Month: October 2020

Two things: first, that 30 to 40 percent of Americans think that it is perfectly OK to have a right-wing president who does whatever he pleases, with some as yet unknown, but probably large, percentage of them supporting the full Orban Option; and second, that our liberal democratic institutions are much more fragile than we thought. There are no mechanisms in place that will guarantee protection from a future Franco. In the final analysis, to the extent that the system survived, it was due to Trump’s narcissism, unpopularity, and laziness, and to the wisdom and courage of some civil servants and members of the judiciary, not to any paper checks and balances, let alone the Democratic Party.

So, all Biden has to do, if he is elected, is overcome what is left of the leadership of the GOP, prove to left-leaning millennials that the system can actually work, and appease the elements of the right who want to make America white and Christian again without betraying his constituents.

What could go wrong?

I don’t want to be overconfident here, so let’s assume the worst case scenario: through a combination of vote suppression, inappropriate interventions by the Supreme Court, and the bugs in the Electoral College, Trump squeaks out a narrow win even though he loses the popular vote by a large margin, and the House remains under Democratic control. Blue America is seething with anger. What can we do?

All of the options are lousy. Here they are:

1. LITIGATION: We already lost in the Trump Supreme Court.
2. IMPEACHMENT: LOL.
3. THREATS OF SECESSION: Blue America isn’t a compact area from a geographic perspective, and it would just give Trump an excuse to send in troops and treat us as occupied territory.
4. A GENERAL STRIKE: It wouldn’t have enough support to work. There are too many Trump supporters out there who wouldn’t cooperate.
5. SHUT DOWN THE GOVERNMENT: Trump doesn’t care, and the GOP views shutdowns as good things.
6. DEFAULT ON THE DEBT: An act of nihilism that shakes things up without actually accomplishing anything.
7. TAXPAYER STRIKE: This one makes some sense, if it is widespread enough, but businesses run by Trump supporters wouldn’t cooperate, and the GOP doesn’t care if the deficit explodes, anyway.
8. MASSIVE DEMONSTRATIONS: Trump shrugs them off and continues his victory lap.

The bottom line is that we have to win the election–period. There is no Plan B.

If, as I suspect, the Democrats win a decisive victory in November, a civil war will break out almost immediately between the PBP and Reactionary factions of the Republican Party. Mourning for their dead tax cuts, the PBPs will put the blame for the defeat on Trump’s affinity for red meat tweets and lack of interest in wooing centrist voters; the Reactionaries, for their part, will say that Trump sucked up too much to plutocrats, and will call for an economic agenda that is more friendly to white Christian workers. McConnell will attempt to bridge the gap by declaring war on the new administration. It will be 2009 all over again, but with fewer Democrats in the Senate.

But a second, less publicized civil war will also be fought between two different groups within the Reactionary faction. The more ambitious and pragmatic Reactionaries will be aware of Trump’s flaws and will want to put the man on golf cart in the rear view mirror as soon as possible. A large percentage of the extreme right, however, will view the Trump presidency as a sort of reactionary Brigadoon that was undeservedly destroyed by the MSM and the pandemic. A new Lost Cause, if you will. Trump, of course, will do everything he can to encourage this line of thinking as he tweets furiously from his exile at Mar-a-Lago, and the MSM will continue to treat him as an evil rock star, which won’t help.

Will Trump still be the leader of the GOP in 2024? The odds say no, given his age, failures, and legal problems, but it isn’t impossible. One thing is for sure: the poison of his influence will be felt for years to come.

In the last week or so, I have posted about originalism, “soft totalitarianism,” and constitutional arguments supporting minority rule by reactionaries. Is there a point of intersection among these three arguments?

Yes. All of them presuppose that, like their proponents, the Founding Fathers were militant Christians who would naturally support their position that they are entitled to frustrate the will of the majority in the culture wars. There is no historical evidence for this whatsoever. The most prominent FFs were Deists, not Christians, and one of the few things upon which they all agreed was opposition to any form of an established church.

With some ambivalence, Ross Douthat introduces us to the concept of “soft totalitarianism” in today’s NYT. The gist of this extreme right-wing theme is that an unholy alliance of tech giants, the cultural establishment (the MSM and Hollywood), and young left-wing academics is threatening the freedom of speech of conservative Americans. In their view, they are entitled to hold political power indefinitely in order to keep the cultural enemy in check. Is there any validity to this?

No, because:

1. By definition, there is no such thing as “soft totalitarianism.” A totalitarian wants complete control over every sphere of life within his country. Even the proponents of this theory don’t go that far. The argument focuses on Facebook and Twitter, not Joe Biden.
2. Totalitarianism requires a monopoly of political power and force, not just near unanimity on cultural issues. In other words, it operates through government, not business.
3. The theory assumes that Mark Zuckerberg cares more about left-wing ideology than maximizing his profits, which is clearly false.
4. The right still has vast areas of cultural and media safe space (Fox News; talk radio; religious media, etc.) that is not in any danger of intrusion by the left even if you incorrectly assume that Facebook and Twitter have turned against it.
5. What has political power–in particular, the Trump presidency–done to eliminate this problem, to the extent that you believe it exists? Nothing, to date.

There is a dangerous subtext to the concept of “soft totalitarianism.” Using that bogus label provides a justification for supporting a hard totalitarianism on the right. It is clear that the proponents of the theory really want to go far beyond Trump and terminate the First Amendment rights of the majority of Americans, because that is the only way they can turn the tide in the culture wars. Look for them to support a candidate who is openly in favor of illiberal democracy, or even fascism, in 2024.

Here’s how Biden should respond to questions about climate change and the Green New Deal:

“Here’s the deal, folks. Manmade climate change is real. There is a scientific consensus that it exists. You can see it every day, in more frequent and destructive fires and hurricanes. You can see it in sea level rise in some communities. It’s already imposing costs on us, and they’re only going to get worse.

We’re going to pay those costs one way or another–the only questions are how and when. We can ignore the problem and pay the costs by picking up the pieces after the hurricanes and the wildfires. That means tens–and maybe hundreds–of billions of dollars every year in property damage, and lots of deaths. It means we are treating deaths from natural disasters as acceptable collateral damage for maintaining our fossil fuel industries. It also means falling way behind China in the high tech industries of the future, and more pressure from illegal immigrants from countries that are going to get unbearably hot.

Alternatively, we can invest money up front in creating the infrastructure and the new industries that will help us compete with the Chinese. We can avoid at least some of the damage and the deaths and the turmoil arising from climate change. We can help create a more stable and peaceful world. That’s my vision for the future.

A vote for Trump is a vote for a slightly more comfortable present and a future full of catastrophes. A vote for me is a vote for a brighter future for you, your children, and your grandchildren. It’s up to you, America.”

Nancy Pelosi has been absolutely right in insisting that any stimulus has to be on her terms, because it would be perceived as a victory for Trump, and would help him make his case for re-election. But the economy is struggling, and the effects of a stimulus approved today wouldn’t be felt until after the election is over. In addition, Biden’s lead looks insurmountable, barring massive vote suppression and unlawful judicial intervention on Trump’s behalf. Does that change things?

In my opinion, yes. Mitch and the GOP senators have already given up on Trump and moved into 2009 sabotage mode. Any suitably large stimulus would have to be approved over their objections. A Trump stimulus bill primarily supported by Democrats would consequently crack the GOP wide open. If you’re a GOP voter, do you follow Trump or McConnell on Election Day? It would demoralize the base and cause massive confusion in the red camp.

There would be some risk involved, but only vote suppression can win the election for Trump at this point. The man on golf cart will have no interest in stimulus after the election, which means no relief until 2021, and then only if the Democrats win the Senate, too. The changing circumstances, in my view, justify the risk. Make a deal with Trump, and watch the fur fly!

On the GOP senator Ben.

It’s clear Donald Trump’s not his friend.

He’s dissing the Don.

He’s right to move on

For we’ve seen how this movie will end.

If you believe what Amy Barrett said during her confirmation hearings, the legal process is very simple and mechanical. All you need is a judge who has the self-discipline to follow the law instead of enforcing her own policy preferences. She reads the statute and the relevant legislative history (the latter only when necessary) and reaches the right conclusion. Easy!

The reality, of course, is completely different. Statutes and case law are frequently filled with ambiguity. Legislative history goes all over the place. For every canon of construction, there is an equal and opposite canon. There is plenty of room for the judge to impose her own values on the litigants without ever having to disclose what they are. It is a feature of the system that feels unfair to everyone, but it cannot be eliminated. There is no justice machine–just an imperfect system run by fallible people.

That, of course, is why it is necessary in the confirmation process to ask questions about attitudes towards values and policy that sound irrelevant, and why the nominees generally blow them off.

A quiet, sober, restrained discussion on ABC. A raucous, combative town hall featuring an angry, out of control liar on NBC. It could only happen in 2020.

I can’t imagine that any sane person who toggled between the two would vote for Trump.

The left thinks that rumors and fake news generated by the right and spread at the speed of light beyond the control of gatekeepers on Facebook are a danger to our liberal democracy. The right thinks a private company should not have the ability to censor political speech. In this case, both sides are correct.

The issue isn’t whether Facebook puts its profits ahead of the public interest, even though it does; the root of the problem is that Facebook is effectively an immensely influential international public utility being operated as a private company for the benefit of its wealthy investors. That cannot last. Facebook should either be broken up or regulated like other public utilities in order to reduce its power over our political system.

All GOP nominees profess to believe in “judicial restraint,” and promise not to substitute their values for the intent of the legislature. Originalism, however, is a “Protestant” approach to constitutional law, ironically practiced most conspicuously by Catholics, which shows little deference to judicial precedent, past practices, and legislative intent. The two judicial doctrines most loved by the GOP are, therefore, fundamentally in conflict with each other. Thanks to Senator Durbin for pointing this out in a relatively subtle way.

While commenting on pending cases is a violation of the judicial canons, and speculating about the outcome of incomplete factual hypotheticals can mislead the audience, there is absolutely no good reason other than self-preservation why judicial nominees cannot talk about the reasoning in past cases. To refuse to do so deprives the Senate and the American people of the ability to make a fully informed decision on confirmation. The “Ginsburg Rule,” in short, needs to go. Senators on both sides of the aisle should refuse to confirm nominees who use it to protect themselves in the future.

Barrett admitted that Griswold was not likely to be relitigated in the future. It is not a hypothetical fact situation. Barrett’s refusal to talk about it was thus a completely unwarranted extension of the “Ginsburg Rule” even if you think the “Rule” has merit, which it does not.

Both parties got what they wanted out of the hearing. The burden is on Barrett to prove that she isn’t a handmaid for an evil and corrupt president. If she casts a decisive vote to strike down the ACA or keep Trump in office against the will of the American people after this performance, there will be hell to pay in this country in 2021.

While I have a bit more to say about the process in general, I will not review Day 4, which will be completely pointless.

Lindsey Graham started the Barrett hearings both yesterday and today by complaining that South Carolina was being shortchanged by Obamacare funding formulas. What he somehow neglected to mention is that the Republicans in South Carolina, undoubtedly with his support, have refused federal funding to expand Medicaid. That is the reason his state, and some other red states, are net donors in Obamacare funding. All they have to do is take the federal money to make the problem go away.

So it isn’t just his flip-flop on confirming Supreme Court justices in an election year. His hypocrisy knows neither limits nor shame.

The Constitution says nothing about a First Lady. As far as I know, the statute book doesn’t, either. It is a status, not a government job. It does not come with a salary or legal responsibilities, and should not carry any special privileges other than physical protection.

The DOJ apparently thinks otherwise. It has filed suit to enforce an NDA involving a former friend of the First Lady. This is a purely private contractual matter that has nothing to do with the public interest, as no classified information is involved. To the extent that anyone should care about routine communications between FLOTUS and her friends, the law should favor public disclosures, not secrecy.

This is another obvious attempt by Barr to suck up to his boss. It’s a minor item, but it reflects Trump and Barr’s belief that l’etat, c’est le president, as it erodes the distinction between public and private conduct. It’s a precedent that needs to disappear as soon as Trump leaves office.

Consider the plight of an unwed pregnant teenage girl who is denied the right to an abortion. She will be stigmatized for the rest of her life; the father suffers no such indignity. She may well be rejected by her family, abandoned, or even subjected to physical abuse. She has no guarantee of receiving the necessary medical care during her pregnancy. Giving birth comes with considerable medical risk. When the process is over, she will either have to deal with the pain of surrendering the child or accept severe constraints on her ability to develop her talents and make a living. It is a grim picture.

To which American reactionaries say . . . GOOD! Their ultimate objective is to eliminate, to the maximum extent possible, the freedom of women to engage in sex outside of marriage. To them, the struggles associated with pregnancy are the penalty for sin. Eliminating them would be a serious mistake.

While genuinely pro-life people actually do exist, they represent a small minority of the Republican Party. Barrett is clearly one of them, but once on the Supreme Court, she will effectively be a tool of the reactionaries, because they are the ones with the power in her party.