Three quick thoughts on Thursday’s hearing by the Jan. 6 commission.
• I know a lot of people on my side of the ideological divide who give Mike Pence little credit for his actions during the attempted violent coup. I disagree. Look, he’s a religious-right Republican who was attached to Donald Trump at the hip from the moment Trump picked him as his running mate. But when everything was on the line, Pence didn’t hesitate to act with courage and integrity. He deserves our gratitude.
• Like everyone, I laughed at the video of Josh Hawley hightailing it away from the insurrectionist mob. But my reaction to the slo-mo replay was one of awed appreciation. It struck me as Liz Cheney’s handiwork — a giant “screw you” to a highly deserving target. She learned at the feet of the master. She can’t waterboard Hawley, although she’d probably like to. But she can humiliate him. Well done.
• I am weirdly fascinated by former White House counsel Pat Cipollone, who is either the best of the bad guys or the worst of the good guys. He’s certainly no hero. Yes, he may have been among the last people in Trump’s inner circle who was giving him rational, reality-based advice, but so what? And he’s still protecting Trump, refusing to answer questions about what Trump told him under the guise of attorney-client privilege.
Update:CNN fact-checker Daniel Dale reports that faculty and students would not be required to answer the survey, although colleges and universities will be required to administer it.
There isn’t a high-ranking elected official in the country today who embraces repression more than Gov. Ron DeSantis of Florida.
DeSantis, a Republican who’s positioning himself to run for president in 2024 if Donald Trump doesn’t — or maybe even if he does — has a particular fixation on education, pushing through the state’s notorious “don’t say gay” law (which prohibits classroom instruction about sexual orientation and gender identity) and, through his allies, banning three professors at the University of Florida from serving as expert witnesses in a lawsuit against the state involving its restrictive voting-rights law (he backed down).
The latest outrage is a bill DeSantis signed into law this week that requires public universities to conduct a survey in which faculty members and students would be required asked to reveal their political beliefs. As Ana Ceballos reports in the Tampa Bay Times, the measure is part of DeSantis’ ongoing war against leftist beliefs on campus, and that “budget cuts could be looming if universities and colleges are found to be ‘indoctrinating’ students.” She quotes DeSantis as saying:
It used to be thought that a university campus was a place where you’d be exposed to a lot of different ideas. Unfortunately, now the norm is, these are more intellectually repressive environments. You have orthodoxies that are promoted, and other viewpoints are shunned or even suppressed.
Writing in Salon, Brett Bachman adds: “Based on the bill’s language, survey responses will not necessarily be anonymous — sparking worries among many professors and other university staff that they may be targeted, held back in their careers or even fired for their beliefs.”
Freedom of expression on college campuses has become a crusade on the right — yet it seems that the more grotesque examples of campus censorship come from the right, whether it be a campaign to delay tenure for the 1619 Project journalist Nikole Hannah-Jones at the University of North Carolina, to Trump’s threat in 2019 to cut federal funds to institutions that failed to protect free speech as defined by him, to DeSantis’ various outbursts.
DeSantis is one of the most dangerous politicians in the U.S. — a smarter, more disciplined Trump who might very well win the 2024 election, especially given the media’s desire to normalize him and get back to the business of covering politics like a sporting event. His attempts to silence the academy ought to serve as a signal as to what he’s really all about: the unsmiling face of authoritarianism.
Benjamin Harrison. Photo (cc) 1998 by Monroedb1. Painting by T.C. Steele.
I recently sketched out some ideas for how the Constitution could be rewritten in order to get ourselves out of a dilemma that’s become a crisis — rule by a shrinking minority of voters, grounded in the reality that our smallest states have disproportionate power in the Electoral College and the Senate.
The most immediate result is that we now have a Supreme Court with three members who were chosen by a president who lost the popular vote and confirmed by Republican senators who represented far fewer Americans than the Democrats who voted against them. If that’s not a crisis of legitimacy, I don’t know what is.
After I wrote that post, the feedback I got on Twitter was partly favorable, partly unfavorable. I think the most substantive criticism is that I’m being hypocritical — that I wouldn’t care if the situation were reversed. I’ll plead guilty to one small part of that argument: I’m thinking that the time may have come to trim the Supreme Court’s immense powers, and that’s something that didn’t bother me when it was issuing landmark decisions on reproductive rights and same-sex marriage. (Then again, more rights shouldn’t be controversial since no one is being forced to avail themselves of those rights.)
But for the larger point I was trying to make? No, no hypocrisy. And that’s because the situation we find ourselves in is unprecedented, at least not since the Gilded Age. I recall sitting in the green room a few weeks before Election Day in 2000, waiting to go on “Beat the Press,” when one of the other panelists, Tom Fiedler, started talking about the possibility that the popular-vote winner might lose in the Electoral College. Impossible, I replied. These things have a way of working themselves out. After all, it had been 112 years since Benjamin Harrison, a Republican, had been installed as president despite losing the popular vote to Democrat Grover Cleveland. It wasn’t going to happen again.
Well, we all know how the 2000 election unfolded. George W. Bush became president thanks to the Electoral College, even though Al Gore won the popular vote. But that seemed like an outlier, and we were all far more riveted by the shenanigans in Florida than we were by the undemocratic nature of Bush’s victory. The belief that Bush stole Florida overshadowed the Electoral College issue.
What drove the Electoral College to the forefront, of course, was the 2016 election, which Hillary Clinton won by nearly 3 million votes. Thanks to the way the vote broke down geographically, Donald Trump won the Electoral College. In 2020, Joe Biden won by 7 million votes — a landslide by modern standards — yet still came uncomfortably close to losing in the Electoral College. It’s not at all inconceivable that the next Republican to win the Electoral College will also lose the popular vote by 8 million to 10 million people.
The Senate is, if anything, even less democratic. Tiny Wyoming (581,000 residents) gets two senators, who are virtually guaranteed of being Republican. California’s 39 million residents are also represented by just two senators, both Democrats. Yet at least in the post-New Deal era, the situation in the Senate was muddled enough that such geographic inequities didn’t really come into play. The Senate was Democratic for virtually all of that time, but the racist Southern Democrats really made the Senate a three-party body. Northern Democrats often worked with liberal and moderate Republicans (yes, there really were some). Coalition-building was possible. The filibuster was rarely used.
In today’s New York Times, Jamelle Bouie, whose writings on the Constitution and the state of democracy are indispensable, has this to say:
As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.
Our current system favors geography over people and the interests of the minority over those of the majority. This has nothing to do with minority rights. A properly functioning liberal democracy is ruled by the majority with certain rights guaranteed so that government doesn’t deteriorate into a tyranny of the majority. Like, you know, not being forced to quarter troops in your home in peacetime. Or the right to a speedy and public trial. Or the right to exercise control over your own body, or marry the partner of your choosing.
I truly believe that when something can’t go on forever, then it won’t. At some point, the majority is going to rise up and demand change. Imagine what would happen if the next Republican presidential candidate loses the popular vote by 10 million yet wins the Electoral College with the help of dirty tricks in a few Republican states — dirty tricks that are being enshrined into law even as we speak. You can say that Democratic leaders won’t do anything, or won’t do enough. But you know what? It’s going to be taken out of their hands.
I wish you all a great Independence Day — and I look forward to a day when we can all reclaim our independence.
There’s something about writing a proposed constitutional amendment that has the whiff of nuttery about it — some guy sitting at home in his underwear (hey, that’s me!) raving about something that has no chance of influencing anyone.
But, having complained quite a bit about our slide into undemocratic minority rule — a consequence of small, Republican states having a disproportionate advantage in the Electoral College and the Senate — I thought I’d lay out one possible solution. Or solutions.
We could move to a parliamentary system, and that would certainly be an improvement on what we have now. But I thought it would be interesting to see what it would look like if we tried something less radical, but still comprehensive. So here we go.
The presidency
This one is simple. Abolish the Electoral College. Elect the president by popular vote. One person, one vote should be our lodestar. Let’s end the absurdity of voters in tiny Wyoming having nearly four times as much power as Californians.
Congress
The Senate is unfixable because of its two-senators-per state requirement. That makes it far worse than even the Electoral College. Let’s make the Senate a mostly honorary body whose members are appointed by the states. I would restrict the senators’ powers to choosing the wine at weekly social gatherings they would be required to attend.
House members should be elected to four-year terms in presidential-election years. No more midterms. House districts would be drawn by nonpartisan commissions. States would be free to set up multi-member districts if they choose. (Actually, they are free to do so now, but no one does.) For instance, Massachusetts could have three House districts instead of nine, and each district would elect three members.
The Supreme Court
The nine members would each be appointed to a single 16-year term. Each president would be guaranteed two appointments per term. Proposals to curtail the justices’ power ought to be considered as well, but I’m not going to address that here.
Elections
All federal elections would require a majority winner. If the first-place finisher in a multi-candidate field receives less than 50% of the vote, a runoff would be held.
Attempts to regulate campaign spending would be deemed not to be in violation of the First Amendment.
Needless to say, attempts to restrict the vote of the sort that a number of red states have adopted would be taken out with the trash and burned.
Problem solved! Two hundred thirty-four years of accommodating the former slave states are enough.
Rudy Giuliani at the 2016 RNC. Photo (cc) 2016 by Gage Skidmore.
Ever since Rudy Giuliani took the podium at the 2016 Republican National Convention and started screaming incoherently, I’ve wondered: What happened? Of course, he’s only gotten worse since then, devolving into Donald Trump’s ultimate toady. In Sunday’s New York Times, Andrew Kirtzman traces Giuliani’s fall (free link) to his failed 2008 presidential campaign, a failure that he writes set off years of depression and heavy drinking.
As it happens, in December 2007 I covered a Giuliani event in New Hampshire for The Guardian, a moment when he was in mid-flop. So did my friend and old Boston Phoenix running mate, Seth Gitell, who was at that time working as a columnist for The New York Sun. We drove up together. You can read Seth’s piece here. Below is my Guardian piece, which is also still online. I’ve left the Britishisms intact. Rudy, you coulda been a contendah.
Tactical retreat
By pulling out of New Hampshire, Rudy Giuliani may live to campaign another day
By Dan Kennedy | The Guardian | Dec. 18, 2007
Rudy Giuliani made news in Durham, New Hampshire on Monday. But unless you’re attuned to the inside game as played by the political class and the media, you might have missed it.
The former New York mayor brought his campaign for the Republican presidential nomination to Goss International, a printing-press manufacturer located in an office park on the outskirts of this small, snow-blanketed college town. Giuliani bounded on stage, about a half-hour late, spoke for a few minutes and took questions from employees.
In person, Giuliani can be compelling. If what he had to say was a familiar and predictable blend of free-market nostrums and 9/11, the way he said it was nevertheless worth paying attention to. He manages to come off as informal and conversational while still speaking in complete sentences; to bond with the crowd while retaining an air of authority.
But Giuliani, ahead in the national polls for months, is suddenly in trouble, especially in the early states of Iowa and New Hampshire, whose first-in-the-nation primary will be held on January 8. His blueprint all along has been to hang in until big states like Florida hold their primaries. It was always a dubious plan, since early success generates momentum that is hard to stop.
Add to that a passel of problems — from the federal indictment on corruption charges of his former police commissioner, Bernard Kerik, to a kerfuffle over taxpayer-funded security provided to his third wife, Judith Nathan, back when she was his mistress — and Giuliani is suddenly looking a whole lot less inevitable than he did during the summer and fall. The news this week was that Giuliani was pulling back on his advertising in New Hampshire, a move that could be described as tactically necessary but strategically desperate.
So it was actually the most innocuous-sounding sound bite Giuliani provided that had the most news value. “I’ll be spending some of my Christmas holiday here in New Hampshire,” he said toward the end of his talk. He made a joke about skiing, too. Was Giuliani still planning to make a serious play for New Hampshire?
“Rudy Giuliani is not pulling out of New Hampshire,” insisted his state campaign chairman, Wayne Semprini, as a gaggle of reporters surrounded him after Giuliani had left the room. Semprini added that “55-60% of the people are still undecided,” holding out the prospect of a late surge for Rudy.
Next the journalists started talking with each other. Brad Puffer of New England Cable News stuck a microphone in front of New York Sun columnist Seth Gitell, a Bostonian and an old friend with whom I had made the trek north that morning. Gitell described Giuliani’s Christmas-holiday remark as “a symbolic attempt to maintain some presence in New Hampshire”. David Saltonstall, who’s covering Giuliani for the New York Daily News, told me it looked as though the former mayor was trying to keep his campaign in New Hampshire alive while simultaneously cutting back. “He’s walking kind of a tightrope with voters here, I think,” Saltonstall said.
It’s the perverse game of expectations, which often proves to be more important than the actual result. If Giuliani is perceived as having scaled down his campaign here but still manages to do well — say, coming in second to Mitt Romney, whose victory would be discounted because he’s the former governor of Massachusetts, a bordering state — then he could live to fight another day. (The flavour of the moment, Mike Huckabee, is not likely to be a factor in New Hampshire, where his fundamentalist religious views are nearly as unpopular with local Republicans as taxes and restrictions on gun ownership.)
Predictions are futile. Four years ago, I came to New Hampshire to watch John Kerry perform at an event that I described as an elegy for a campaign that had failed to anticipate the rise of Howard Dean. A few weeks later, Dean had collapsed and Kerry had all but wrapped up the Democratic nomination. Giuliani could win. Stranger things have happened.
But Giuliani’s problem is that he may have peaked too soon. No one expects Huckabee to win the nomination, but Romney, John McCain and even Fred Thompson all seem to be exploiting the turmoil created by Huckabee’s rise more adroitly than Giuliani has.
Giuliani told the lunch-time crowd that his platform comes down to two broad themes: “being on offence against Islamic terrorism and being on offence for a growth economy”. Trouble is, when it comes to politics, Giuliani these days is strictly on defence.
The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?
I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:
Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.
If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.
Maura Healey. Photo (cc) 2015 by Charlie Baker. Yes, that’s what the photo credit says. Yes, I realize that’s Baker on the left-hand side of the frame.
State Sen. Sonia Chang-Díaz’s withdrawal from the gubernatorial race on Thursday underscores the astonishing collapse of politics in Massachusetts. This is a state where politics has traditionally been a year-round sport. In the past, an open governor’s seat would have attracted multiple candidates. Instead, Attorney General Maura Healey will run uncontested for the Democratic nomination and will probably beat either of the two Republicans who are running.
Contrast what’s happening today with 1990, when Gov. Michael Dukakis retired. Three prominent Democrats sought the nomination — Boston University president John Silber, Attorney General Frank Bellotti and Lieutenant Gov. Evelyn Murphy. Although Murphy ended up withdrawing, Silber beat Bellotti in a closely fought race. Silber, in turn, was defeated by former federal prosecutor Bill Weld, who won the Republican nomination by beating House Republican leader Steve Pierce.
More recently, in 2006, a relatively unknown former Justice Department official, Deval Patrick, won the Democratic primary for governor with less than 50% of the vote against businessman Chris Gabrieli and Attorney General Tom Reilly. That November, Patrick defeated Lt. Gov. Kerry Healey and several independent candidates, the most prominent of whom was the late businessman Christy Mihos.
So how did Healey end up running unopposed for the Democratic nomination? There are some unique factors at play. Republican Gov. Charlie Baker took his time in announcing he wouldn’t seek another term, which gave a significant advantage to the well-known, well-funded Healey. Former Boston Mayor Marty Walsh decided he’d rather stay in Washington than run for governor.
I worry, though, that we’re all losing interest in politics. Healey is first-rate, smart, personable and progressive. After her, though, who? U.S. Rep. Ayanna Pressley? Boston Mayor Michelle Wu? Maybe. Both are at a relatively early stage of their political careers — especially Wu — so perhaps we just have to give it time.
As for the Republicans, who have produced a slew of governors over the years to act as a moderating force against the dominant Democrats, the situation is sad indeed. Two Republicans are running for governor this year. One, state Rep. Geoff Diehl, is a full-blown Trumper. The other, businessman Chris Doughty, is trying to position himself as a Baker-style moderate — but he opposes abortion rights and has taken stands that suggest he supporters deeper tax cuts than Baker would support.
For those of us who’ve been following Massachusetts politics for years, it’s a dispiriting time. I hope it’s just temporary.
Early in my career, the police chief of a smallish town and I were shooting the breeze one morning. He told me that a police groupie I was familiar with — somewhat mentally disturbed — would come in several times a year and ask for a handgun license.
Police chiefs in Massachusetts have an enormous amount of discretion in deciding who gets a handgun license, and the chief said there was no way he was going to approve one for this guy. There is no question in my mind that the chief was making the right call. This was not the sort of person you wanted to see walking around town with a gun. But presumably it’s now going to be a lot harder for local police departments to say no.
Today’s U.S. Supreme Court ruling to overturn a gun-control law in New York State has increased the danger of falling victim to gun violence. It’s a sickening decision, and the justices should be ashamed of themselves.
Constitution Hall in Philadelphia. Photo (cc) 2016 by Dan Kennedy.
With the Supreme Court on the brink of overturning Roe v. Wade, it’s a good opportunity to remind ourselves of the extent to which our democracy has lurched off the rails.
Three of the five anti-Roe justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote and were confirmed by senators who represented far fewer Americans than those who voted against confirmation. Gorsuch occupies the stolen seat that should have gone to Merrick Garland. Barrett was rushed through at the last minute following the death of Ruth Bader Ginsburg.
This is not democracy. A few years ago, I laid it out at GBH News — and addressed the falsehood you’ll often hear that our system was designed to protect minority rights from majority rule. (The Bill of Rights is what protects the minority.) I hope you’ll give it a read. We are long overdue for a thorough-going update to our 18th-century constitution, which, quite simply, no longer works.
A few words about the extraordinary scoop broken Monday evening by Politico that the U.S. Supreme Court has put together a draft opinion overturning Roe v. Wade, thus freeing states to ban abortion.
First, we all make fun of Politico. I make fun of Politico. It succeeded by taking the horse-race approach to politics and amping it up on steroids, which hasn’t been good for anyone. But Politico is a large news organization with many talented journalists, most definitely including Josh Gerstein and Alexander Ward, who broke the Roe story. It is possible to both generalize about Politico’s shortcomings and praise it when it produces extraordinary work.
Second, Brian Stelter, writing for CNN’s “Reliable Sources” newsletter, flagged a tweet from SCOTUSblog that is worth pondering: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.
Good. If the right-wing majority is going to turn back the clock on reproductive rights by 50 years, then let the entire court descend into scorpions in a bottle. The interests of society as a whole may be better served by the spectacle of a court in chaos. We all need to understand that this is now a rogue institution, undone by Donald Trump’s illegitimate choices of Neil Gorsuch, who holds the seat that should have gone to Merrick Garland, and Amy Coney Barrett, rushed through at the last minute.
Third, the draft decision cites the 1896 Plessy v. Ferguson as a case whose outcome was so egregiously wrong that it had to be overturned in its entirety. Plessy failed to recognize the rights of Black Americans under the 14th Amendment and was in fact reversed in Brown v. Board of Education 58 years later. The decision to overturn Roe, though, is more like Plessy than Brown in that it takes away long-established constitutional rights.
Historian Heather Cox Richardson compares the draft opinion to the infamous Dred Scott decision, the 1857 Supreme Court case that took away what few rights Black Americans had at that time and paved the way for the Civil War. She writes in her newsletter:
And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.
The decision isn’t final yet, but I don’t see how we can expect it to change. This is a dark day in American history — the latest in many dark days. God help us all.
