fear, and exploit fear. That can apparently work—at least with some people, and at least for a limited time. But only for some people, and only for a limited time.

David Frum

We cannot help what we feel; what matters is how we respond to it. When in the grip of fear, it can be difficult to see and think clearly. Fear makes us stupid, not in the sense of unintelligent, but rather in the sense putting us in a kind of disorienting stupor in which we have lost our capacity to understand and do what the situation calls for.

There's a difference between experiencing a threat that comes out of nowhere and needing to respond immediately--the adrenaline kicks in and with it our instinctual fight or flight response. But it's different when one lives in a situation of chronic fear or anxiety in which one has the time to understand it. When we have the time, we have also the responsibility to get to the bottom of it, to understand the cause and source of the fear so that it can be faced and overcome. The latter was Fred Rogers' approach with kids. 

Prudence, like courage, is a virtue. For a virtue to be a virtue, there has to be something counter instinctual about it. Battle rage, for instance, masquerades as a courage, but it is not the virtue of courage because it's just doing what instinct compels. If the adrenal response is fight or flight, battle rage is the fight response. Courage, on the other hand, requires feeling the fear and wanting to run away, but staying and facing the threat and doing what is called for. The greater the fear, the greater the courage called for.

Pusillanimity, on the other hand, masquerades as prudence. Pusillanimity is the instinct to run away, to procrastinate, to refuse to face the threat. Prudence is a virtue to the degree that it is counter instinctual, to the degree that it finds a way of feeling the fear but searches for a mood of detachment in the face of it. Prudence is the virtue that enables one to see clearly and assess the risks, so that one might develop a strategy to confront the threat that has the best chance of success.  

The Bush Administration's invasion of Iraq in 2003 was an example of gross imprudence fueled by battle rage. It never had a chance of success. 

The Gospel tells us that we must be guileless as doves, but also shrewd as serpents. That's another way to understand the essence of prudence. People ruled by fear, whether in the fight or flight mode, are unbalanced in the serpent direction; people oblivious of the world's dangers and trusting in everyone's innate goodness are unbalanced in the dove direction. Neither are prudent, because prudence requires the counter-instinctual effort to live consciously in the tension between trust and fear.  

So prudence requires the courage to face the world as it is, not as we fear or wish it to be, to assess risk and to develop a practical approach in navigating in it. This is a world where we can be certain about nothing, but where we can also learn to trust that the worst is not the only or even the most likely possibility.

To compare Biden with Fred Rogers, as Frum rightly points out, is a huge compliment, and it might be exactly why Biden, despite my misgivings about his weathervane conventionality as a politician, might be the right person for this moment. He's a mediocre politician, but he's a people person in the best sense. He's something of a tool, and not the sharpest one in the shed to say the least, but he just might have that Mr. Rogers ability to help us face our fears and deal with them prudently. 

Barrett's not the Problem; McConnell Is (Updated)

“If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.” 

A justice must “think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.”

— Amy Coney Barrett in the Texas Law Review.

My problem is not with Amy Coney Barrett as an individual judge. I think there should be conservative judges on the court, even originalists. They should be part of the conversation, but not dominate it. The constitution is just a document born of compromise in an era that could not anticipate how the country would develop, and while the intent of the founders is always an important factor in interpreting the constitution, it should hardly be the only factor.

This is common sense, and from the quotes above, it would appear that Barrett shares in this common sense. I hope so. I believe that Judge Barrett is sincere woman who is motivated to follow the law rather than to implement some ideological agenda. I don't know her, so I could be wrong about that, and time will tell. 

My problem is with the way that Mitch McConnell has politicized the process, which is a reaction to the way that Liberals politicized the process back in the 70s. Two wrongs don't make a right. But at this point I see the only solution as increasing the size of the court and then having a random selection process for empaneling judges on a particular case. This will go a long way to de-politicizing it.

Even though court packing sounds like a radical approach, I think it's the only way to restore a more moderate judiciary. My definition of a moderate is someone who tries to find a balance between the original intent of the founders while at the same time understanding that the founders could not anticipate all the problems future generations would face. I don't want to see court fights go on into the future that are determined by culture warriors on either side. The goal would be to appoint competent, tested judges to an expanded court who represent the broad spectrum of constitutional interpretation that the legal community acknowledges as legitimate.

And I would argue that if among this exanded judiciary, there will be a randomness to who is selected for a particular case, there will be an incentive for presidents and the Senate to appoint and approve judges with moderate approaches in their interpretation of the constitution. The goal here is not for Democrats to get one up on the Republicans, but to de-politicize the appointment process as far as is practicable. The pretense that the court is above politics in this moment is ridiculous. 

Naming a new supreme court justice should be boring and not excite the political passions in the way it has done since Reagan nominated Robert Bork in '87. Bork's nomination was irresponsible and disruptive of norms, as were other Republican nominations since then, perhaps most egregiously Bush's nomination of Harriet Miers. But even if such bad nominees in a future expanded court get through the confirmation process, their negative impact will be blunted.  

Merrick Garland was a moderate. The issue should not have been in his case, or now in the case of Judge Barrett, whether a supreme court justice should be appointed in an election year. It wouldn't matter if the the process was de-politicized and if the nominated judge is a boring, non-ideological moderate. It only matters when the judge is perceived to be an ideologue. The main difference between the nominations of Garland and Barrett is that the first was a perceived to be a moderate and the second clearly is perceived not to be. McConnell's refusal to allow Garland's nomination to go forward was far more ideologically motivated than Obama's nomination. Obama was looking for compromise, while McConnell was only looking to obstruct. 

The problem is not necessarily with the judges as individuals but with the limits and flaws of the constitution, which, for all its brilliance at the time it was written, has become a document ill adapted to the exigencies of the 21st century. "So," the originalist will retort, "amend the constitution!" But when people argue that the constitution should be amended, I have to exert enormous energy to control my eyes from violently rolling up into my brain because it is either so naive or so cynical. Naive or cynical because, especially in this bitterly partisan, gridlocked moment, no such amendments are feasible, and stasis favors the entrenched interests. As Lee discovered at Gettysburg, it's much easier to win when you're dug in defensively than gaining ground on offense. 

There are thoughtful people who are committed Libertarians and Originalists who sincerely believe that their philosophy is objective and rational without at this same time understanding that these ideologies favor existing power and wealth arrangements. They would vehemently protest such an accusation. That doesn't mean they're right. I daresay judges in the court today can say in all sincerity that their judgments are not influenced by concerns about existing power and wealth arrangements. That does't mean that they are not role players in someone else's agenda to defend existing power and wealth arrangements.

These judges would argue that their job is simply to interpret the constitution. The problem lies in that the constitution has always favored the interests of property, and for that reason favors interests of the wealthy over the interests of the rest of us, especially the propertyless. So someone like Mitch McConnell, who only cares about protecting the property interests of the 1%, is naturally drawn to an originalist interpretation of the constitution because protecting property rights is such an important focus of the constitution. And so it's understandable that whether or not the Federalist Society-minted judges he appoints consciously support his agenda on behalf of the 1%, de facto they do support it. And so McConnell's goal is to appoint judges throughout the federal system who, naively or cynically, will use their constitutional hermeneutic to protect those interests. 

And so while Barrett or Gorsuch might be oblivious of how their judicial philosophies enhance McConnell's political agenda, McConnell is not. He is on a mission to pack the court with members of the Federalist society not because he cares about what the founders really thought or whether their constitutional hermeneutics is best approach, but because it helps him to achieve his ideological agenda, which is to protect the interests of the 1%.

That's why McConnell's agenda is simply to defend the status quo by obstruction. If nothing gets done, the interests of the 1% remain protected. I'm sure McConnell couldn't care less about what the founders actually thought. If what they thought supports now the interests of the 1%, he's all for it, but if they have said things that don't support those interests, he'll find a clever rationale to explain why their thinking is no longer relevant. 

For McConnell, originalists from the Federalist Society are simply useful idiots to help him to achieve his long-term, democracy-obstructing goals. And so because the greatest threat to McConnell's agenda is posed by people voting against it, he has two basic strategies to neutralize democratically-empowered people to oppose his agenda. The first is to make it as hard as possible for those who oppose his agenda to elect people who will enact laws to undermine it. The second is a backup strategy to fill the federal courts with unabashed right-wing ideologues or nerdy, useful idiots from the Federalist Society who will strike down these laws if they are passed.

The more sophisticated of these judges will often have arguments for obstructing the will of the people grounded in precedent or in their parsing some of the phrasing in the constitution. But whether sincere or cynical, the effect is to protect the entrenched interests of the 1%, and they provide cover for the ideologues who have no respect whatsoever for the constitution or the rule of law.

This is my problem with appointing someone like Judge Barrett in the current political environment. I don't doubt her sincerity, but I fear her naïveté will lead to decisions like Citizens United or Shelby vs. Holder, which in 2013 gutted the Voting Rights Act. Anybody with a sliver of common sense can see how both these decisions support the McConnell agenda. Whether the judges in those cases saw themselves as supporters of that agenda or not is irrelevant. What matters is that the originalist school supports him in it.

Individual judges may not see themselves as political actors, but that doesn't mean that they are not. it's up to the rest of us to support changes in the system that insure that the power is returned to the legislatures. That's the way a democracy should work, and that's what people like McConnell fear most. 

In a June post I quoted and commented on a quote from Fintan O'Toole in the NYRB:

Trump’s boast that he can do whatever he wants will have to be institutionalized, made fully operational, and imposed by state violence. Or there will be a transformative wave of change. All of this unfinished business has made the United States semidemocratic, a half-and-half world in which ideals of equality, political accountability, and the rule of law exist alongside practices that make a daily mockery of those ideals. This half-life is ending—either the outward show of democracy is finished and authoritarianism triumphs, or the long-denied substance becomes real. The unconsumed past will either be faced and dealt with, or it will consume the American republic.

This is what's at stake--whether we find a way forward as a vibrant democracy or morph into some East-European style autocracy. Business as usual isn't an option, and so the question is whether the constitution can be interpreted in a flexible enough way that it supports the efforts of those who want the "long-denied substance" of the first, or so rigidly that it plays into the hands of those who want the latter. 

MONDAY UPDATE: As if to emphasize my point, this from today's NYT, "Charles Koch's Big Bet on Barret":

Charles Koch has activated his political network to support Judge Amy Coney Barrett’s nomination, and to tip the scales on her nomination battle in the U.S. Senate. While much of the commentary about Judge Barrett’s nomination has focused on the real prospect that Roe v. Wade may be undermined or overturned, Mr. Koch has other concerns. Judge Barrett’s nomination is the latest battleground in his decades-long war to reshape American society in a way that ensures that corporations can operate with untrammeled freedom. It may be a pivotal one.

Read the whole article. People like McConnell are the lapdogs for the the one-percenters like Koch.I'm sure Koch has only a disinterested commitment to make sure that the constitution be interpreted in the way that the founders intended. In the final paragraph the article points out:

History shows that it is just as effective to legislate from the bench by striking down laws as by upholding them. The Lochner era proves that policy negation is just as powerful as creation, and it affects just as many lives. As Charles Koch has written and stated so often in the past five decades, there are many, many laws and programs that he would like to negate. With the nomination of Judge Barrett to the court, he appears to be closer than ever to achieving this goal.

Goes to what I said above about McConnell's backup strategy. Establish a court system that will negate what the democratically elected legislatures enact. 

Biden's Gettysburg Speech

I appreciate what he's trying to do in addressing the toxic divisiveness of our current politics, and I hope that a speech like this does, in fact, appeal to the nation's better angels. But it's unlikely it will have much effect on Republicans in Congress. And if he is as committed to bi-partisanship as he says he is, he will likely get nothing done. The Republicans will then ridicule him for his ineffectiveness, and then convince the country that it's time to put another, even worse, Republican into the White House.

The GOP play since Newt Gingrich is to adamantly obstruct, to prevent the Dems from getting anything done, and then put all the blame on the Dems for playing partisan politics. Obama in his first term was ridiculous in his persistence to reach out to Republicans, but he got only McConnell's commitment to do everything in his power to make sure Obama would not be re-elected. And the media accepts the narrative that neither side can get along. 

Of course, Biden should be open to the possibility that some Republicans, chastened by the insane turn that their party has taken and by, let us hope, the electoral disaster their party will suffer in November, might want to work with him. But until the GOP establishment proves itself repentant and capable of negotiating in good faith, there is no justification to compromise with them if they don't have to, and they won't if they dump the filibuster. 

The GOP has rendered itself into a mob personality cult  that, if we lived in a sane world, should play no significant role in shaping the American future. If times were saner, the only relevant negotiations should be between the right and left wings of the Democratic party, that is the part of the party that represents the top 15% of the country and the part that represents the bottom 85%. The GOP represents only the top1%, but have convinced the gullible in red states that they are on their side regarding cultural issues, which, in fact, they are not except that their faux populist, astro-turf demagoguery requires it.

So if they do, Joe, sure, offer the GOP fanatics an olive branch, make some gestures, but don't allow yourself to be hamstrung by a naive commitment to bi-partisanship. I fear that Biden will waste too much time pleading with Republicans to cooperate. He needs to play hardball or the opportunity to advance will be lost. The Republicans, given a similar opportunity, would not hesitate to be aggressive in exploiting it. 

Quote of the Day: David Brooks

As Hannah Arendt once observed, fanaticism is a response to existential anxiety. When people feel naked and alone, they revert to tribe. Their radius of trust shrinks, and they only trust their own kind. Donald Trump is the great emblem of an age of distrust—a man unable to love, unable to trust. When many Americans see Trump’s distrust, they see a man who looks at the world as they do. By February 2020, America was a land mired in distrust. Then the plague arrived.

David Brooks

Fanaticism is the response of people who refuse to live inside-out and look to the mob to reinforce their shaken sense of self.

Brooks' Essay entitled "America Is Having a Moral Convulsion" is worth reading in its entirety. He's describing a condition I call "ontological dizziness". The existentialists called it "shipwreck"; Christians like me see ontological dizziness as an opportunity like that St. John of the Cross called the Dark Night of the Spirit.

The Dark Night is not a bad thing, but a phase in spiritual development that is necessary for growth in maturity. It happens when the foundations that support identity and one's sense of self dissolve. In the past, this happened mostly to spiritually gifted individuals and they either made it through the darkness, or they didn't. (Nietzsche, imo, was a spiritual prodigy who didn't make it.) But the point is that it's something that'a necessary for spiritual development--the external props have to be taken away so that you can discover that your life is something that must be lived inside out, not outside in. 

The only true cure for ontological dizziness is to realize that the ontological ground on which you can set your feet is not found out there in society or up there in heaven or in some ideology or cult, but in one's own interior depths. Nietzsche said that God was dead, but he was looking in the wrong place. He was right that God was no longer to be found in the cultural forms, but that doesn't mean he died. He just moved underground.

In the past, this Dark Night and its possibilities for discovery were experienced by individuals, but we're experiencing it now as an entire society. Trump represents the worst possible response to this collective crisis/opportunity of the spirit, but it's inevitable that he should be there to present the country with this destructive possibility.

The question I have is whether there are enough people who are responding to this collective spiritual crisis in such a way as to realize its constructive possibilities. In other words, are there sufficient numbers of anonymous people who are now navigating the darkness in a way that will enable them when they get through it to imagine a different kind of a positive human future? I doubt I'll live long enough to get an answer.

For years I've been writing here that I agree with the conservative diagnosis about what ails us as a society, and that a large part of it is that Liberalism and its Enlightenment rationalist assumptions were always inadequate and have finally run their course. But the problem with religious cultural conservatives is that they spend too much time lamenting what was lost rather than looking forward in hope to something new. Conservatives cling to things that have to be let go because they lack the faith and the hope to do it. Their response to the dizziness is to grab whatever is near at hand to stabilize them, and, alas, the mob and its resentments are very seductive in that regard. 

Pack the Court 2

This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach. The latter strategy is what the law professors Joseph Fishkin and David E. Pozen call “asymmetric hardball”—a situation in which one party plays hardball and the other sits on its hands.

That will do little to restore the legitimacy of the Court, and risks falling victim to a kind of magical thinking—belief that legitimacy is achieved by simply pretending it exists rather than building broad public and political trust. As paradoxical as it sounds, a Democratic plan to add seats to the Supreme Court could be just what’s needed. This is what Pozen refers to as “hardball as anti-hardball”: that is, playing constitutional hardball not to win the game, but to get to a place where the cycle of retaliation and politicization can be ended.

Jurecik & Hennessy in The Atlantic

As I argued last week, if McConnell rams through Barrett's confirmation, there is no longer any real legitimacy to the idea that the Court is above politics, so politics is the only antidote. The goal now is to neutralize the court's power to obstruct the legislative process by some theory of interpreting the constitution that locks the country within the mindset of the 18th Century.

Originalism has the patina intellectual sophistication, but it's naively ideological insofar as it validates reactionary interests, as Second Amendment fetishism and Citizens United demonstrates. If people argue that Citizens United and the expansive understanding of citizens to bear arms is constitutionally justified, it only proves that the constitution is ill-adapted to the political realities of the 21st century. 

The best suggestion I've heard is to add several new justices, perhaps even to reach a complement of twenty-one justices, each with a limited term,  and then institute a system of having them draw lots to take on cases to add a degree of ideological randomness into the process. This would not take politics out of it, but it would blunt its effects.  

The bottom line is that the constitution, like any historical document, is vulnerable to a broad range of interpretations. And as with any document, some interpretations are better than others. But if the primary criteria is to stick to what the founders intended rather than to solve real problems, then the original document becomes more of a problem than a solution. 

The constitution is not holy scripture. It's time for both Liberals and Conservatives to stop fetishizing the Constitution each from their different ideological corners. Let the legislatures determine policy, not the courts. That's a conservative idea, or used to be. It's time for Liberals to embrace it. 

 

Quote of the Day: David Frum

It was pandemonium. But it was revealing pandemonium. Who and what Trump is could not have been more vividly displayed in all the psychological reality. Debate one was not Donald Trump versus Joe Biden, or red versus blue. It was zookeepers versus poop-throwing primates.

David Frum in The Atlantic

Pretty much sums it up.

On Chickens Coming Home

Why did the chickens cross the road? Why did Caesar cross the Rubicon? 

First answer: to come home to roost. Second answer: to have his army with him to fight the aforementioned chickens, i.e., those in the Roman Senate who were about to throw the book at him.

Donald Trump is not Julius Caesar, but he finds himself in a similar predicament. Caesar was immune from prosecution so long as he was proconsul in Gaul. Once he was out of office, he was going to get slammed. So it was either prison or start a civil war. It's getting clearer every day that Trump will get slammed once he's out of office, and so it's also clear that he's a desperate man who will do anything to keep those chickens on the other side of the road. The only way to do that is to stay in office, and if he does so, it will trigger civil war. 

His survival requires that he do something desperate. If all his and the Russians' attempts to disrupt the election fail, his Rubicon will be his refusal to leave office. He doesn't have the army on his side, so we can take some comfort in that. But he has a lot of desperate people ready to do some crazy, delusional stuff on his behalf. It won't end well for him and them, but it neither will it end well for the rest of us.

It did not end well for the Romans. Civil Wars ravaged their empire for the next twenty years. But it didn't start when Caesar crossed the Rubicon. The collapse of the Roman Republic was years in the making, and so it has been with us. For us, it traces back to the Vietnam War--to the arrogance, vanity, and delusions of American power that possessed Johnson, Nixon, Kissinger, and later Brzezinski, the Iran-contra conspirators, the neocons in the Bush administrations.

But they are not completely to blame. There was also the toxic political cynicism of Republicans from Gingrich to McConnell, from Limbaugh to Fox News, the venality, hubris, and shortsightedness of our financial elites, the nihilistic materialism of our cultural elites, the ignorance and gullibility of the bread-and-circuses Americans on their couches and in their conspiratorial chat rooms. All delusional in a peculiarly American way. 

Historians will write about the trajectory from Vietnam to Trump as the the arc of American decline. It all could have played out so much differently. But the American character is essentially that of a headstrong adolescent. It leads Americans--from its best and brightest to its cranks in chat rooms--to think they know better when they haven't a clue, and they mistake foolishness for boldness, groupthink for loyalty, credulity for sincerity, wealth for intelligence, fanaticism for faith.

It's fitting that they elected a guy who in the most clownish, exaggerated way mirrors that in them. It sums us up as a nation so well. So it makes sense that he should be the guy who brings brings the post-Vietnam arc of American destruction to its logical end. 

Maybe we survive this, maybe I'm underestimating the capacity of the American character to learn from its mistakes and to grow up. But it seems pretty clear to me that there are too many Americans who are so desperately invested in their delusions that they will not leave the scene quietly but will insist on having it their way or blow things up. 

Pack the Court [Updated]

The trouble for Belkin and other Democrats is ...[in packing the court's] political feasibility—and not just because the party has to win the Senate and the White House first. Joe Biden has shown reluctance to eliminate the filibuster, which Democrats would need to do to pass a court-expansion law, and he is outright opposed to increasing the justices’ numbers, disinclined to take any radical action that would further exacerbate partisan tensions. “We need to de-escalate, not escalate,” he said during a speech in Philadelphia over the weekend. In a local-news interview last summer, he warned that Democrats would “rue” the day they packed the Court because Republicans would simply do the same the next time they were in power.

Elaine Godfrey in The Atlantic

I'm going to argue the opposite of a previous post, "De Moderatione". In that post I argued that moderation is called for in a situation in which things are so fragile and in which we need to restore some stability. Clearly Biden is the man for the job if that is our situation now, and I think it is. But even as I was writing that, the opposing arguments were gathering in the back of my mind. It comes to a head in thinking through where you stand on court packing. After some initial resistance, I am coming around to thinking it's the right thing to do even if clearly it's not the moderate thing to do.

Here's why I think Dems, assuming they win the Senate, need to ditch the filibuster and pack the courts. 

Biden thinks we can get things back to normal. He's selling a feel-good return to they things were before Newt Gingrich and Rush Limbaugh began the destruction of our political norms and institutions during the Clinton years. He thinks the old norms can be restored. He thinks that most people in the Senate are reasonable, decent people. As a political strategy, maybe that's ok, but as a governing strategy it will be a disaster. 

The right-wing fanatics, aka the GOP, are counting on this kind process moderation. They are counting on Democrats being boy scouts who follow the rules because the GOP has become so adept at using the rules to obstruct and to render the Dems powerless. The GOP will use the rules and their propaganda platform on FOX for the next four years to make the Dems seem feckless and impotent and then to ridicule them for their inability to get anything done. And this will pave the way for their return to power when they will resume their naked aggression in destroying the norms and institutions in their long-term project to turn the country into an Eastern European or Latin American-style, right-wing autarchy dominated by the 1%. 

High-minded Democrats will argue that they cannot use extremist methods to restore normalcy. They are right about that, but they are wrong to think that normalcy can be restored. There's no going backwards. A new set of norms based on effectiveness in solving problems must be fought for to establish a future normal. Past normal no longer works. The GOP understand this in a way most Dems don't. The goal is not a return to normalcy but effectiveness in governing. The Democrats will be elected for cycles to come if they actually solve problems. There will be no real stability or normalcy until we have a government that governs in a way that's responsive to the needs of most Americans. 

I think that packing the court won't de-legitimate it so much as neutralize it. It will weaken its authority in shaping policy, which should be the domain of the legislatures, who in turn are accountable to the electorate in ways that courts cannot be. But in order for the legislatures to legislate, they need to remove the obstructions that prevent them from getting anything done.

So if they are to solve problems, it starts with the filibuster and packing the court. Liberal Democrats make an idol of the Supreme Court because of the role it played starting during the Warren years of imposing policies that were unfeasible to legislate. In Roe it went too far, and I'd argue that we would not have half the political strife that we're experiencing now if the courts just left it alone and allowed individual states to make their own laws about abortion.

There are a broad range of culture war issues, but at the very heart of it is abortion. There is something deeply troubling and repugnant about abortion, and this is the Democrats' blind spot. They have come to unthinkingly see it the same way the GOP sees gun rights. It's a shibboleth of team loyalty, a form of group think, and it has, imo, created far greater long-term problems for us as a society than whatever remedies it delivered. It should have been handled in the legislatures, not imposed top-down from the courts.

So I don't think that the biggest danger posed by an ideologically right-wing court is its overturning Roe, but in its continuing to represent the interests of the 1% as it did in Citizens United and in its complicity with the GOP agenda to suppress voting rights. 

So I'm fine with neutralizing the courts. A politically neutralized court won't accomplish anything big, which is how it should be, but more importantly it will be less likely to subvert legislative efforts to make the country more democratic. And it will be less likely to obstruct the good-faith efforts of responsible legislatures to tackle practical problems associated with climate control, voting rights, income inequality, and health care. 

So pack away, Dems. I just hope Uncle Joe doesn't get in the way. 

Friday Update: David Leonhardt in his NYT Friday Morning newsletter reinforces the argument I make above:

It’s not normal anywhere else. In no other democracy do judges serve for as long as they like. In most other democracies, the highest courts are less aggressive about striking down entire laws, as Jamal Greene of Columbia Law School told me. The courts instead tend to direct legislators to fix specific parts of a law.

An all-powerful Supreme Court has also not been constant in American history, largely because the Constitution does not establish it. The balance of power between the judiciary and the other branches of government has oscillated. The past two decades, when the court has intervened to decide an election, legalize same-sex marriage and throw out multiple laws, represent a high point for what scholars call “judicial supremacy.”

All of which suggests that the future of the Supreme Court does not depend only on who the justices are. It also depends on whether future presidents and Congresses choose to accept judicial supremacy. I'm arguing that this is the time to dial back an "all powerful Supreme Court". It's anti-democratic, and Liberals have always been wrong to lean too much on the court to get the policies they want.

 

Has "Trump's America" Jumped the Shark?

When I spoke to former NBC colleagues of Mr. Zucker about his tenure there, the show they brought up most often wasn’t “The Apprentice”; it was “Fear Factor,” in which contestants were tossed in their underwear into a pit full of rats, among other grotesque stunts. USA Today described it as perhaps “the most vile program ever to air on a major network.”

“Fear Factor” didn’t age well. The show lasted six seasons, and a revival was cut short by public backlash to a stunt in which competing sets of identical twins drank donkey semen. The public got tired of it (and that donkey stunt didn’t air).

“After a while it was like, Jesus Christ,” the host, Joe Rogan, recalled in a 2019 interview. “How many times can you throw them off buildings?”

Consuming the news of the last four years has felt at times like watching “Fear Factor” and its cruel and violent strain of reality television. That’s the sensation of doomscrolling on Twitter late at night, the unending outrage cycle that has propelled cable news to its current strong and steady ratings.

...

And the part of the American electorate that was enjoying the show may get tired of this too. If Donald Trump loses in November, that may also mark the end of this era of cable television, which he had fed and fed off, and which has left its audience divided and exhausted.

Ben Smith in the NYT

I don't know about you, but I found myself incapable of watching any of the news this weekend in the wake of RBG's death. I'm just sick of the news, and there's nothing I don't mostly know already I'm going to learn from watching it. It's all about the outrage now, and I'm sick of that, too. it. It's not that the outrage isn't warranted--it's just exhausting and numbing.

 

So after reading this piece this morning it struck me that it's more likely that exhaustion and the sense that the whole Trump schtick is getting old that will be the end of him. And it's for that reason more than any other that a fifth season of "Trump's America", won't be renewed. 

 

But maybe not. "Fear Factor" lasted six seasons, and so maybe will the Trump show even after he loses. The show will be reinvented as the setting shifts from the Oval Office to the court room. We'll be finding out about his traitorous connections to Russia and all the other ways he's used the office corruptly. Will Trump do jail time? Will Jared and Ivanka? It's all part of the show. Again we won't learn anything we don't already know, but what else are they gonna put on to keep up the ratings? Jeff Zucker probably already has it all storyboarded.