Tag: GBH News

Beyond ‘court packing’: Repairing the Supreme Court in an era of minority rule

Photo (cc) 2020 by Geoff Livingston.

Previously published at GBH News.

Last spring I warned that the media might seek out dubious issues to even things up if former Vice President Joe Biden built a substantial lead over President Donald Trump. So far we haven’t seen much of that. But Biden’s reluctance to say whether he would try to expand the size of the Supreme Court has proved to be something of a speed bump for the Biden-Harris campaign.

“Harris Dodges Questions on Support for Supreme Court Packing at Debate,” said CBS News following Sen. Kamala Harris’ encounter with Vice President Mike Pence. “Biden and Harris Need an Answer on Court Packing,” proclaimed The Atlantic. And they were hardly alone. (Thanks to Eric Boehlert’s newsletter, Press Run, for rounding up the headlines.)

The problem with this focus on “court packing” isn’t that it’s not a legitimate issue. We would all like to know if a Biden administration would seek to add seats. What’s really at issue, though, are matters of language and context.

“Court packing” sounds like an abuse of power rather than something the president and Congress can do as a matter of law. The context, of course, is that the Republicans, under Senate Majority Leader Mitch McConnell, stole one court seat by refusing to consider Judge Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia, even though the nomination came months before the 2016 election. And now McConnell is on the verge of stealing a second seat by ramming through the nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg even as ballots in the presidential election are already being cast. Yet it is Biden who is facing questions.

“What makes this so especially bizarre,” writes Boston College history professor Heather Cox Richardson in her newsletter, Letters from an American, “is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology.”

Once Barrett has been confirmed, and there is little doubt about that, Trump will have named three of the nine justices under the most undemocratic, unrepresentative circumstances imaginable.

As we all know, Trump lost the popular vote to Democratic nominee Hillary Clinton by 48% to 46%, a margin of more than 2.8 million. What’s less well known is that Republican senators represent fewer people than Democratic senators even though they hold the majority.

During the 2017-’08 session, for instance, when Justices Neil Gorsuch and Brett Kavanaugh were confirmed by slim margins, (54-45 and 50-48, respectively), the Senate’s 50 to 52 Republicans (the number changed several times) represented about 44% of the country’s population. Democrats and independents who caucus with them represented 56%. The 53 Republicans who will decide Barrett’s fate represent less than 47% of the country. (Click here for a chart breaking down the numbers. The 2017-’18 figures are based on 50 Republican senators.)

If you’re thinking this is not how we ought to conduct business in a democracy, well, you’re right. And yet there is reason to doubt that modern Republicans even support the idea that the majority ought to rule. Last week, for instance, U.S. Sen. Mike Lee, R-Utah, tweeted a message right out of the authoritarian playbook: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

And sure enough, new research by psychology professor Bob Altemeyer and Nixon administration alumnus John Dean shows that Trump supporters are increasingly eschewing elections in favor of the strongman system of government, according to The Washington Post. For instance, about half of Trump supporters agreed that “once our government leaders and the authorities condemn the dangerous elements in our society, it will be the duty of every patriotic citizen to help stomp out the rot that is poisoning our country from within.”

Which brings me back to where I started. A president who lost the popular vote will have nominated three Supreme Court justices, confirmed by a Senate controlled by a party that represents millions fewer Americans than the opposition Democrats. Two of those three justices, Gorsuch and Barrett, will owe their presence to Republican norm-shattering. And Republican support for democracy in general appears to be waning.

Given all that, the possibility that Biden may seek to enlarge the size of the court sounds like a good move.

Several years ago I offered a few ideas on how to fix the court — to repair the damage done by McConnell and restore its image as a trusted institution. The court is still in drastic need of fixing. So let me offer a few more — none original with me, but proposals I’ve gleaned following the death of Justice Ginsburg. More than anything, the court has become too important. The following steps would make every vacancy less a matter of life and death than it is now.

First, if Barrett is confirmed, Biden is elected president and the Senate flips to blue, Democrats should expand the court by two members. Some progressives have argued for four new seats, but that would be an overreach. Two new seats would restore the ideological balance of the court that existed before Justice Scalia’s death. Perhaps the number could move back to nine over time.

Second, justices should be subjected to term limits. Eighteen years sounds about right.

Third, each president ought to get the same number of picks per term. Two? If a president is re-elected, then yes, they’d get four picks, which is a lot. But the problem now is that there isn’t enough turnover, and what little there is takes place mainly because of death.

I’ll leave it to better minds than mine to figure out how to square two picks per term with an odd-numbered court of either nine or 11 members.

Our system is profoundly broken. The challenges we face don’t lend themselves to easy solutions. Applying the one-person, one-vote rule that is at the heart of democratic governance, for example, would require major constitutional changes in the form of abolishing the Electoral College and changing the way we choose senators. That’s not going to happen any time soon.

So let’s move beyond the gotcha issue of whether Joe Biden wants to “pack” the Supreme Court. We can reform the court by turning down the temperature and moving it out of its current central role in our political culture. Expanding the size of the court, perhaps temporarily, as well as imposing term limits and guaranteeing a regular rotation of justices, might return us to the days when all but the most extreme nominees were confirmed with consensus support.

Talk about this post on Facebook.

The most important veep debate ever, played out in the midst of a national crisis

Previously published at GBH News.

If, as James Nance Garner once said, the vice presidency “isn’t worth a bucket of warm spit” (and, uh, no, he probably didn’t quite put it that way), then the quadrennial vice presidential debate falls below even that low bar. The memorable moments over the years, such as they were, can be summarized as “You’re no Jack Kennedy,” “Who am I? Why am I here? ” and Sarah Palin winking at the camera.

But given the gerontological cast of the two presidential candidates, tonight’s encounter between Vice President Mike Pence and his Democratic challenger, Sen. Kamala Harris, promises to be more significant than usual. Pence’s boss, President Donald Trump, is 74 and is currently recovering from COVID-19. The top of the Democratic ticket, former Vice President Joe Biden, is 77, and though his health seems fine, he would be the oldest person by far to be elected president. Thus Pence and Harris both give new meaning to the phrase “a heartbeat away from the presidency.”

The presidential campaign itself has been marked by more improbable twists and turns than a self-published mystery novel — from impeachment to stunning revelations about Trump’s taxes, from a worldwide pandemic to economic collapse. In recent days, though, with early voting already under way, it’s begun to seem like the final plot developments are slipping into place.

First, Trump’s catching COVID seems like a metaphor for his entire horrendous response to a disease that has now killed more than 210,000 of his fellow Americans. Just as with the country as a whole, he has shown blatant disregard for those in his immediate circle, resulting in what amounts to a mini-pandemic ripping through the White House and among top Senate Republicans.

He held indoor and outdoor events for his Supreme Court nominee, Judge Amy Coney Barrett, at which few people wore masks. Because of characteristic obfuscation and lying by him and his staff, we don’t know exactly when he was diagnosed or how sick he really is. He put his own Secret Service agents at risk by cruising around Walter Reed Hospital.

And let’s face it. Even though no decent person wants Trump to become seriously ill, it sent a terrible message to the country for him to announce, as he did on Monday after being discharged from the hospital, “Feeling really good! Don’t be afraid of COVID. Don’t let it dominate your life.” Not only is that an insult to the dead and those still struggling with the after-effects of the virus, but it’s also not the way to encourage mask-wearing and social-distancing.

Second, Biden may be on his way to a decisive if not overwhelming victory. Among media observers, the narrative in place since March has been that if Trump loses, it will be because of COVID and the economy. Don’t you believe it.

According to the RealClearPolitics polling average, Biden has held a steady lead over Trump since October 2019, which makes sense given that Trump is a historically unpopular president. That lead has been widening in recent days, with a Wall Street Journal/NBC News poll conducted after the first chaotic debate putting Biden ahead by a margin of 53% to 39%.

Of course, it’s not over till it’s over. Biden’s lead in the handful of states that will determine whether he can win an Electoral College victory is narrower than it is in the national polls, and we still don’t know how Republican efforts to suppress the vote will play out, or if with Russian propaganda will have an effect.

The most likely scenario, though, is that we’ll find ourselves looking back after the votes are tallied and see that our belief that Trump would somehow pull one last, ginormous trick out of a hat was grounded more on flashbacks to 2016 than on the last four years. Many of us have watched in amazement as Trump’s approval rating has never dipped much below 40%. The corollary, of course, is that it’s never risen much above that, either. Almost from the day he was inaugurated, more than half the country has has disapproved of Trump’s performance as president. And between now and Nov. 3, they can register that disapproval at the polls.

But first comes the encounter between Pence and Harris. Pence is easily caricatured as the ultimate Trump suck-up whose base doesn’t extend much beyond the evangelical vote. Four years ago, though, Hillary Clinton’s running mate, Sen. Tim Kaine, couldn’t put a dent in him. Pence is better at this sort of thing than his detractors imagine.

Fortunately for the Democrats, Harris is a considerably more nimble debater than the hapless Kaine. At one time I thought she might be her party’s strongest presidential candidate, but her uneven campaign took her out of contention. Despite that, she is a first-rate political talent, smart, personable and — the key, given Biden’s age — credible as a possible president.

Given that Biden, if he wins, would be 82 by the time his first term ends, it seems more than likely that both Harris and Pence will be running for president four years from now. Look at tonight as a rehearsal for 2024 — played out in the midst of one of the worst crises our country has experienced.

Talk about this post on Facebook.

No more debates? Following Tuesday’s fiasco, some call for just that.

Not an image from Tuesday night’s Biden-Trump debate.

Previously published at GBH News.

This morning, the day after what was surely the worst presidential debate in our unhappy nation’s history, I have the task of making sense of it through the eyes of the media. What can I say? We all saw what we saw, and if you didn’t see it, count yourself among the fortunate.

I could quote commentary after commentary calling out President Donald Trump for his unhinged performance, in which he lied promiscuously and constantly shouted over former Vice President Joe Biden and moderator Chris Wallace.

But I doubt anyone is going to top the presidential historian Jon Meacham, a Biden supporter, who tweeted during the close minutes that “the incumbent’s behavior this evening is the lowest moment in the history of the presidency since Andrew Johnson’s racist state papers.”

Meacham appeared to be referring specifically to Trump’s refusal to denounce white supremacists. But it could be applied just as accurately to the entire hour-and-a-half fiasco.

The most consistent theme that’s emerged following the debate is that we shouldn’t have any more. On CNN, Wolf Blitzer raised that possibility as soon as it ended, as did former Democratic strategist James Carville on MSNBC.

“I never thought I’d say this, but Vice President Biden is going to have to think long and hard whether they want to put the country through this again,” said Carville, according to an account at the pro-Trump website Breitbart. “This accomplished nothing for Trump, and I think Biden did fine. But it was not a very good night for American democracy at all.”

Blitzer and Carville were far from alone. At The Bulwark, Never Trump conservative William Kristol called Trump’s behavior a “disgrace” and “sickening,”and wrote that Biden “should not put the nation through another ordeal like that.” Added liberal columnist Frank Bruni of The New York Times, “I wasn’t in the crowd of people who believed Joe Biden shouldn’t deign to debate President Trump, but put me in the crowd that believes he shouldn’t debate him again.”

Will the remaining debates be canceled? It seems unlikely. The Biden campaign put out the word Tuesday night that the former vice president would stick to the schedule. And one of the headlines at the aforementioned Breitbart this morning was “Media Push Biden to Cancel Future Debates,” an indication of the pounding Biden would take if he says he’s had enough.

Still, the Commission on Presidential Debates needs to take a hard look at what, if anything, can be done to put the next encounter back on track — or if it’s even possible.

A few other observations:

• Wallace, the Fox News anchor who only recently earned praise for a tough interview with Trump, got called out on multiple fronts for failing to keep the proceedings under control. For instance, New York Times columnist Michelle Goldberg wrote, “Chris Wallace was utterly disgraceful as a moderator, constantly letting Trump interrupt Biden and allowing him to spout gross and anti-democratic lies about the legitimacy of the election.”

Of course, we wouldn’t want to ignore the alternative-reality crowd. Noted Mar-a-Lago Club member Howie Carr, writing at the currently homeless Boston Herald, accused Wallace of teaming up with Biden. “Two on one is Democrat fun,” Carr sneered, “and that’s what the president was up against last night.”

I’m usually pretty hard on moderators, but I thought Wallace did as well as anyone could given that Trump was completely out of control. Wallace was perhaps a bit too passive early on, but, starting about halfway through, he repeatedly called out Trump for his abusive behavior. You have to ask yourself: What could Wallace have done other than walk off?

• Biden’s performance came in for some criticism as well, and not just from the Trumpist right. The Boston Globe’s James Pindell gave Biden a “C” (and Trump a well-deserved “F”), writing, “Biden wasn’t able to instill confidence that he is up for the job…. While he didn’t get rattled, the former vice president often struggled to find his own lines throughout the debate. He seemed tired and unsure what to do. He was not crisp.”

At The Atlantic, David A. Graham, a harsh Trump critic, was nevertheless underwhelmed with the former vice president, writing that “tonight saw the return of the Biden who stumbled his way through debates in the Democratic primaries. Answers took left turns, then right turns, then U-turns, feinting in several directions and ending nowhere.”

But given that Biden constantly had to talk over Trump and keep his train of thought, it seemed to me that he had a pretty good debate. So I’m with Josh Marshall of the liberal website Talking Points Memo, who put it this way: “Biden did fine. Not great. But fine. I’d say he had a B performance with some B+ or even A- minus moments. But for him that’s fine. He’s ahead. He’s not running as best debater. He’s not running as most dynamic figure. He’s not competing for most unstable affect. He’s running as the guy who will end the nightmare. If that’s the goal he turned in just the right performance.”

Besides, Biden managed to get off the line of the night: “Will you shut up, man? This is so unpresidential.”

• Finally, we shouldn’t forget that debates don’t matter. Polls showed that viewers thought Hillary Clinton won all three of her debates against Trump four year ago, and that John Kerry bested George W. Bush in 2004. CBS News reported that its snap poll of Tuesday’s proceedings gave the edge to Biden, 48% to 41%, which seems to be nothing more than a reflection of his and Trump’s standings in national polls.

And in certain far reaches of Trumpland, the president did just fine. At the Washington Examiner, Rob Crilly quoted several pro-Trump observers and ended with this: “During the event, he may have lacked Biden’s crafted zingers, but he knew exactly what he wanted to say.” The Wall Street Journal editorial page called the debate a “depressing spectacle,” but called out Biden as much as Trump. At least Michael Goodwin of the New York Post — like the Journal, a Murdoch property — was honest enough to admit that Trump’s “boorish” behavior undermined his cause.

We witnessed something truly awful Tuesday night, and yet little has changed.

“Much like the Trump presidency, it was a national embarrassment,” wrote Boston Globe columnist Renée Graham. Yes, and we have two more presidential debates to go, plus a vice presidential debate next week.

The fundamental dynamic remains intact. Biden has led consistently since January. Trump supporters support Trump, which means he’s going to make it close and create post-election chaos if it appears that he has lost.

God help us all.

Talk about this post on Facebook.

Contrary to James Fallows’ lament, political coverage really is better this time

James Fallows. Photo (cc) 2019 by the Brookings Institution.

Previously published at GBH News.

Strictly speaking, there is nothing actually wrong in James Fallows’ 4,000-word takedown of the political press, which has been the talk of liberal Twitter since it was published by The Atlantic earlier this month.

The sins he documents are real: reflexively balancing coverage between “both sides,” even when one side lies repeatedly; dwelling on the horse-race aspects of the contest; and wallowing in the spectacle, as we did in 2016, when then-candidate Donald Trump’s unhinged rallies proved to be far more entertaining than anything Hillary Clinton could offer.

But to argue, as Fallows does, that we’re doing it all over again, and that Joe Biden is falling victim to the same irresponsible coverage that befell Clinton four years ago, is to misunderstand the moment. To put a new twist on an old phrase, Fallows is missing the trees for the forest. His grasp of the big picture is solid. What he doesn’t see is that the 2020 campaign is being covered very differently compared to 2016.

“Many of our most influential editors and reporters are acting as if the rules that prevailed under previous American presidents are still in effect,” Fallows writes. “But this president is different; the rules are different; and if it doesn’t adapt, fast, the press will stand as yet another institution that failed in a moment of crucial pressure.”

So far, so good. But his contention that we’re dealing with a “Groundhog Day” universe, in which the campaign is playing out just like it did in 2016, doesn’t hold up to scrutiny. It’s no exaggeration to say that, four years ago, large segments of the political press had hated the Clintons for the previous quarter century. Hillary Clinton had to deal with her husband’s legacy, sexism, the bogus email story and the exaggerated Benghazi aftermath.

Biden surely has enemies, but they are fewer in number and softer of voice. Of course, he’s also campaigning in the midst of the worst pandemic since 1918-’19, so he hasn’t been scrutinized in quite as up-close-and-personal a manner as he otherwise would have been. Still, there is every reason to think that the vitriol directed toward Hillary Clinton was unique — that is, uniquely intense, uniquely awful and uniquely unfair.

Rather than deal with Fallows’ critique point by point, I want to bring up three stories that he doesn’t mention — the dogs that didn’t bark. They’re important because they demonstrate that it’s really not Groundhog Day. Any one of these stories would have been covered relentlessly four years ago regardless of their merits, and could have done great damage to the Biden campaign if given that kind of oxygen. Instead, all three have been relegated to the background. Yes, they could re-emerge, possibly at the debates. But the campaign will be over in a few weeks, and early voting has already begun.

• The Tara Reade story. Remember her? She was the former Senate staff member who stepped forward last spring and claimed that, years ago, Biden had pinned her to a wall and sexually assaulted her in the corridor of a Capitol Hill office building. The claim was shocking and seemed contrary to what we knew about Biden. But, at least at first, the media did not dismiss her charges. How could they? She was there, we weren’t, and she deserved to have a chance to tell her story.

Soon, though, Reade’s narrative unraveled. The two big blows came when the “PBS NewsHour,” in an exhaustively detailed report, found no evidence that Biden had ever been accused of sexual assault by anyone other than Reade — and that the logistics of the assault as she described them were literally impossible. Simultaneously, Politico reported that Reade had spent much of her adult life lying and cheating people out of money, and had never been heard to say anything negative about Biden.

That should have been the end of it — and, against all odds, it was, though in earlier campaign cycles it might have kept right on spinning. I do think the media made a mistake in not continuing to pursue the story to find out who, if anyone, was paying Reade. Still, it was a rare instance of a scandal being debunked and staying debunked.

• The Hunter Biden story. Who would have imagined that a salacious Rudy Giuliani-fueled tale of corrupt intrigue in Ukraine would have faded away? But it did, and despite occasional squeaks from the Trumpist right, it has remained on the fringes.

In case you’ve forgotten, Joe Biden’s son Hunter was wildly overpaid to serve on the board of a Ukrainian energy company called Burisma. Joe Biden, as vice president, pressured the Ukrainian government to remove the prosecutor general who had been investigating Burisma. That sounds pretty bad. But it turned out the prosecutor general was himself a corrupt hack, and Joe Biden had merely been acting at the behest of the entire international community.

There was more to it than that, but the bottom line is that there was no scandal. The media got off to a bad start, but soon realized they were being led down a rat hole and backed off. The last time I heard it mentioned was at the Republican National Convention, when former Florida attorney general Pam Bondi brought it up rather ineffectually.

• The dementia story. Now here’s one that the more mindless elements of the media really could have sunk their teeth into. All you have to do is remember the endless speculation after Hillary Clinton stumbled out of a car and then was diagnosed with pneumonia to understand how hard it is for the press to resist a story about a supposed medical cover-up.

In Biden’s case, the accusation coming out of the fever swamps is that Biden is suffering from dementia and that he is the mere puppet of the Democratic left, personified by his running mate, Kamala Harris, notwithstanding the fact that she’s never been a favorite of the left. The Trumpist right has been touting a Zogby poll that found more than half of respondents supposedly believe Biden “is in the early stages of dementia.”

For the most part, though, the media have ignored this foolishness. They see what everyone sees — that, at 77, Biden comes across as less energetic than he used to, but with no loss of mental acuity. The gaffes roll right off him; after all, he has been putting his foot in his mouth for his entire career. Besides, his opponent is Trump, who’s only a few years younger and can’t put together a coherent sentence.

“It’s rarely the new issues that most bedevil us,” Fallows writes. “It’s the same old problems and failures and blind spots and biases, again and again and again.” He’s right. But Biden enjoys significant advantages in terms of media coverage compared to Clinton four years ago. Perhaps the biggest of those advantages is one I haven’t even mentioned: The press now understands that Trump can win, and he’s turned out to be an even scarier threat to democracy than he appeared to be in 2016.

The final few weeks of the campaign are going to be incredibly ugly, especially now that the legacy of Ruth Bader Ginsburg and the politics of a vacant Supreme Court seat have been added to the mix. But Biden, unlike Hillary Clinton, is well-liked and has benefited from the media’s refusal thus far to wallow in phony scandals.

Political coverage of presidential campaigns can be and often is a catastrophe. This time around, though, it really is better.

Talk about this post on Facebook.

COVID Diary #11: Back on campus, and feeling pretty good about it

Photo (cc) 2019 by Dan Kennedy.

Previously published at GBH News.

It feels more normal than I had expected.

I’m writing this on Tuesday of Week Two at Northeastern University. I’ve taught five classes — two via Zoom, three in person. I’ve taken three COVID tests. I’ve been rear-ended on the Zakim, taken the commuter rail, gotten on the Orange Line and walked the three miles from North Station to campus. I’ve ordered coffee, including my first Starbucks since last March, which I’m drinking right now.

And yes, I’ll admit, it’s good to be back.

Was I skeptical? Of course. Across the country, many employees are being told to work from home until next January at the earliest, even though working in a socially distanced office seems pretty low-risk. By contrast, college faculty are exposing themselves to young adults who, no matter how well-intentioned they may be, are going to spend some of their time partying, drinking, having sex and spreading whatever viruses they may be carrying, including COVID. Northeastern has already kicked out 11 freshmen, and Boston College is in the midst of what may be the early stages of a surge.

So far, though, I’m impressed with what I’ve seen. Mask-wearing is universal. Most people are conscious of not getting too close to anyone else. And though I’m teaching one of my classes in person, precautions are being taken. In a room in which as many as 19 students are sometimes assigned, I have a class of nine, and only seven of them can attend on any given day. We have a cart loaded with audio-visual equipment so that those attending remotely can see and hear us, and vice-versa. I’m impressed with the quality and how easy it is to use, although I needed some help from one of our brilliant students to get it up and running.

COVID has accelerated an upheaval in higher education that was already under way. Costs are out of control. Too often, young people and their families are left with unaffordable debt once they’ve picked up their degrees and launched their careers. Increasingly, we are being told that students would be better served by online education at a fraction of the cost.

Thus the return to campus this fall, at Northeastern and across the country, is driven by economics. We’re determined to show that there is value to the full in-person, on-campus college experience. As Harvard and MIT chaplain Greg M. Epstein wrote in The Boston Globe this past Sunday, “educational institutions and those who care about them risk everything if we forget that non-academic student activities help students become fully human.”

Less altruistically, colleges and universities need the money if they are going to continue with the faculty and infrastructure they have now. I’m not opposed to that. After all, one of the many things Northeastern does with the money it receives from students is pay my salary. I could have chosen to teach from home. At 64, I’m in the vulnerable age group. But I wanted to give the students who are enrolled in my in-person class as normal an experience as possible.

But only if it’s safe. At least at the moment, it’s looking good. The university is testing everyone — faculty, staff and students — several times a week. The most recent seven-day average of positive test results is just 0.05%, well below the state’s own admirably low rate of 0.8%. (Apples-and-oranges alert: Yes, I realize that not everyone in the state is being tested, and that a disproportionate number of those seeking tests have symptoms. Still, there’s no question that Northeastern is doing well so far.)

Still, the picture nationwide is unsettling. The New York Times is tracking COVID at campuses across the country, and the picture at some institutions is disturbing indeed. USA Today reports that “of the 25 hottest outbreaks in the U.S., communities heavy with college students represent 19 of them.” The University of North Carolina and Notre Dame are among the schools that shut down almost as soon as they reopened. Maybe things will be different in the Boston area given that COVID is more or less under control in the city and the state. We’ll find out soon enough.

As I walk around the campus, I see students everywhere — not as many as usual, and all of them masked. It’s not ideal. But for young adults learning how to make their way in the world, it’s got to be better than holing up in their parents’ basement for months at a time.

Talk about this post on Facebook.