After the Future

The Difference between Republicans & Democrats

Today’s Republican Party … is an insurgent outlier. It has become ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence, and science; and dismissive of the legitimacy of its political opposition, all but declaring war on the government. The Democratic Party, while no paragon of civic virtue, is more ideologically centered and diverse, protective of the government’s role as it developed over the course of the last century, open to incremental changes in policy fashioned through bargaining with the Republicans, and less disposed to or adept at take-no-prisoners conflict between the parties. This asymmetry between the parties, which journalists and scholars often brush aside or whitewash in a quest for “balance,” constitutes a huge obstacle to effective governance.

--Thomas Mann and Norm Ornstein

Mann and Ornstein are two scholars of American politics with a decades-long reputation for non-partisan analysis. This excerpt from their 2012 book, It's Even Worse Than It Looks, is quoted in Ezra Klein's Why We're Polarized where he talks about why Republicans seem unified in a way that Dems never seem able to be. Republicans can go deep, while Democrats must go wide. This requires that Democrats be more willing to compromise, which in turn requires that they be less ideological and fanatic. Klein writes--

The percentage of Americans calling themselves conservative has long dwarfed the percentage who identify as liberal. In 1994, conservatives outnumbered liberals 38–17. That gap has closed in recent years, but as of January 2019, conservatives still lead, 35–26. Three-quarters of Republicans identify as conservative, while only half of Democrats call themselves liberals—and for Democrats, that’s a historic high point. Self-identified moderates outnumbered liberals in the Democratic Party until 2008. What that means is Republicans have been able to appeal to their party through ideology. Democrats haven’t. They’ve had to appease a coalition of whites and nonwhites, liberals and moderates, the fixed and the fluid. They’ve done that by promising different policies to different groups—offering a transactionalist, more than ideological, approach to party building.

In their book Asymmetric Politics: Ideological Republicans and Group Interest Democrats, Matt Grossmann and David Hopkins offer the most careful study yet of the differences between the Republican and Democratic coalitions. What they find is that the Democratic Party is a diverse collection of interest groups held together by policy goals, while the Republican Party is built atop a more united base that finds commonality in more abstract, ideological commitments. (Why We're Polarized (2020), pp. 231-32)

So a couple of takeaways here.

First, Democrats are not nearly so ideological as Republicans. They are more practical and willing to compromise. There are ideological factions in the Democratic Party, but they do not dominate the party in the way that ideologues dominate the GOP.

Second, Republicans, notorious for their projecting their own attitudes onto others where they don't exist, see Democrats as they see themselves, as fanatics driven by ideology. They want to believe that the "squad" is calling all the shots. They're not. The Progressives coalition, for instance, lost the internecine Democratic fight about linking the vote for BBB to the Infrastructure bill. Democrats just want to solve problems. Ideologues and fanatics dominate in the GOP in a way that they just don't in the Democratic Party. The argument that both parties are equally driven by their extremists just isn't true. 

Third, Democrats are vulnerable to be identified with the ideolgues in their midst because in their diversity the Dems are a mashup of interests who too easily become identified with the sillier extremist, e.g., those who want to defund the police or who are caught up in some politically correct purity obsession of the moment. People who have these concerns, of course, have a right to fight for them, but the Democratic Party should not be identified with them at a time when democracy depends on the Party broadening its appeal.

Democrats are a mishmash in terms of policy substance, but Republicans perceive them as rabid ideologuues. But because no other identifying vision stands out in this mishmash, there's no robust, sane, positive counterweight to shape public perception. The extremist ideologues stand in the foreground crowding out the more accurate perception that most Democrats are moderate, down-to-earth problem solvers. The solution for this is for the Democrats to find what I've been calling a motivating Progressive vision that unites and inspires their broad representation of the American population--and perhaps might even inspire those independent thinking Republicans who are not ideologues. A vision that is Lincolnesque in its broader outlines to achieve a more perfect union, not so fragmented as to be identified with particular culture-war factions within the coalition. People should feel proud to identify as Democrats. How many do? I know I don't. 

A fourth point is that you can't run a democracy with one party unwilling to compromise, and that's why the future success of the Democratic Party is so important. Mann and Ornstein entitled their their book It's Even Worse Than It Looks because they saw in 2012, even with Romney as the GOP presidential candidate that year, that the party had already been captured by the crackpot ideologues that would inevitably embrace Trump. One of the worst things that MAGA world can say about a Republican today is that he's a Romney Republican. Those relatively sane Republicans have no place in the party anymore. Some have figured that out. Apparently Romney has not. I admire his integrity; I'm dismayed by his obtuseness. 

A fifth point is that the description that Mann and Ornstein give of the GOP above is a description that now fits the Supreme Court majority. 

Reaganism Finds Its Fulfillment in Trumpism

“We have it in our power to begin the world over again.”

--Ronald Reagan quoting Thomas Paine in his speech accepting the GOP nomination in July 1980. 

The increasing divergence—and antagonism—between the red nation and the blue nation is a defining characteristic of 21st-century America. That’s a reversal from the middle decades of the 20th century, when the basic trend was toward greater convergence.

One element of that convergence came through what legal scholars call the “rights revolution.” That was the succession of actions from Congress and the Supreme Court, mostly beginning in the 1960s, that strengthened the floor of nationwide rights and reduced the ability of states to curtail those rights. (Key moments in that revolution included the passage of the Civil Rights and Voting Rights Acts and the Supreme Court decisions striking down state bans on contraception, interracial marriage, abortion, and, much later, prohibitions against same-sex marriage.)

Simultaneously, the regional differences were moderated by waves of national investment, including the New Deal spending on rural electrification, the Tennessee Valley Authority, agricultural price supports, and Social Security during the 1930s, and the Great Society programs that provided federal aid for K–12 schools and higher education, as well as Medicare and Medicaid.

The impact of these investments (as well as massive defense spending across both periods) on states that had historically spent little on public services and economic development helped steadily narrow the gap in per capita income between the states of the old Confederacy and the rest of the country from the 1930s until about 1980. That progress, though, stopped after 1980, and the gap remained roughly unchanged for the next three decades. Since about 2008, Podhorzer calculates, the southern states at the heart of the red nation have again fallen further behind the blue nation in per capita income.

...The gross domestic product per person and the median household income are now both more than 25 percent greater in the blue section than in the red, according to Podhorzer’s calculations. The share of kids in poverty is more than 20 percent lower in the blue section than red, and the share of working households with incomes below the poverty line is nearly 40 percent lower. Health outcomes are diverging too. Gun deaths are almost twice as high per capita in the red places as in the blue, as is the maternal mortality rate. The COVID vaccination rate is about 20 percent higher in the blue section, and the per capita COVID death rate is about 20 percent higher in the red. Life expectancy is nearly three years greater in the blue (80.1 years) than the red (77.4) states. (On most of these measures, the purple states, fittingly, fall somewhere in between.)

Ronald Brownstein, "America Is Growing Apart, Possibly for Good"

Until Reagan, even in the South, we were making real progress toward a more perfect union, and then it all stopped. Why? Because of Reagan's radical program to start the world over again by which he meant to restore America to a time before the New Deal. 

I know it's more complicated, but I trace the acuteness of the current crisis of American democracy back to Reagan. Morning in America was really the beginning of a journey into the heart of darkness, a journey that led us to Trump. With Reagan the sorting and the polarizing and the  tribalizing begins. He opened up the space for the more cretinous, resentment-driven, and hateful characteristics of the American character to emerge and to be legitimated.

At the root of the current crisis is a fundamental inability of great swaths of the American populace to distinguish truth from fantasy. Reagan's was always an American-greatness fantasy that had little to do with the complex realities of living in America. It gave Main Street Americans a meaning story when they intensely felt the need for one, but while it might have seemed benign and Norman Rockwell-y enough at first, Morning in America was the beginning of a longer story that has created in so many Americans a compulsive need for delusion that has made it possible for them to take Donald Trump seriously. as a legitimate political leader. 

Conservatism, traditionally, has never really had a program; it was always primarily about enlisting a natural resistance to change as a way to protect the interests of the the wealthy. The philosophical roots of Conservatism are not Libertarian--quite the contrary--but Libertarianism has a convenient ideology to justify its negative animus toward an intrusive, constraining administrative state. Everyday Americans are duped into thinking that a bootstrapping, rugged individualism constitutes an essential element of the American character. Such an attitude might have promoted one's chances for success during pioneer days, but they make no sense in America after the Industrial Revolution.

More thoughtful Conservatives, guys like Bill Buckley, thought that too-rapid change was destabilizing and driven by naive, do-goody Liberals, who, even with all the best intentions, promoted a project that would destroy the social and cultural infrastructure that makes civilization possible. He was partly right, but it wasn't do-goody Liberals who were to blame but the fundamentally socially disruptive dynamics of laissez-faire capitalism. [See Note 1]

So conservatives don't like the way America changed after WWII, but really since FDR. And they waited a long time for their moment to roll things back. And they got their chance when the Progressive America that Brownstein describes above started to unravel in the late 60s and 70s. This unraveling was not caused by Liberals but by the necessary lancing of a long festering boil on the American soul--segregation in the South combined with outrage at a futile war in SE Asia. All this exploded in unrest in the context of a society whose norms were dissolving in consumer capitalism's torrential acid rain. 

Reagan couldn't bring himself to blame consumer capitalism, so he blamed government: His laugh line--“The nine most terrifying words in the English language are 'I'm from the government and I'm here to help."--became a mantra for Republicans, and Neoliberal Democrats accepted that the era of big government was over. In doing so, they gave in to the idea that big government was the problem. Of course it wasn't. It was never about getting rid of big government but about whose interests it would serve--those of wealthy elites or of everyday Americans.

The enemy for conservatives was always the administrative state, the state that in its New Deal and Great Society programs provided the infrastructure for the progress described in the Brownstein excerpt above. Traditionalist Conservatives blame Liberals for getting in the way of their restoring the America they love and that they believe was taken from them, but it's rather like blaming Liberals for hurricanes and tornadoes--and then doing everything possible to prevent them from taking steps to mitigate their most destructive effects.

***

I'm not against capitalism; I'm against unfettered capitalism. I'm not against change; I'm against change that is dehumanizing. In order to direct change in such a way that it promotes human flourishing, you  have to have a model of history--a compelling meaning story--that has some working relationship with the dynamic forces that are shaping history. In other words, you need a philosophy or a theology of history to make sense of it. It has to be plausible and intellectually honest, and that requires that it never present itself as the absolute truth, but rather as a working model to help us navigate history in the most humanly productive way. But it needs to be inspiring. 

Americans have no such public philosophy of human flourishing except one shaped by a crude, it's-the-economy-stupid materialism. Our public religion by default is the cult of the Invisible Hand, the market deity that makes everything turn out right if we just let it do its thing. The Invisible Hand doesn't care about traditional values. It's a rapacious deity that is fed only by human greed and a compulsive need for growth. And it is greed and growth that have destroyed what Red America feels so deeply the loss of. They blame Liberals, but they should blame the Invisible Hand. And if they're honest, they will recognize that they, too, are worshippers in its cult.

Directing change that promotes broad human flourishing is almost impossible to do when there is no consensus about what constitutes human flourishing. in a Libertarian ethos, we are constrained from making judgments about the choices people make. Who are we to judge? So this in turn leads us to a least-common-denominator imagination of human possibility, for instance human possibility as Judd Apatow or Mark Zuckerberg might imagine it. Apatow's vulgarity and Zuckerberg's callowness are wildly successful as measured by the marketplace, and their success therefore makes them saints in the Invisible Hand's cult.

But most spirited Americans want to think better of themselves than that, and so they are likely to grab onto anyone or anything that tells them they can do better. Some join the military. Others Doctors without Borders or the Peace Corp. Fundamentalist religion offers another possibility, and often that is combined with the 19th-century American mythos to which Reagan gave new life--a mythos of rugged individualism, never-stand-down toughness, and loyalty to god and country. 

But what do Liberals have to offer traditionalist Americans that's better--career advancement in a meritocratic technocracy? Jobs in a cubby in some soulless high rise in Oklahoma City? For many of the people whose customary culture has been destroyed in the decades since WWII, to pursue such a life feels to them like surrender to the enemy that has taken everything from them that they and their ancestors held sacred. They'd rather blow it up. 

But Democrats and Liberals in general seem incapable of understanding this simple idea: It's the meaning, stupid. They keep thinking that the solutions to the crisis are primarily economic, and of course there must be an economic dimension to any solution that might work. But such a solution can only be advanced within a larger, animating meaning story, a story that Liberals haven't the resources to tell. Red America does have an animating meaning story; it's divorced from reality, but it inspires action and commitment in a way that Liberals don't understand. Because the solution for finding a progressive animating story is a religious one, and Progressives don't trust religion. 

Liberals, at best, see religion as a consumer choice, and most don't feel a need for it. Their lives feel meaningful enough without it. They are mostly educated and prosperous, and so have the financial and cultural resources to live decent, interesting lives. But they see themselves as magnanimous and openminded about religion. "If you want to be religious," they'll say, "good for you."  But this is so patronizing, and really they are thinking, "Why can't you just be like us? Isn't your religion just you're clutching a teddy bear to get you through the night? Do you really need it? Grow up."

Blue America can't understand why it is hated so much by Red America  or why Red America won't become more like Blue America. And because it won't, Blue America justifies its contempt for Red Americans as a failure to adapt. It's rather like the way white settlers came to see Native Americans as sullen, drunken layabouts for their unwillingness to assimilate. Of course, it never occurred to the white folks that their having destroyed their thousands-year old culture might be a soul-crushing loss and cause for disgruntlement. You lost. Get over it. Move on. Is Rust-Belt and rural resentment toward educated elites essentially different? Aren't their resentments cognate with the resentments of Native Americans toward the whites who held them in contempt for similar reasons? I'm not saying the situations of the two groups is equivalent, but analogous. [See Note 2]

***

Now I say I blame Reagan, but you might retort that if it wasn't Reagan it would have been someone else. Maybe. But what if the someone else that had been elected in 1980 had the stature and charism of Lincoln or FDR? What if it were someone who could have faced down the dark side of the American character and led the nation out of the confusion of the 60s and 70s toward a more perfect union. Is that so hard to imagine? Isn't that in our American DNA as much as the delusions of grandeur that Reagan represented? ...

Carter, as admirable as he was in so many ways, was just not the man for the moment.  He was a morally serious guy who wanted us to eat our spinach, but people won't eat it if there's someone offering them ice cream instead. And that's what Reagan's Morning in America was--junk food. What Americans needed in 1980 was someone to inspire them in a way Carter was incapable of, and so his failure cleared the way for Reagan who was indeed inspiring, but he was selling the sugar high, and it made the country sick. 

As Jackson's defeat of Adams was a fork in the road in 1828, so was Reagan's defeat of Carter in 1980. Both roads led to disaster. Both Jackson and Reagan were popular, larger-than-life characters, and both left toxic legacies. After Reagan in the 80s, morally deformed figures like Limbaugh, Gingrich, and Ailes were given the space to emerge into the mainstream to do their destructively polarizing thing in the 90s. I'd argue there are similar paths taken from Jackson to Jefferson Davis as from Reagan to Donald Trump.

So yes, I blame Reagan. I don't think America had to go the way he diverted it, but arguing counterfactuals isn't useful unless it can help our understanding the problem we're trying to solve. If 1980 was a fork in the road in American history that led us to this moment, what would the road untaken look like, and is that a route that is open to us now?

***

I've been arguing here over the years that fundamental to the crisis in our political order is a deeper crisis of meaning in our cultural order. This dimension of the crisis is something most Liberals in Blue America don't feel acutely for reasons alluded to above. And so their ideas since WWII about progress have always been shaped by a utilitarian calculus about material progress. And so their program has been mostly limited to economic policies designed to mitigate the destructive effects of capitalism on those most vulnerable to be hurt by them. This kind of materialistic utilitarianism lacks the fervor and animating vision of the early Progressive movement in the late 19th and early 20th centuries. Liberals don't understand that It's the meaning, not the economy, stupid.

The Progressivism that gave us all the progress that Brownstein describes above was incapable of dealing effectively with the crisis of meaning that Main Street Americans experienced in the wake of the disruptions of the 60s and 70s. All Democrats had to offer were programs that never addressed the underlying causes of the crisis, which was Traditional America's losing its meaning story as it was embedded in its customary culture. The loss was accelerated by Reagan's program to dismantle the New Deal and unfetter the nihilistic forces of corporate capitalism. [See Note 3]

So I would argue that most Liberals don't understand that there's double whammy here for Red America in its feeling that Liberals are the cause of their having become both culturally and economically marginalized. While cripple-the-government Republicans are more to blame for their economic losses, Red America blames Democrats for both because they've come to think that Republican pols care about them when they show up wearing their red jerseys and then feed their resentments regarding their cultural losses. These pols and their media propagandists tell Red America that the Liberals want to take away their religion, their guns, and their whiteness, but guns, religion, whiteness are just MacGuffins in the meaning story plot. Give Red America a better meaning story, and they lose their importance. But until that story changes, they play a central role in supporting the cult. The challenge is not to persuade Red America that their ideas are wrong, but to inspire them with a better story. 

Red America's losses are not the fault of Liberals, but Liberals are at fault for not understanding why they are being blamed by Red America, and their Blue cluelessness leads them to endorse attitudes and policies that make things worse. It's astonishing to me to think that Democrats could ever think that nominating Hillary Clinton was good idea. It only makes sense from within a particular kind of blinkered technocratic/meritocratic version of feminism that has no sense of the causes that have led the broader society into this crisis.

But as bad as the Clintons were, they were simply adapting to the world that Reagan created. His Morning in America was a celebration of both unfettered, deregulated capitalism and traditional American values. And so follows the irony that in the name of traditional American values he unleashed the forces that in subsequent decades destroyed the social infrastructure that supported them. In doing so, Reagan began the process of creating a deracinated, anomic mass that was ripe for exploitation by the first demagogue to come along, which turned out to be Donald Trump.

That such an absurdly ridiculous figure should be so successful in not a testament to his talent, so much as it is a testament to the social psychological damage done to the country by Reaganism. His unfettering of the nihilistic forces of capitalism, dressed up in a 19th-century, rugged individualist fantasy, thrust Red America into a ferocious ontological vertigo, a vertigo that they could remedy in this crusade to take their country back from the Libs who are absolutely convinced stole it from them. Trump's claims of a stolen election are so persuasive because it fits the story that that's what Libs do, steal and cheat. They did it to them, and so, of course, they did it to Trump. That's what explains MAGA and J6. Reagan and the right wing demagogues who emerged after him told them to blame big-government Liberals, and Trump has just taken it all to its logical conclusion.

So since Reagan and the GOP, with the acquiescence of Neoliberal New Democrats, have not only impeded the country's social and material progress, but have led us to a condition where it's not enough for the worst tendencies in American society to be tolerated, but rather for those worst tendencies to become the norm. The Reagan-promoted fantasy of America created the space for the most regressive and shameful elements in the American psyche to emerge. It shouldn't be that difficult to understand how it created the shame-denying, resentment-driven, reality-averse habits of mind that inevitably led so many conservatives to embrace Trump.

So rather than admit that they were wrong, MAGA conservatives and their fellow travelers must do whatever is necessary to shut out the truth and the shame of their having enabled such madman. And in their doing so they have played a critical supporting role in his project to smash basic norms and impediments without which a healthy democracy cannot survive. Their repressed shame requires that they double down in their hatred of the morally smug Libs who they can never acknowledge were right. So they must do whatever it takes, whether legal or illegal, to shut Blue America out of power because that's the only way to shut them up. This was the psychology of the slaveholders in the 1850s, and it's true now of any conservative who is not a Never-Trumper. Brownstein reinforces the point:

The core question that Podhorzer’s analysis raises is how the United States will function with two sections that are moving so far apart. History, in my view, offers two models.

During the seven decades of legal Jim Crow segregation from the 1890s through the 1960s, the principal goal of the southern states at the core of red America was defensive: They worked tirelessly to prevent federal interference with state-sponsored segregation but did not seek to impose it on states outside the region.

By contrast, in the last years before the Civil War, the South’s political orientation was offensive: Through the courts (the 1857 Dred Scott decision) and in Congress (the Kansas-Nebraska Act in 1854), its principal aim was to authorize the expansion of slavery into more territories and states. Rather than just protecting slavery within their borders, the Southern states sought to control federal policy to impose their vision across more of the nation, including, potentially, to the point of overriding the prohibitions against slavery in the free states.

It seems unlikely that the Trump-era Republicans installing the policy priorities of their preponderantly white and Christian coalition across the red states will be satisfied just setting the rules in the places now under their control. Podhorzer, like Mason and Grumbach, believes that the MAGA movement’s long-term goal is to tilt the electoral rules in enough states to make winning Congress or the White House almost impossible for Democrats. Then, with support from the GOP-appointed majority on the Supreme Court, Republicans could impose red-state values and programs nationwide, even if most Americans oppose them. The “MAGA movement is not stopping at the borders of the states it already controls,” Podhorzer writes. “It seeks to conquer as much territory as possible by any means possible.”

The Trump model, in other words, is more the South in 1850 than the South in 1950, more John Calhoun than Richard Russell. (Some red-state Republicans are even distantly echoing Calhoun in promising to nullify—that is, defy—federal laws with which they disagree.) That doesn’t mean that Americans are condemned to fight one another again as they did after the 1850s. But it does mean that the 2020s may bring the greatest threats to the country’s basic stability since those dark and tumultuous years.

And as in the 1850s, the forces of resentment and reaction are aggressively overreaching today. Conservatives are justifying their support for Trump because he gave them the court that overturned Roe, but more consequential is that he gave them the court that is bent on its project to dismantle the administrative state--to return us to the 1880s if they can. Or something even worse. We could be headed toward the fulfillment of Bannon's "Leninist" dark fantasies to destroy the administrative state, and to replace it with what? Some Putinesque, synarchist-theocratic nightmare?

Will such a project or something like it succeed? There's a good chance of it. Reactionary Red America has short-term structural advantages--the Supreme Court, the electoral college, the Senate, a majority of state legislatures, the obliviousness of a center-right-leaning electorate. But Progressive Blue America has the greater numbers, and the cultural, economic, and intellectual energies that Red America simply can't constrain indefinitely.

It's possible we'll have a decade like Cromwell's parliamentary dictatorship in the 1650s, but that will prove so unattractive that it cannot last. Maybe we will need Red America to do its worst before a backlash will develop that will empower a broad consensus to push back against it. Perhaps that's the only thing that can galvanize the political will to push for a Progressive Restoration that picks up where it left off in 1980. Perhaps only then can we get the constitutional changes that will free the country from the 18th/19th century thinking and institutions that prevent it from dealing with 21st century challenges. That's as much optimism as I can muster at the moment. 

++++++++++

Note 1: Buckley is a fascinating character, and I have more to say about him in a post entitled "Bill Buckley: Romantic Reactionary". But his Catholicism and his embrace of capitalism never really made much intellectual sense. Capitalism has always been more of a Calvinist thing. But he came from oil wealth, and so for all his purported Catholic fervor, that side of him never really got into a very deep conversation with the capitalist side of him. His Catholicism and therefore his conservatism always struck me as having more in common with that of Latin American oligarchs--i.e., more about protecting their privileged place in the social order than about the spirit of the gospels. His theology was deeply correlated with his sense of social privilege in an older oligarchic sense. 

Nevertheless, there's a partial truth buried in Buckley's critique of the naïveté at the heart of the Liberal project, but the deeper reality is that Liberals simply adapted to the dynamically changing world that post-WWII consumer capitalism created. Capitalism's consumer-driven-choice-and-self-indulgence ethos was the acid that slowly dissolved whatever feeling Americans had for the public interest that formed during the depression and WWII. 

Note 2: That's why Liberals are so obsessed with education. Education is always the solution for Liberals because it was the key to their own success. But getting educated has come to mean for Red America its becoming brainwashed in institutions dominated by the ideology of its enemy, the enemy that destroyed everything they and their ancestors held sacred. The brouhaha about CRT has nothing to do with CRT; it's all about the fear that traditionalist Red Americans have about losing their kids to the enemy and its ideology. Conservatives see themselves as the earthy, valiant, freedom-fighting Celts in Braveheart, and Liberals as the ever-expanding machine, that is, the hated, snotty, slick English that would as soon squash them all as if they were only bugs. Liberals aren't that, of course, but they are more comfortable in the machine than conservatives are, and so are guilty by association. 

Note 3: I'm surprised this theme doesn't get more attention. Reagan's program was abetted and advanced by Neoliberal Democrats in the 90s. The Washington consensus for deregulation and free trade endorsed by both Republicans and Neoliberal Democrats insisted that lower prices were good for everyone, and if in order to get them some people needed to lose their jobs, well that's unfortunate, but they can be retrained to do something else. Was it ever a consideration how such policies atomize American society and have destructive effects on families and the communities that support them? Conservatives are right that government programs are no substitute for healthy families and communities, but conservatives--thick, dull guys like Romney and Paul Ryan--never understood how market capitalism worked so mercilessly to destroy them.

Oren Cass is an interesting conservative exception who understands that public-private partnerships are essential to promote healthy local communities and the families that are their life. This should define the common ground between Democrats and Republicans, but the Republican Party policy wing is dominated by Libertarians who don't want the government involved in solving problems. They are worshippers in the cult of the Invisible Hand. Just lower taxes and let the markets do their thing, and all shall be well. There are a lot more Democrats in today's congress who would be open to Cass's ideas than Republicans. 

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See also "How Liberalism Got Its Bad Name", a reflection Rick Perlstein's Nixonland shortly after it came out.

Also "Growth Idolatry" about the tradeoffs between fairer wealth redistribution and rates of economic growth.

 

Barrett = ACA's Demise?

I doubt it--if the Dems take the Senate.

I've been arguing here since the Barrett nomination that if the Dems win the Senate, they should expand the court. If Barrett and the other conservative ideologues vote to destroy the ACA, it will all but insure that the court will be expanded as the first order of business in January. So it won't. The Republican court majority realizes that if it blows up the ACA, it will be so outrageous to a Senate Democratic majority that those senators sitting on the fence will be given the political cover they need to support expanding the court.

Roberts doesn't want that because it would be suicidal to the conservative majority he now enjoys. He won't risk giving up something so important to him for something so trivial. He'll lean on Kavanaugh or Barrett (or have them all draw lots?) to vote with him and the three liberals to uphold the ACA.

So a part of me thinks it wouldn't be such a bad thing if the court nullifies the ACA precisely because it will almost certainly insure expanding the court. Losing the ACA will be disruptive and a hardship for many in the short run. But a Dem House and Senate will be able relatively quickly (absent the filibuster) to come up with something to fix the health care problem--maybe even something superior like Medicare for All. And so there's an argument to be made that the cost in the short run of losing the ACA might justify in the long run the benefit of politically neutralizing the court and getting a better, simpler, more effective health care plan, the one we should have got in 2009 instead of this Rube Goldberg monstrosity.

Iif the GOP holds on to the Senate, I'm less certain. But it's still unlikely the court will nullify the ACA:

From everything I've read, the merits of Texas v. The United States are ridiculously weak and would have got nowhere if it weren't for Republican hacks on a Texas district court and on the southern federal 5th District court of appeals. The supreme court has its Republican hacks, but they are not all so stupid as to be so disruptive to tear down the whole ACA on such a flimsy pretext. If they do anything, it will be more surgical to deal with ambiguities that still linger concerning individual mandate, and nobody cares about the individual mandate anymore.

I think that the bigger threat that Barrett's further unbalancing the court poses is on voting rights and election law. God help us if the presidential is so close as to require the court to step in as it did in 2000. 

Adam Serwer on Robert's Civil Rights Jurisprudence

Roberts’s decision in Shelby County surprised few legal observers. As a judge, he has frequently ruled that state measures addressing racism are worse than racism. This is a deeply held philosophical perspective, one he has advanced since he was a young attorney in the Reagan Justice Department. In that role, he argued against adding a “disparate impact” provision to the Voting Rights Act. He was unsuccessful, but the provision would have barred voting restrictions that have discriminatory effects, whether intended or not. Such a standard, Roberts argued, would “provide a basis for the most intrusive interference imaginable.” The intrusive interference he feared was not with the ability of Americans to cast a ballot, but with the ability of states to prevent Americans from casting ballots.

That southern states employed facially race-neutral methods to disenfranchise their Black populations for the express purpose of evading the Constitution didn’t matter to Roberts then, and it doesn’t matter to him now. From the perspective of the Court’s conservative wing, the avalanche of voting restrictions Republicans have adopted since Shelby County  are no crisis; the real concern is the incivility of liberals pointing out when these restrictions are discriminatory.

Under the logic of Roberts Court jurisprudence, not only would most Jim Crow voting restrictions pass constitutional muster, but even Vardaman’s boasting would be meaningless. As Roberts wrote in his opinion upholding the Trump administration’s travel ban targeting Muslim countries, Trump’s explicit declarations of discriminatory intent did not matter, because the lawyers who wrote the order didn’t mention religion. “The text says nothing about religion,” Roberts insisted, echoing McKenna’s assertion that the voting restrictions in Mississippi’s constitution were not “limited by their language or effects to one race. (Source)

And he's the "reasonable" conservative on the Supreme Court.

I object to Serwer's describing of Robert's views as philosophical; they are ideological. Philosophical means that you are willing to examine your own presuppositions; ideological means that you are captured by them. 

Being 'an ideologue does not mean that you are evil or insincere; it just means that you are more often than not naively captured by a worldview or interpretive frame that just happens to support existing power arrangements. There are plenty of people, especially kings, who sincerely believed in the divine right of kings. There are many people, especially men with an  identity stake in patriarchy, who  sincerely believe in a fundamentalistic interpretation of the bible. There are plenty of people, especially members of the Federalist Society, who sincerely believe in original intent and strict textual interpretation of the constitution.

These are people who, no matter how cleverly they bend reality to fit into their interpretive frame, are incapable of dealing sanely and maturely with complexity. Ideologues are fearful people. And there is no "reasoning" with them so long as those underlying fears require that their ideology give their lives meaning and purpose.

At the end of the day, this these forms of ideological thinking are naive, reductive nonsense, and no intellectually honest person can take them seriously. 

Pack the court. It's the only way to vitiate the influence of these Federalist Society ideologues.

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. 

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. 

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. 

 

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.

 

Thoughts on the Kavanagh Affair

When he was first nominated, I saw Kavanagh much as I saw Gorsuch: an establishment figure who leans conservative, and thought that's what you're going to get because clueless establishment Democrats allowed Donald Trump to win the election. But better someone like him than someone like Harriet Myers or Clarence Thomas, or someone else who's crazy or ignorant, in other words more like Trump. I was disturbed later to hear of his role in the Starr investigations, and of his role as a Republican operative in the early part of his career. He's different from Gorsuch in that respect. But it seemed kind of stupid for Democrats, except for the political optics, to fight his nomination. He appeared until recently to be as good as we were going to get. 

When the Blasey Ford accusation first came to light, my first reaction, as I'm sure was the reaction of many if not most Americans was--"Really, we're going back to high school now to find ways to stop these nominations?"  I realize that politics is blood sport, and that the Dems are really angry at Mitch McConnell and the way he treated Merritt Garland, but this and the timing and all the things that Republicans complained about  seemed pretty pretty low. Nevertheless, it became clear fairly quickly that the accusation was very likely true and was supported by other circumstantial facts. And let's not kid ourselves--every Republican who supports Brett Kavanagh knows that he's lying and that Blasey Ford is telling the truth. 

I don't believe for a minute that Kavanagh didn't do the things that he's accused of doing, but there's a reasonable case to be made that stuff that happened in high school and college should not be determinative of the possibilities for people thirty years later, especially if their lives and careers have been exemplary since then. But very quickly it became clear that it wasn't about what happened, but about Kavanagh's fundamental truthfulness and ability to own up and move past stupid, drunken stuff he did as a kid.

And that's where in my view he failed completely. He unequivocally denied what every honest person sees plainly is the truth, and this alone is disqualifying. Yesterday's statement before the Senate Judiciary Committee further aggravated his credibility and questions about his fitness. At this moment it remains to be seen whether there are two or three swing votes among the Republicans that will block his nomination.

For the rest of the Republicans the issue is not what's true or not, but whether they can get away with ramming his nomination through. The Republicans see this as a purely tactical problem--regular order, norms, etc. be damned.  The Dems have played their best cards and now it's up to them to do the same. Their strategy is to complain about the politics of personal destruction, and that has some traction. I can see how making public at the last minute a woman's accusation about events that happened over thirty years ago seems unfair. But politics is blood sport, and it came out, and then the question becomes how does Kavanagh and his supporters deal with it. And from my pov it's hard to imagine how they could have handled it worse. 

I think that any reasonable person would have preferred that Blasey Ford's accusations to have been taken care of behind closed doors so that Kavanagh could have made a considered decision about whether he wanted to put his family through the ugliness that was sure to follow should he choose to fight. I can understand why they suspect Feinstein of gamesmanship on this. So what? The Republicans are finally on the receiving end of tactics that they would have used themselves if the positions were reversed. But once the accusations were public, he reacted in the worst possible way by denying what would become clear to everyone is undeniable, and so this compounded his problems and boxed him into a corner. Now, not only does his behavior as a teenager and young adult raise questions about his fitness, but so does his fundamental honesty and capacity to own up to what he did. It's a pretty ugly picture. 

Kavanagh, after having been confronted with Blasey Ford's accusations, should have withdrawn or if he chose to fight it, should have fought through it with a different strategy. He should have admitted the stupidity and awfulness of his behavior as a non-adult, showed contrition for whatever harm he caused, and then focused on his productivity and accomplishments as a adult and public figure since then. He would then argue it's on that basis, not the basis of what he did as a seventeen-year-old or college kid that should determine whether he's fit to serve on the supreme court. This may or may not have worked, but at least it would have been an attempt to be honest, and it would have told us something positive about his character, his humanity, his ability to be honest with himself and the public, that whatever he did as a kid is not who he is now. And at the very least would have provided a much easier path for the Republicans and even some Democrats to vote for him. 

But that's not what he did. Instead, he presented himself in court yesterday in such a way that it's easier for me to believe that the nasty, belligerent drunk he has been portrayed as is still there lurking under the surface and will come out if provoked. He presented himself as a right-wing tribalist following Trump's dictum to deny, deny, deny. It should be clear to everyone that while clearly he's more sophisticated, as a matter of fundamental character, he is no better or more fit for office than the man who nominated him.

Egypt and the Problem of Democratic Legitimacy

According to the civics text books, a democracy is a government in which the people are sovereign. In its republican forms it elects people who represent them in legislatures, and they work to create the laws that the sovereign people are obligated to obey, whether they like them or not because they were enacted by the representatives that popular majorities elected. If they don't like it, then they have to work to get the laws changed through the same process. That works fine, so long as the game isn't rigged, and the public interest has a chance to be realized.

And so unless you insist on some Rousseauan idea of the 'general will' and how the people are always by definition right, it's been demonstrated time and time again that majorities often get it wrong. Sometimes because they are in a paroxysm of fear or in a patriotic frenzy; sometimes because they have been manipulated by demagogues, the saner, more mature minority does not prevail. The ancient Greeks thought democracy was a form of government that inevitably devolved into tyranny precisely because of its vulnerability for majorities to be manipulated by demagogues who used popular support to obtain power, and then used that power to establish an autocracy. Think Germany or Louisiana in the '30s. 

And so it should be obvious that because a government was democratically elected, it does not mean that it has legitimacy.The ballot box confers what I would describe as a provisional legitimacy; it's not absolute. Ultimately legitimacy is conferred in the streets. When elections or the basic elements in the system are rigged, there might be legality, but not real legitimacy, not a legitimacy that means something. I'd argue that George Bush's taking office in 2001 was technically legal, but not legitimate; legitimacy was conferred in the streets when no one took to them. 

Egypt is at the mercy of the military, and everything depends on whether it is dominated by actors possessed by the will to power or the public interest. There's good reason to hope for the latter, because they are responsive to the verdict of illegitimacy conferred on the Morsi government by citizens in the streets. There isn't something sacred about democratic elections. If 50% + 1 of your electorate is insane, ignorant, and easily manipulable, you probably shouldn't have them. The Jim Crow south was legal but illegitimate. Democratic elections, I'd argue, have legitimacy only in societies with majorities that possess a basic level of decency, maturity, and civic mindedness, and the jury is out on whether the US has that anymore and whether its government has real legitimacy. Legality does not equal legitimacy. 

I'd say a solid 40% of Americans don't have the requisite sanity and decency to endorse a legitimate government, but 40% do, and if at some point the latter don't take to the streets to call out the the way their government is trending toward illegitimacy, they will show themselves to be less mature and civically responsible than Egyptians, Turks, and Brazilians. And as with the Bush election, they are otherwise legitimating the illegitimate by their passivity. 

SCOTUS Rulings Lost in the News

From today's NYT piece on the Robert's court 'steady move to the right':

In lower-profile cases, the court’s rulings continued to be good for business interests and bad for the Obama administration.

“We shouldn’t lose sight of the court cementing its legacy as the most pro-business court in the modern era,” said Lee Epstein, who teaches law and political science at the University of Southern California and helped write a recent study of the Roberts court’s business rulings.

The U. S. Chamber of Commerce had another successful year. The court cut back on class actions, favored arbitration and made it harder to sue the makers of dangerous drugs and employers accused of workplace discrimination.

“Anyone doubting that the most important story of the Roberts court is its business rulings has not been paying enough attention,” said Doug Kendall, president of the Constitutional Accountability Center, a liberal group. “This term’s 5-4 rulings, all favoring the chamber, move the law sharply to the right and to the great detriment of consumers, employees, and other Americans trying to get their day in court.”

As American liberals rejoice about inevitable gains in the cultural sphere, they shrug about continuous losses in the economic sphere. I am amazed at how little attention Americans pay to the way power works in this country. 

John Oliver on The Daily Show in reference to the Snowden leaks remarked last week that Snowden did not reveal any illegality or wrongdoing, and that was the most disturbing part--that it's all legal now. [But is it?] In the next ten years we will be finding that all kinds of injustices are perfectly legal, and that there is no recourse. 

***

Another word about Brazil. Also in today's NYT is an article about the amazing corruption among Brazil's politicians: about a third of the Brazilian congress is currently under indictment, but even when legislators are convicted, they only very rarely go to jail:

Almost 200 legislators, or a third of Brazil’s Congress, are facing charges in trials overseen by the Supreme Federal Tribunal, according to documents compiled by Congresso em Foco, a prominent watchdog group. The charges range from siphoning off public funds to far more serious claims of employing slave labor on a cattle estate or ordering the kidnapping of three Roman Catholic priests as part of a land dispute in the Amazon.

Scholars of Brazil’s judicial system say legislators in corruption scandals often avoid jail, in part because of the special judicial standing enjoyed by about 700 senior political figures in the country, including all 594 members of Congress and senior cabinet members.

The standing allows these people to be tried only in the Supreme Federal Tribunal, producing years of delays in an institution bogged down by many other pressing matters in Brazilian society. Until 2001, politicians could not even be tried without the authorization of Congress, a function of the deference traditionally paid to elected officials in the legal system.

But here's what the recent protests have wrought:

Just as surprising to many Brazilians, Congress is now scrambling to cobble together a response. This week, legislators approved a bill to use oil royalties for education and health care. The Senate, the upper house of Congress, gave its nod to stiffer penalties for corruption, and the lower house, the Chamber of Deputies, shot down an attempt to rein in corruption investigators. Senators are elected for eight-year terms, while members of the Chamber of Deputies serve four-year terms.

Also, a powerful congressional committee approved a measure to lift the veil of secrecy when lawmakers vote on whether to strip fellow members of Congress of their seats.

On Wednesday, the Supreme Federal Tribunal ordered the immediate arrest of Natan Donadon, a congressman found guilty in 2010 of embezzlement — a rare attempt to try to imprison a sitting congressman. The last time the high court made a similar move was during the military dictatorship in 1974, when justices ordered a legislator arrested for opposing a visit by the Chilean dictator Augusto Pinochet.

Still, the fury builds in one protest after another.

“These wolves, that trash over there, they rob the people, they feast on the meat of the people by stealing public money destined to do things for us,” said Caio Fabio de Oliveira, 45, a civil servant in the Health Ministry, who was among the demonstrators against Congress this week in the capital, Brasília. “It is shameful for the Brazilian people; I work for the government, and I’m ashamed every day.”

Only sustained public outrage gets anything done in the public interest. It's no different in the US than in Brazil. For Americans to become outraged, maybe the corruption and blatant injustice has to become as outrageous in the US as it is now in Brazil. If current trends hold, it will be there sooner than we think. The US government is already an publich embarrassment, just not yet an outrageous one.