Like no doubt many of you, I am horrified by the Supreme Court’s decision in the presidential immunity case but have little to offer beyond what you’re reading and seeing elsewhere. Nor did I feel reassured when President Biden came out and read a five-minute speech. Here’s part of what the historian Heather Cox Richardson had to say in a truly chilling essay for her newsletter, “Letters from an American”:
This is a profound change to our fundamental law — an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law.
It seems to me that if we’re going to save the country, it’s absolutely essential that a Democrat be elected to the White House this fall, whether it’s Biden or someone else, and that the Democrats take both branches of Congress as well. That’s a tall, unlikely order. And I’m sorry to have to be so partisan, but Bob Dole, John McCain and Mitt Romney are not walking through that door.
After that, we can talk about what needs to be done about the court, which has long since sunk into illegitimacy thanks to the machinations of Mitch McDonnell and the corruption of Clarence Thomas and Sam Alito. I’ve seen an upsurge in commentary that the court should be expanded, but that strikes me as a fool’s game — something that could easily be gamed by both parties until we’re up to a 57-member SCOTUS. Instead, I’d like to see term limits that guarantee every president will get one or two appointments plus constraints on the court’s powers, which at the moment appear to be limitless.
Sometime in early March, the extremist Republican congressman from North Carolina decided to go off on Ukrainian President Volodymyr Zelenskyy. “Remember that Zelenskyy is a thug,” Cawthorn told supporters. “Remember that the Ukrainian government is incredibly corrupt and is incredibly evil and has been pushing woke ideologies.”
If Cawthorn had spoken, say, a month earlier, he might have earned the praise of former President Donald Trump and gotten invited to trash Zelenskyy some more on Tucker Carlson’s Fox News program. But that was before Zelenskyy had emerged as a heroic figure, standing up to Russia’s invasion of his country with a combination of eloquence and courage. “I need ammunition, not a ride,” he said to those who thought he should flee.
So former George W. Bush adviser Karl Rove, the sort of establishment Republican who was frozen out during the Trump era, used his Wall Street Journal column to let his readers know that Republicans like Cawthorn and Ohio Senate candidate J.D. Vance (“I don’t really care what happens to Ukraine one way or another”) are outliers — and that the party is oh-so-very supportive of Zelenskyy. “Republican members of Congress, candidates and commentators echoing Mr. Trump’s isolationism and Kremlin apologetics are out of sync with GOP voters,” Rove wrote.
WRAL.com of North Carolina, which obtained video of Cawthorn taking the Kremlin line, pushed that message even harder, stressing in its lead that Cawthorn’s vile rhetoric was at odds with his party and calling it “a comment that runs counter to the overwhelming share of Republicans with a favorable view of the leader fending off a military invasion from Russia.”
Oh, please. Can we get real for a moment? Yes, Rove and WRAL cited poll numbers that show Republicans, like most Americans, are now pro-Zelenskyy and support Ukraine in fending off the massive Russian invasion. But that is an exceptionally recent phenomenon.
In January, for instance, a poll by The Economist and YouGov found that Republicans viewed Vladimir Putin more favorably than President Joe Biden, Vice President Kamala Harris and House Speaker Nancy Pelosi — hardly surprising after years of pro-Putin pronouncements by Trump.
No wonder former secretary of state Mike Pompeo, who’d like to run for president, told Fox News that Putin is “a very talented statesman” with “lots of gifts” who “knows how to use power,” as Eric Boehlert, who tracks conservative bias on the part of the mainstream media, took note of.
Now, some of this reflects a split between the Republican Party’s right wing and its extreme right wing. Way out on the authoritarian fringes, figures such as Carlson and Steve Bannon have long admired Putin for his unabashed, anti-democratic espousal of white Christian dominance and attacks on LGBTQ folks. Politicians such as Cawthorn, Vance and Pompeo, rather than standing up for principle, are trying to thread the needle.
Meanwhile, their less extreme counterparts, including House Minority Leader Kevin McCarthy and Senate Minority Leader Mitch McConnell, have flipped from coddling Trump, Putin and Russia to claiming that Biden is to blame for the invasion and the high gas prices it has led to.
All of this has a historical context. As everyone knows, or ought to know, Putin has represented an existential threat to Ukraine since 2014, when he invaded the Ukrainian peninsula of Crimea and incorporated it into Russia. Putin appears to be gripped by the idea of a Greater Russia, of which in his mind Ukraine is a part. Ukraine was a Soviet republic, and Putin has always expressed nostalgia for the U.S.S.R. But the two countries’ ties go back centuries, and apparently no one cares about that more deeply than Putin.
Into this box of dry kindling came the spark of Trump in 2016. His numerous statements of support for Putin and pro-Russia actions couldn’t possibly all be listed here, but a few that pertain to Ukraine stand out. One of Trump’s campaign managers, Paul Manafort, had worked for a pro-Russian political faction in Ukraine and, upon being forced out, offered his services to Trump free of charge. You may also recall that a plank in that year’s Republican platform guaranteeing Ukraine’s security was mysteriously watered down — and a delegate to that year’s convention later said she was asked directly by Trump to support the change. (Manafort later went to prison for financial crimes he committed in Ukraine, only to be pardoned by Trump.)
That was followed by revelations in the fall of 2019 that Trump, in a phone call to Zelenskyy, demanded dirt on Biden in return for military assistance — assistance that Ukraine needed desperately to deter Russian aggression. Trump was impeached over that massive scandal. Yet not a single Republican House member (not even Liz Cheney) supported impeachment, and only one Republican senator — Mitt Romney — voted to remove Trump from office.
As detailed a month ago by The Washington Post, Trump has continued to praise Putin, hailing his war against Ukraine as “genius” and “savvy,” while Trumpers like U.S. Rep. Paul Gosar of Arizona sneer, “We should just call ourselves Ukraine and then maybe we can get NATO to engage and protect our border.”
Mother Jones reported over the weekend that Russian media outlets have been ordered to quote Tucker Carlson as much as possible. Joe Kent, a Trump-endorsed Republican congressional candidate in Washington state, endorsed Cawthorn’s eruption this past Saturday and went him one better, tweeting: “Zelenskyy was installed via a US backed color revaluation [sic], his goal is to move his country west so he virtue signals in woke ideology while using nazi battalions to crush his enemies. He was also smart enough to cut our elite in on the graft. @CawthornforNC nailed it.”
There was a time when, as the old saying went, politics stopped at the water’s edge. That wasn’t always good policy, as elected officials came under withering attack when they dared to criticize misbegotten actions such as the wars in Vietnam and Iraq. But there was a virtue to it as well. When we go to war or, in the case of Ukraine, engage in high-wire diplomacy aimed at ending a war, it’s that much harder when critics are sniping at our leaders. Can you imagine if Republicans had gone on television in 1962 to say that Nikita Khrushchev was right to place Soviet missiles in Cuba?
Claiming that Republicans are united in supporting Ukraine doesn’t make it so. Some are, some aren’t. It’s shocking that a few fringe figures like Cawthorn and Kent are openly criticizing Zeleneskyy even now — but it’s just as shocking that praise for Putin was a mainstream Republican position as recently as a month or so ago.
Unfortunately, the media’s tendency to flatten out and normalize aberrant behavior by the Republicans will prevent this from growing into an all-out crisis for the party. We’ll move on to the next thing, whether it be expressing faux outrage over Vice President Harris and Secretary of Transportation Pete Buttigieg’s touting electric cars while gas prices are high (what better time?) or Biden’s latest miserable polling numbers.
Anything that enables our feckless media to cover politics as the same old both-sides game that it used to be.
One president lied about COVID-19 (the country’s and his own), embraced white supremacists and tried to overturn the results of an election that he lost. Another president has hit a few bumps in the road as he attempts to persuade Congress to pass his agenda. Can you guess which one received more negative news coverage?
If you guessed President Joe Biden, then come on down. According to an analysis of 65 news websites, Biden’s treatment by the media was as harsh or harsher from August through November of this year than then-President Donald Trump’s was during the same four-month period in 2020.
On one level, it’s inconceivable. On another, though, it’s all too predictable. Large swaths of the media simply cannot or will not move beyond both-sides journalism, equating the frustratingly hapless Democrats with a Republican Party that has embraced authoritarianism and voter suppression.
“My colleagues in the media are serving as accessories to the murder of democracy,” wrote Washington Post columnist Dana Milbank, who ordered up the study. He concluded: “Too many journalists are caught in a mindless neutrality between democracy and its saboteurs, between fact and fiction. It’s time to take a stand.”
As I’ve written before, and as many others have said, we’re in the midst of a crisis of democracy. The Republican Party, already disproportionately empowered because of the Constitution’s small-state bias and the Senate filibuster (the latter, of course, could be abolished tomorrow), is working to strengthen its advantage through partisan gerrymandering and the passage of voter-suppression laws. The result could be white minority rule for years to come.
The situation has deteriorated to the point that the European think tank International IDEA now regards the United States as a “backsliding democracy.” To quote from IDEA’s report directly, “the United States, the bastion of global democracy, fell victim to authoritarian tendencies itself, and was knocked down a significant number of steps on the democratic scale.”
And the media remain wedded to their old tropes, covering political campaigns as though they were horse races and treating the two major parties as equally legitimate players with different views.
It’s a topic that was discussed at length recently on Ezra Klein’s New York Times podcast by New York University journalism professor Jay Rosen and guest host Nicole Hemmer, a scholar who studies right-wing media. Their conversation defies easy summary (the whole episode can be found here), but essentially, Rosen argued that the political press falls back on its old habits because breaking out of them is just too difficult.
“The horse race absorbs a lot of abuse from people like me,” he said. “But it can take that abuse, because it is such a problem-solver. It checks so many other boxes that even when people know it’s kind of bankrupt, it stays on.” As an alternative, Rosen proposes coverage based on a “citizens agenda,” which he has written about at his blog, PressThink. But he admitted to Hemmer that we may lose our democracy before his ideas are adopted by more than a fraction of journalists.
What I find especially frustrating is that the media have not been ignoring the Republican threat to our democracy. Far from it. As just one small example, the Times on Sunday published a front-page story by Nick Corasaniti on a multitude of actions being taken at the state level to suppress the vote and put Trump loyalists in charge of the election machinery.
“Democrats and voting rights groups say some of the Republican measures will suppress voting, especially by people of color,” Corasaniti wrote. “They warn that other bills will increase the influence of politicians and other partisans in what had been relatively routine election administration. Some measures, they argue, raise the prospect of elections being thrown into chaos or even overturned.”
So why am I frustrated? Because this sort of valuable enterprise reporting is walled off from day-to-day political coverage. We are routinely served up stories about the congressional Republican leaders, Rep. Kevin McCarthy and Sen. Mitch McConnell, going about their business as though they were latter-day versions of the late Bob Dole, sharply partisan but ultimately dedicated to the business of seeking compromise and governing. In fact, whether through cowardice or conviction, they are enabling our slide into authoritarianism by undermining the investigation into the Jan. 6 insurrection as well as by failing to call out Trump and the excesses of their worst members.
Earlier this year, Washington Post columnist Margaret Sullivan endorsed the idea of a “democracy beat,” which would look closely at attempts to subvert voting rights. Sullivan would go further than that, too. “The democracy beat shouldn’t be some kind of specialized innovation,” she wrote, “but a widespread rethinking across the mainstream media,” permeating every aspect of political and governmental coverage.
If Trump runs again, he may very well end up being installed as president even if he loses both the popular vote and the Electoral College. Who would stop him? In the aftermath of the 2020 election, there were still enough Republican state and local officials with integrity who refused to go along with Trump’s demands that they overturn the results. That is not likely to be the case in 2024. As Barton Gellman wrote in a new Atlantic cover story, “The prospect of this democratic collapse is not remote. People with the motive to make it happen are manufacturing the means. Given the opportunity, they will act. They are acting already.”
Meanwhile, the media go about covering President Biden and his travails as though our politics hadn’t changed over the past 40 years. Of course Biden needs to be held accountable. The ugly withdrawal from Afghanistan, confusing White House messaging about COVID and his inability to bring Sens. Joe Manchin and Kyrsten Sinema to heel are all worthy of tough coverage. (But not inflation because, please, don’t be stupid.) But it needs to be done in a way that we don’t lose sight of the big picture. And the big picture is that we are in real danger of losing our country.
As the Dartmouth political scientist Brendan Nyhan put it on Twitter, “The problem is the media failing to distinguish threats to democracy from normal negative coverage (an important form of democratic accountability!).”
The problem is the media failing to distinguish threats to democracy from normal negative coverage (an important form of democratic accountability!).
In other words, the fundamental problem isn't the Biden coverage (however imperfect); it's the Trump coverage. https://t.co/Qw7Z1ntfZC
— Brendan Nyhan (@BrendanNyhan on 🟦☁️) (@BrendanNyhan) December 4, 2021
Five years ago Thomas Patterson of the Harvard Kennedy School issued a report showing that coverage of Trump and Hillary Clinton during the 2016 general-election campaign had been equally negative — a finding that he found disturbing. Patterson wrote that “indiscriminate criticism has the effect of blurring important distinctions. Were the allegations surrounding Clinton of the same order of magnitude as those surrounding Trump? It’s a question that journalists made no serious effort to answer during the 2016 campaign. They reported all the ugly stuff they could find, and left it to the voters to decide what to make of it.”
Well, here we go again. Next time, though, it’s the future of democracy that is likely to be at stake.
In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.
But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.
Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)
The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.
This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.
Photo (cc) 2014 by the National Museum of American History
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Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.
Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.
At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.
Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.
The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.
And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.
This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.
We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.
Mitch McConnell. Photo (cc) 2014 by Gage Skidmore.
And so it’s over. In the aftermath of Impeachment II, the main controversy is about whether the Democrats did the right thing in reversing themselves over calling witnesses. I think they made a wise judgment. And Senate Minority Leader Mitch McConnell’s hypocrisy shows why.
In a blistering speech, McConnell endorsed the entire factual basis of the Democrats’ case against Trump. “There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their president.” And there was this:
Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.
Yet McConnell still voted against conviction, relying on the bogus argument that a vote to convict was unconstitutional because Trump is no longer in office.
At the end of all this, no reasonable person doubts that Trump incited the mob — not just on Jan. 6, but over the course of many months. No reasonable person doubts that he was reveling in the destruction, or that Republican Rep. Jaime Herrera Beutler was telling the truth about a toxic exchange between House Minority Leader Kevin McCarthy and Trump. Seven Republicans voted to convict Trump, making this the most bipartisan impeachment in history.
Given all that, it’s time for the Democrats to move on and let the center of gravity finally shift from Donald Trump to President Joe Biden.
Not everyone agrees, of course. The normally pragmatic Josh Marshall was apoplectic Saturday, writing in Talking Points Memo that the decision not to call witnesses was “inexplicable and maddening, to many or most Democrats outside the chamber because Democrats appeared to hold all the cards and all the votes and yet capitulated entirely.”
While it’s reasonable to imagine that witnesses would illustrate Trump’s depravity, it seems entirely likely that, as Trump’s lawyers continued simply to lie and their lies got spread through right-wing media as truth, Americans would have learned the opposite of what they should have.
Instead, the issue of Trump’s guilt on January 6 will play out in a courtroom, where there are actual rules about telling the truth.
We have lived through a terrible time, and it’s not over yet. The future direction of the Republican Party is far from certain, and it’s easy to imagine a thoroughly Trumpified party recapturing the House in 2022 as a result of gerrymandering and low voter turnout.
What we all need to concentrate on for the next two years is good governance — pushing for policies and programs that help people and, as best we can, putting the Trump era behind us. Biden is off to a good start, but a continuing obsession with Trump will hold him back. And that will hurt everyone.
Timothy Snyder. Photo (cc) 2015 by Heinrich-Böll-Stiftung.
A lot of smart people are trying to make sense of last week’s insurrection. Was it an attempted coup? I resisted the label at first on the grounds that there was literally no mechanism by which Congress could be forced to keep Donald Trump in office. But it’s becoming increasingly clear that Trump considered it a coup attempt, and that many of his thugs did as well.
With that in mind, I recommend this piece by Timothy Snyder that’s coming out in next week’s New York Times Magazine. Snyder, a history professor at Yale and the author of 2017’s “On Tyranny,” has written a brilliant analysis of the Republican Party in the Trump era. Reading the whole thing will be well worth your time, but I found two points that he made to be especially clarifying.
The first is whether what we’re looking at is fascism or not. Many of us have been struggling with that ever since Trump rode down the escalator some five and a half years ago. He clearly had authoritarian impulses. But fascism on the order of Franco or Mussolini?
The way Snyder puts it is that Trump’s presidency was defined by post-truth, which amounts to pre-fascism. He writes:
Post-truth is pre-fascism, and Trump has been our post-truth president. When we give up on truth, we concede power to those with the wealth and charisma to create spectacle in its place. Without agreement about some basic facts, citizens cannot form the civil society that would allow them to defend themselves.
If the coup attempt had somehow succeeded, I suppose we would be looking at actual fascism. But it didn’t, partly because enough of our elected officials held firm and prevented it from happening, partly because the mob was so incompetent. As Snyder writes, “It is hard to think of a comparable insurrectionary moment, when a building of great significance was seized, that involved so much milling around.” And yet we now know that some elements of the mob were prepared to take hostages and perhaps worse.
The other useful observation Snyder makes is that the Republicans are dominated by two toxic factions — the “breakers” and the “gamers.” The breakers are led by Sens. Josh Hawley and Ted Cruz, who were (and presumably remain) prepared to tear it all down in order to empower themselves. The gamers are exemplified by Senate Majority Leader Mitch McConnell, who was perfectly happy to exploit the chaos created by the likes of Hawley and Cruz — and, of course, Trump himself — in order to carry out their agenda of tax cuts for the rich and right-wing court appointments as far as the eye can see.
It will be fascinating to see whether the gamers are able to move on and or if instead they have damaged themselves beyond repair. I would love nothing better than for prinicipled Republicans who are neither breakers nor gamers split away and form a new conservative party.
But do they have enough of a critical mass to make a difference? I count senators like Mitt Romney Ben Sasse, Susan Collins and Lisa Murkowski as well as governors like Charlie Baker, Larry Hogan and Phil Scott. You may have their differences with all of them (I certainly do), but, to their credit, they have refused to align themselves with the breakers or, except on occasion, the gamers.
Snyder offers a chilling look at what we may be in for during the next four years:
For a coup to work in 2024, the breakers will require something that Trump never quite had: an angry minority, organized for nationwide violence, ready to add intimidation to an election. Four years of amplifying a big lie just might get them this. To claim that the other side stole an election is to promise to steal one yourself. It is also to claim that the other side deserves to be punished.
The Trump presidency has been awful in ways that we couldn’t have imagined four years ago — and I’m saying that as someone who expected it would be pretty awful. More than anything, we need to take advantage of the pending Biden presidency and Democratic control of Congress to make sure we don’t continue spinning out of control. As currently constituted, the Republicans should never control the levers of power again. We will see whether they have the capability or the willingness to reform themselves.
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Donald Trump was never going to be anything other than a terrible president. His political persona was crafted in the racism of birtherism, and to that he added misogyny and vicious cruelty.
But it’s interesting to ponder how he might have been a more formidable president. After campaigning as a populist, he cast his lot with the likes of Paul Ryan and Mitch McConnell. His only real legislative achievement was a massive tax cut that benefited rich people and corporations — the sort of thing any Republican president might have done. The Trump who was going to replace the Affordable Care Act with something better never made an appearance. For that matter, that version of Trump didn’t really exist except on Twitter.
We got a glimpse of the other road Trump might have taken over the past week, when he threatened to veto the COVID relief bill unless payments to individuals were raised from $600 to $2,000. His intervention came was cynical and poorly timed, given that his treasury secretary, Steven Mnuchin, had negotiated the deal with no apparent pushback (or even involvement) from the president.
And yet here we are. Trump finally backed down and signed the bill. Yet, because of his intervention, there seems to be at least some chance that the individual benefit will be raised to $2,000. The House on Monday approved $2,000 payments — no surprise, since the Democratic majority wanted to do that all along. But they were joined by 44 Republicans, and now the legislation will be taken up by the Senate.
Would a half-dozen or so Republican senators join Democrats in approving the higher payments if McConnell allows the measure to come to a vote? Possibly — especially given that two Senate seats in Georgia are on the line.
In the final days of his presidency, golfing and tweeting dangerous conspiracy theories about an election he decisively lost, Trump has showed us a glimmer of how his time in the White House might have been different. No doubt it still would have been awful. But it might have been slightly less awful for the MAGA types who continue to trust him even though he has done nothing but let them down.
I messed up the time and missed the train this morning, so I took a Lyft instead. The driver, Dave, told me that his business is down 40% since the start of the pandemic. He hasn’t been called to Logan in months. It’s also been quite a while since he picked up a student.
These are the costs of COVID-19 — and it’s going to get worse, and there’s no sign that Prime Minister Mitch McConnell will deign to bestow upon us another round of stimulus spending.
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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.”
Democracy isn’t the objective; liberty, peace, and prospefity 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.
