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.
This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.
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.
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.
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.
Please consider becoming a paid member of Media Nation for just $5 a month. You’ll receive a weekly newsletter with exclusive content. Click here for details.
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.
Comments are open. Please include your full name, first and last, and speak with a civil tongue.
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.
From the moment President Trump appointed Judge Amy Coney Barrett to the Supreme Court, the right has responded with the bogus allegation that opposition to her confirmation was grounded in anti-Catholicism. In fact, it is her right-wing views on reproductive rights and LGBTQ issues, and her membership in another organization, that has attracted notice.
On Thursday, The New York Times published an in-depth look at People of Praise, a religious group to which Barrett’s family has belonged for many years. I urge you to read it, because it strikes me that People of Praise fits at least a few of the definitions that cult expert Steven Hassan identified in his book “Combatting Cult Mind Control” some years back.
The two that come to mind are the group’s secrecy — to this day, Barrett has never confirmed her membership, although it seems pretty well established — and its method of keeping members in line by having others watch over them in what sounds like a pretty suffocating manner. Indeed, Barrett was at one time listed as a “handmaid,” in charge of keeping tabs on others, although the group has since dropped that unfortunate label.
“It wasn’t sinister, but there was a strong sense of membership, of being ‘You’re in or you’re out,’” a disillusioned would-be member named Annie Reed told the Times. “It made me wary.”
It’s hard to know what to make of this, and we shouldn’t get carried away. But if Senate Majority Leader Mitch McConnell insists on moving ahead with confirmation hearings before the election, we need to get a thorough airing of People of Praise and exactly how it has shaped Barrett’s beliefs.
On this day of national mourning, do yourself a favor and read Linda Greenhouse’s magnificent obituary of Justice Ruth Bader Ginsburg in The New York Times. The accompanying video is outstanding as well.
So where do we go from here? During the Democratic primary campaign, Pete Buttigieg called for expanding the size of the Supreme Court as retribution for Senate Majority Leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s choice to replace the late Antonin Scalia.
Buttigieg’s idea gained no traction then. But Joe Biden and the Democratic congressional leadership should go to McConnell immediately and make it clear that expanding the size of the Supreme Court from nine to 11 is exactly what they’ll do if he moves ahead with his grotesquely hypocritical plan to fill Ginsburg’s seat before Jan. 3, when the next Congress is sworn in.
Of course, they will then have to go out and win the White House and Senate and hold onto the House. Otherwise, even if McConnell agrees, he’ll turn around and ram through President Trump’s choice during the lame-duck session.
Recently I proposed to fix our state elections by adopting ranked voter choice, moving the primaries to June, and making them nonpartisan. (You’re welcome.) Today I’m back with the exponentially more difficult task of repairing our broken Supreme Court confirmation process. My plan, I think, is simple and logical. But I’d be the first to concede that it has virtually no chance of happening.
What’s next? Democrats may take over the Senate in the November election, and they’ll be spoiling for a fight. It’s more than possible that they will reinvestigate Kavanaugh and maybe even impeach him. He has given them plenty of reasons to do so. But that’s the road to chaos, and it would lead to an endless cycle of retribution. That cycle has to be stopped, and on terms that recognize what a terrible choice Kavanaugh was while leaving both parties a chance to regain their dignity.
The way to do that is to let Kavanaugh take his seat on the court (assuming the FBI doesn’t find something new and explosive or at least two Republicans decide they can’t abide him) and then look to the future. I’d do this in three steps.
1. McConnell must apologize. The root of all this madness is Senate Republican leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s nominee to replace the late Justice Antonin Scalia. McConnell’s alleged reason was that the next president should make that choice, even though Obama had nearly a year left in his term. It was an outrageous and shocking breach of protocol, and Democrats remain rightly incensed.
Republicans like to cite the Senate’s defeat of Robert Bork, chosen by President Reagan in 1987, as the original sin that led to today’s dysfunction. That’s ludicrous. Bork was granted a hearing and was rejected for what opponents considered his extreme views. Six Republicans were among those who voted no. That’s the way it’s supposed to work. Since that time, nearly every justice nominated by Republican and Democratic presidents alike has been approved by a wide bipartisan margin.
McConnell needs to acknowledge publicly the damage he did to the Senate and negotiate an agreement that neither party will try such a maneuver again. Leaders of both major parties should restore the 60-vote margin needed to avoid a filibuster, which would encourage presidents to choose consensus candidates for the court rather than extreme ideologues. In other words, they need to return to “regular order,” the breakdown of which the late senator John McCain cited when he voted against repealing the Affordable Care Act.
2. The court should be temporarily expanded. In writing about the lunacy that the Senate may fall into if the Democrats seek revenge for Garland, some have predicted that they may try to expand the size of the court in order to offset the conservative majority. As with the possible impeachment of Kavanaugh, that seems likely to set off an endless series of tit-for-tat actions.
But by temporarily expanding the court by one seat, from nine to 10, Congress could acknowledge the outrageousness of what happened to Garland and send a clear message that it won’t happen again. Appoint a 10th justice now, and the next time a justice leaves the court, let it shrink back to nine.
3. Trump should nominate Garland. Temporarily expanding the court from nine to 10 justices accomplishes nothing if President Trump simply chooses another candidate from the list that the Federalist Society has provided him. Trump should be part of the negotiations over how to fix the process. And he, McConnell, and Senate Democratic leader Chuck Schumer should all agree that the 10th justice will be none other than Judge Garland. Garland, a moderate, would be an ideal consensus choice; before McConnell nixed him, some Republican senators had said he was someone they could support.
Trump, needless to say, would have to demonstrate that he is capable of acting for the good of the country rather than simply indulging his animal instincts. It’s not likely. Then again, nothing I am suggesting here is likely.
The tragedy is that extreme polarization and partisan warfare are tearing down every institution of government, including the Supreme Court. I think the record is clear that Republicans are to blame far more than the Democrats. But they both need to be part of the solution — if there is to be any solution.