Sunday, September 27, 2020

Finding the "there" there

 In the meantime, I have been doing some reading.  I have read Josh Campbell's Operation Crossfilre Hurricane, along with Daniel Ziblatt's How Democracies Die, Mary Trump's Too Much and Never Enough and Stuart Stevens' It Was All a LieI have ordered John Dean's Authoritarian Nightmare, but it has not come in. And I have started the Inspector General's report on Crossfire Hurricane and plan to read the Senate Intelligence Committee's report.  So expect a lot of reviews coming up.

I will not waste much time on Operation Crossfire Hurricane because I did not see much "there" there.  Its most interesting insight was that the name "Operation Crossfire Hurricane" had no particular significance, it just sounded cool.  It has some FBI local color.  Otherwise I did not think I learned anything of significance from it.

In all fairness to Campbell, based on what I have seen so far from the Inspector General's report, the fault may not be with Campbell's writing, but with the operation itself.  There just wasn't much "there" there.  This may be a premature conclusion.  So far I have read only the executive summary and the statement of the relevant laws and policies.  But my overwhelming impression so far is that Operation Crossfire Hurricane didn't really do much certainly didn't learn much.  

The report, it should be added, is necessarily biased. An Inspector General's report necessarily focuses on what the agency did wrong, rather than what they did right.  The Inspector General has serious criticisms of the FISA wiretap on Carter Page, and on the FBI for giving too much credence to the Steele Dossier.  So the report may give more focus to the Steele Dossier than it deserves, but one certainly gets the impression that the Steele Dossier played an outsized roll in the FBI's investigation and never actually revealed anything of value.

My first impression of the Inspector General's Report is, don't read if if you are allergic to alphabet soup.  There is a lot of it there; so much that you really need glossary at hand to remind you what all the acronyms stand for.

Based on my reading so far, what appears to have happened was that the FBI was well aware of the Russian hacks of the DNC server and its release of the information to Wikileaks.  Then they received a shocking report from the Australian intelligence service telling them that George Papadopoulos, a Trump foreign policy advisor, had been approached by a probable Russian agent and offered dirt on Hillary Clinton.  Concerned that there might be communications between the Trump Campaign and Russia, the FBI did an open source and government database search on Trump Campaign personnel to see if any of them might be in communications with Russian intelligence.  They came up with four names -- Paul Manafort, Carter Page, George Papadopoulos and Michael Flynn.  Page was already under counterintelligence investigation for his tied to Russia, Manafort had worked for the pro-Russian government in Ukraine and was under investigation for financial crimes, Flynn had significant Russian ties and had been on Russian state television, and Papadopoulos had been the recipient of the message.

But then what?  I am still a little unclear.  The FBI made open records searches and send under cover informants to talk to Papadopoulos and Page, but were hampered by the need to keep the investigation secret.  So when Christopher Steele came along with reports alleging "an ongoing conspiracy," the FBI finally had something to sink its teeth into.  It investigated Steele's primary sub source (since revealed to be a US resident) and found much of his material unreliable.  Nonetheless, Steele claimed that Page was a liaison between Manafort and Russia, and had been offered damaging materials on Hillary Clinton when he visited Russia in June.  The FBI got a FISA wiretap, apparently in hopes of learning about the June meeting.  The report found many serious defects in how the FBI obtained the wiretap. Nor does the wiretap appear to have yielded any useful information.

Operation Crossfire Hurricane came up empty handed.  They did not find any evidence of communications between the Trump Campaign and Russia.  The Steele Dossier appears to have been their main evidence of such communications.  None of its allegations checked out.  There was not an ongoing conspiracy between the campaign and Russia, nor was Page any sort of liaison.  

And many Trump supporters take this to mean that no investigation should have been launched in the first place.  I disagree.  What the failure of the pre-election investigation proves is that it was hopelessly hampered by the need to keep the existence of the investigation secret, so it ended up chasing what amounted to a collection of fourth-hand rumors and seeking a FISA warrant, mostly because that was the best way they could think of to investigate without being found out.  The FBI rejected even subpoenaing documents for fear of being found out.

After the election, the Mueller investigation, and the Senate Intelligence Committee, armed with subpoenas, the power to prosecute for perjury, and the power of qualified immunity, were able to learn that there had been some very alarming going's on during the campaign.  

  1. Roger Stone was in regular (though indirect) contact with Wikileaks and also in regular contact with Donald Trump.  Stone told Trump what to expect was coming down the pike so Trump could plan his campaign accordingly, and also gave advice to Wikileaks on how to time the releases.
  2. Donald Trump directed Michael Flynn to find Hillary Clinton's missing e-mails on the dark web.  Flynn and his associated did their best, unconcerned with whether they might be dealing with Russian intelligence. Flynn and his associates did not, in fact, find the missing e-mails because they were not, in fact, on the dark web.
  3. Paul Manafort was in regular, almost daily, encrypted communication with a Russian spy and fed him a steady stream of campaign polling data.  We do not know what the Russians did with the data.  Nor is there any evidence Trump was aware of these communications.
Operation Crossfire Hurricane does not appear to have learned of any of these activities.  They were instead chasing a series of false leads generated the Steele Dossier.

It Is Not Normal For the Supreme Court to Decide an Election


Republicans, led by Ted Cruz, have given away the game. There has to be a ninth judge on the Supreme Court to decide the outcome of the upcoming election.  While Mitch McConnell played a game of appointment Fizzbin (the Senate should never confirm a Supreme Court nominee in an election year if the seat fell vacant in an election year,* it is the President's second term and the President and Senate are controlled by different parties), Cruz's argument is in blatant, irremediable conflict with the view that the Senate should never confirm a Supreme Court Justice in a Presidential election year.

Other Republicans (and Glenn Greenwald) promptly fell in line behind Cruz.  Before we let Republicans normalize this outrage, can we please consider what Cruz is saying?  He is saying in effect: 

  1. If Donald Trump loses in November, he will sue to overturn the result.
  2. He will probably offer a theory so implausible that John Roberts will not be able to swallow it, so we need a ninth justice to rule his way.
  3. We should accept all of this as normal.
Other Republicans (with the exception of Lisa Murkowski) seem to be doing exactly the same thing. They are outraged at Trump's refusal to commit to a peaceful transfer of power.  But they are fine with him suing to overturn the election if he loses, and fine with packing the court to ensure that it will accept his most outlandish theory.  But if he proves to be too outlandish for Gorsuch and/or Kavenaugh, they will accept defeat.

We need to proclaim loudly and with outrage just how abnormal all this is.  

    Number of US Presidential elections to date: 57.  (This will be number 58).

    Number decided by the vote of the Electoral College without interference: 53.

    Number decided by Congress:  2.  (Adams/Jefferson and Jackson in 1800/JQA/Henry Clay in 1824).

    Number decided by a commission that included Supreme Court Justices: 1.  (Hays/Tilden in 1876).

    Number decided by the Supreme Court:  1 (Bush/Gore in 2000).

The one election decided by the Supreme Court was an Electoral College deadlock that all came down to one state -- Florida.  The margin in Florida was razor-thin, such that the margin of victory was less than the margin for error in vote counting.  Rather than see that matter go to Congress (which had gone very badly the two times it happened), the Supreme Court stopped the count and declared Bush the winner.  Many suspected them of nakedly partisan motives.  

Having the Supreme Court decide the election proved to be no improvement whatever over having Congress decide it.  Currently the polls point to a clear Biden victory.  On the other hand, his lead has shrunk within the margin of error in Pennsylvania and Arizona.  So I suppose it is possible that, despite a clear popular vote victory for Biden, the Electoral College may deadlock and everything come down to a very close vote in Pennsylvania.  And it is entirely plausible that Trump's recount theory will be complete and utter bullshit that Roberts simply won't be able to stomach.

It's also possible that Biden will win a clear popular and electoral victory.  

But the idea that it is, and should be, a matter of routine for the loser of the election to sue to overturn the result, or that such an expectation should govern the choice of Supreme Court Justices is an outrage that Democrats should proclaim from every hilltop.


*A Democratic led Senate confirmed Ronald Reagan's nominee, Anthony Kennedy in 1988, the last year of Reagan's term, but the vacancy actually occurred in 1987.

What is a Loyal Opposition to Do?

You'll win so much you get tired of winning
I realize that no right wingers read my blog, but if they did I could imagine them protesting.  What if a Democrat is elected and wants to do something they see as genuinely harmful?  Does being a loyal opposition mean that we can't oppose what we see as harmful measures?  And my answer is of course, you should oppose whatever measures you see as bad.  But there are restraints on what is appropriate for a loyal opposition.  And, incidentally, this message is for my side as well.  Here are some suggestions:

Make peace with the New Deal

One of the Republican Party's deep underlying problems is that its donor class and its wonk/think tank class are committed, at least on paper, to the repeal of the New Deal, but that program has basically zero support among the voting public.  The Republican Party's response is to make a highly theoretical commitment to repeal all existing social programs but not press it too hard in the corridors of power, but instead make apocalyptic denunciations of any attempt at expansion.  Once Social Security was the end of all liberty and would place us on the road to a Communist tyranny.  When everyone settled in and started liking Social Security, it became tolerable, but Medicare and Medicaid definitely meant that freedom was lost.  When it turned out that liberty could survive Medicare and Medicaid, but Obamacare was Communist tyranny and meant T-4, death panels, mass murder of seniors, etc.  Well, Republican have failed to repeal Obamacare and appear to have made peace with it, but now anti-anti-Trumpers are warning that they will have no choice but to vote for Trump because a Democratic administration might add a public option.  Spare us!  None of this means that you have to agree to every expansion of the welfare state.  It just means stop treating every expansion as an apocalyptic battle with all liberty hanging in the balance and start treating it as an ordinary dispute.  

Accept that elections have consequences

This means that if the other party wins control of the Presidency and both houses of Congress, it will use its position to pass legislation.  This is perfectly normal, acceptable and reasonable.  Of course you are free to oppose it, to rally your voters against it, to urge everyone to call or write to oppose it, etc.  But, once again, accept that this is (usually) a normal policy dispute and not a matter of the survival of liberty.  Also be aware that if the other side wins the triple crown and you oppose its legislation, you will probably lose.  That does not mean that all is lost.  You may not be able to block the other side's legislative program altogether, but you may be able to blunt the most objectionable parts of it.  Just be careful how you spend your political capital.  What part of Obamacare did Republicans find most objectionable?  Two things, ultimately.  They ended up deciding the public option and the requirement that it cover end-of-life counseling.  And the Democrats did, ultimately, drop, these provisions.

What did the public find most objectionable?  Two things, ultimately.  First the high deductible, narrow network plans were not much use for people who do not use much healthcare.  Second, requiring that all insurance policies offer the same package meant that a lot of exiting policies were canceled.  It was Republicans' refusal to offer any cooperation to Obamas's executive overreach in offering some relief for people whose policies were cancelled.  If Republicans had made a realistic opposition, focusing on the harm to people whose policies would be cancelled, or shown a willingness to cooperate on this narrow issue, a lot of the resulting hardship might have been avoided.

Of course, Republicans might answer that the resulting hardship served them very well politically, which leads to the next point.

Sometimes you have to accept defeat and move on.

A Norman Ornstein article which, alas, I can no longer find, offers suggestions for what the losing party can do when legislation it opposed is enacted:
  • It can see the repeal the legislation.  To do so, it will need either to control the Presidency and both houses of Congress or a veto-proof majority in both houses.
  • It can seek to amend the legislation into an more acceptable form.  That might be doable without the triple crown or a veto-proof majority, but it will call for some bipartisan cooperation.
  • It can seek to minimize the perceived harm in implementation.
  • Or it can passively step back and leave implementation to the other party.
And, although Ornstein does not mention it, it can challenge the legislation as unconstitutional.  But in that case, it gets only one bite at the apple.  What is not acceptable is holding the budget and the debt ceiling hostage to force over legislation the other side considers unacceptable and the votes to block, or repeated, ever less plausible lawsuits to stop it, or outright sabotage.

Any country needs a certain stability of policy.  A country in which one party regularly nationalizes industry (say) and the other party denationalizes it, or one party builds a health insurance program and the other destroys it is going to be a ruin.

Offer a practical program that addresses real-world concerns.

I can see many Republicans responding with outrage.  This just means a one-way ratchet against them!  Doesn't it mean that Democrats will keep adding more and more programs, and regulations and regulatory agencies and Republicans can never repeal any of them?

To which I would answer, it may seem that way sometimes, but I don't think it is so simple. Republicans have had their share of victories that have stuck.  Our top marginal tax rate was 91% in the 1950's and 70% in the 1960's and '70's.  Ronald Reagan's major cuts brought it down only to 50%.  Our regulatory agencies once set all fares for trucks, trains, and airplanes.  European countries once had significant nationalized industry.  None of those seem at all likely to return.  So, no, you aren't stuck standing athwart history yelling stop. Sometimes you can win, and and make it stick.  Just not always.

What would I suggest for now?  I could see several possibilities.  Instead of denouncing all regulation as evil, how about focusing on which specific regulations on most damaging to small business and focus on repealing them?  

Are you frustrated that you lose voters as the country becomes more and more urban?  Then point out to those white, upscale professionals that one of the reasons housing prices in the city are so outrageous are all the land use regulations.  

Are you frustrated the black voters keep following the Democrats?  Then look seriously at Black Lives Matter and see some of its libertarian potential.  You are right that actual police killings of civilians are rare and almost always more complex than they appear at first sight.  But killings are the tip of the iceberg.  Much of the real frustration is with the whole practice of for-profit policing.  So point out that having more regulations than you can ever enforce invites a discriminatory enforcement and discuss the advantages of fewer regulations.  And attacking for-profit policing can be an effective way to starve the beast at a municipal level -- reducing fines undercuts city revenue for services.

Global warming is the biggest issue facing us today.  The fires on the West Coast and flooding on the Gulf Coast are signs of worse to come if we don't stop it.  I believe many conservatives are right in saying that liberals are using fighting global warming as an excuse to impose their own favored lifestyle.  But the alternative is not to say that global warming can't happen because your principles do not allow it, or that you would rather let the planet cook than accept any sort of government regulation of the economy.  The alternative is to find a way to fight global warming that is more congenial to conservative preferences.

This applies to our side, too.

Let's face it.  Our side does it, too.  Not so much in the corridors of power.  I haven't noticed Democrats creating any debt ceiling crises, and they have shown themselves willing to work with Donald Trump to offer economic relief, rather than hurting people for political advantage.

But our insistence in treating some things as absolutes allowing no compromise rather than normal policy disputes has caused its own problems.  Gay marriage is the obvious example.  We won on that.  Hurray!  But can we stop making gay marriage the sole marker of who is an is not a good person?  Can we stop treating anyone who ever opposed it as a social pariah?  And can we figure out some sort of compromise to allow people with genuine religious objection?  If you wouldn't for a Jewish or Muslim caterer to serve pork, if you wouldn't require a Muslim or Mormon caterer to serve alcohol, then neither should you require a caterer to serve a wedding that violates his/her religious convictions. There has got to be some reasonable accommodation that can be made.

And I won't even talk about the current insistence that gender is purely a state of mind completely unrelated to  biology, other than to say that if this view ever moves out of a few fashionable circles into the general public, expect a lot of resistance.  

Sunday, September 20, 2020

Restraint on Presidential Power and Restraint on Opposition

Make America Great Again

I generally like following Jennifer Rubin, anti-Trump conservative who is fast becoming a liberal.  But I will admit to a certain ambivalence about this column, a list of advice on how liberals and anti-Trump conservatives can find ground. 

Certainly I prefer it to the advice of more anti-anti-Trump types whose advice tends to be (1) stop criticizing Donald Trump and (2) adopt the Republican platform.  That is simply an invitation to surrender.

Rubin's advise is more useful and focuses on restoring procedural norms that I am entirely in favor of.  But I am troubled by the conceit, so common among never-Trump conservatives, that conservatives before Trump were opposed to out-of-control executive power, and that Obama's unilateral use of executive power was something unprecedented:

Until Trump came along, Republicans were horrified by sweeping executive orders, rule by administrative directive (e.g. modifying the Affordable Care Act without Congress), international executive agreements instead of treaties (e.g. the Joint Comprehensive Plan of Action) and executive-branch hubris in the face of congressional oversight (e.g. Operation Fast and Furious).

I, and I think most liberals, have trouble taking this seriously in light of actual, real world history of the Republican party.  Certainly William Barr and his history of extreme views of executive power have been part of the Republican party for a long time.  Antonin Scalia has been a longstanding champion of presidential authority from the bench.  To say nothing of George W. Bush, and his advisers, John Yoo and David Addington, whose theories of the "unitary executive"  essentially said that the President's power is absolute and cannot be constrained by law, so long as he says "national security" first.  Acknowledge this history, and maybe I will take your complaints about Obama's overreach seriously.  

Second, Obama's executive overreach has to be seen in the context of a Republican party determined to reject any sort of cooperation in favor of a determination to make him fail -- regardless of the consequences.  Any call for a President to respect the limits of executive authority has to be matched by a call to the opposing party to act within the appropriate limits of a loyal opposition.  So what about Rubin's examples?

I will confess to not being familiar with the in's and out's of Operation Fast and Furious.  But the following appears to apply: (1) the Obama Administration provided over 7,000 pages of documents to Congress, (2) Attorney General Eric Holder was held in contempt for claiming executive privilege for another 1,300 pages, (3) the contempt occurred in 2012 and was the Obama Administration's first invocation of executive privilege.  That being said, I do not know enough to evaluate the merits of the Obama Administration's overall position.

The modification of the Affordable Care Act is more straight forward.  Like all major, complex pieces of legislation, the ACA turned out to have problems, such as regulatory changes that cancelled existing policies and failure to mention subsidies in states that did not build exchanges.  Normally, problems like this can be ironed out by modifying the law.  Republicans in Congress, however, made perfectly clear that they were not going to correct any problems with the ACA, no matter how many people were hurt as a result.  In fact, they saw people being hurt as a feature, not a bug, because it would increase pressure to repeal the Act and were dead set against the simplest modification that might make it run more smoothly.  So Obama stretched the executive's regulatory powers to deal with these defects.  

As for entering international executive branch agreements, the reason is much the same.  The Senate was unwilling to ratify any treaty Obama entered into. In case of an impasse between the President and Senate on making treaties, there are at least three options.  If the Senate has specific objections to specific provisions in a treaty, by all means the President should seek to address these concerns.  More complex is a case in which the Senate thinks no treaty can ever be appropriate. 

I assume Rubin is speaking primarily about Obama's Joint Comprehensive Plan of Action (JCPOA) with Iran. There was a clear policy difference here.  Senate Republicans were opposed to any sort of diplomacy or agreement with Iran that stopped short of unconditional surrender on Iran's part and otherwise believed that negotiations and agreements had no legitimate place in our tool kit.  Obama, by contrast, believed that Iran's nuclear program was an intolerable threat, and that curbing it was essential, even of our other problems with Iran were not resolved. 

Cases like this are genuinely difficult, and I suppose one can make at least the argument that if the Senate says it will not approve any treaty whatever with a country, the President should obey and refrain from any attempt at making one.  On the other hand, the President is normally in charge of US foreign policy and normally has broad discretion to address what he sees as an intolerable danger.  And Rubin has no answer whatever as to what a President should do if the Senate makes clear that it will reject any treaty whatever that he enters into, just to deny him the win.  What is a President supposed to do in such a case, refrain from any diplomacy whatever?

Supreme Court Appointment and Obamacare


Various commentators have been gaming out the effects of a Supreme Court nomination on the election.  The obvious answer, so far as Roe v. Wade goes is that it will raise the stakes, and raise passions, mobilization, and turnout on both sides.  I do not pretend to know which side will benefit more.

But give the Democratic leadership credit, for once, with keen political sense.  They have chosen their message wisely.  They will avoid discussion of abortion, which is divisive, and focus on Obamacare, which is not.

That may be surprising, given how divisive Obamacare has been in the past, but currently the Supreme Court is facing a lawsuit seeking to strike down the entire law.  Consider the implications.  

Obamacare expanded Medicaid.  Pre-pandemic, about 10 million people had health insurance under the Medicaid expansion.  It also set up health insurance exchanges.  Pre-pandemic, about 10 million people bought health insurance on the exchanges. Mass layoffs during the pandemic have presumably raised both figures, but let us assume them for the time being.  Repeal the entire law, and both provisions immediately vanish.  That means the Supreme Court could strip 20 million people of their health insurance overnight!

But that is not what Democrats are focusing on.  Repeal will also remove all Obamacare's requirements that health insurance companies cannot deny coverage for pre-existing conditions.  Given the number of people with pre-existing conditions, or who know someone with a pre-existing condition, this is what Joe Biden called a BFD.

The practical upshot of all of this is that basically no one favors the wholesale repeal of Obamacare. And yet their is a lawsuit to do just that schedules for hearing in front of the Supreme Court shortly after the election.  And Donald Trump has ordered the Department of Justice to argue in favor of repeal, an action that one Republican spokesman described as making as much political sense as diving headfirst into a wood chipper.  The Supreme Court did its best to keep Donald Trump away from the wood chipper by postponing argument until after the election.  But sometimes the unpredictable happens, and suddenly the question of whether a Trump appointee would strike down the protections of Obamacare has become a major election issue.

That raises two other questions.

One is what the Supreme Court would do. There is more or less unanimous agreement, even among people who pressed for repeal in the past, that the argument lacks legal merit.  But when has that ever stopped a determined Supreme Court?  I am reasonably confident that if Trump is reelected, a Republican majority on the Supreme Court will save him from himself and uphold the law.  The country will be exposed to a bunch of outraged tweets, but no other harm will be done.  

If a Democrat is in the White House, I can see a Republican Supreme Court striking down Obamacare. Underlying whatever fancy justifications the Supreme Court can come up with, the real reasons will be simple.  First, they will consider the disastrous fallout to be suitable punishment to Democrats for passing such a monstrosity.  Second, they will trust that Democrats will be unable to come up with a replacement fast enough to prevent disaster and will count on the public to blame the party in the White House for the disaster and vote accordingly.  This may be a miscalculation.  If the Supreme Court is obviously, immediately at fault for the mess, and if the Democrats make skilled use of the bully pulpit (a dubious bet, I realize), the Supreme Court just might be blamed, and suddenly court packing will not seem so radical after all.

The second question is why Donald Trump is doing something that makes as much sense as diving head first into a wood chipper.  So far as I can tell, the answer is simple ignorance.  Republicans attempted to find a replacement for Obamacare, failed, and realized they are not able to do health care policy.  They decided that they were better off leaving well enough (or bad enough) alone.  Donald Trump seems to be the only person in the country not to notice what happened.  He keeps saying Republicans have a great plan that will deliver great care at a fraction of the cost.  Maybe he actually believes it.  Or maybe he believes that if he just says so loud enough, no one will notice the 20 million people who lose their health insurance and the countless people who lose coverage for pre-existing conditions.  

After all, his base has managed not to notice a pandemic that has infected over 6 million Americans and killed some 200,000.

What I Fear Most a Trump Appointment

Ruth Bader Ginsburg
 To be clear, what I fear most from a Trump appointment is not the repeal of Roe v. Wade.  In fact, I am at odds with almost all of liberal orthodoxy here, but I believe that Roe was a mistake from the start.  There is not one clause anywhere in the Constitution that says anything even remotely related to abortion.  While I favor a broad interpretation of the actual language of the Constitution, I do not favor making up rights out of whole cloth.  I do not favor substantive due process, and I see Roe as a particularly dangerous decision for exhuming the corpse of that long-buried doctrine and creating a zombie.*

The greatest danger of substantive due process is that there is no way of determining what is and is not a substantive due process right.  So far as I can tell, the Supreme Court goes about it one of two ways.  One is to look to rights recognized by common law.  That has the advantage of offering at least some guidance, but the disadvantage of tying us to a centuries old set of rules, many of which were archaic even when the Constitution was written.  The other is to attempt to discern certain fundamental rights.  But that simply means letting judges invent rights out of whole cloth.  If one judge thinks an abortion ban violates a fundamental right, what is to stop another judge from deciding that labor protective legislation violates the fundamental right of freedom of contract?

Abortion, like any other topic not expressly addressed in the Constitution, should be left to the ordinary legislative process.  

Furthermore, the Supreme Court has chipped away at Roe so far at to make it almost meaningless -- despite the decision that remains on the books, many states have passed legislation that makes abortion almost impossible to obtain.  Some states have truly extreme measures on the books -- measures that would ban IUD's, hormonal contraceptives, and in vitro fertilization.  State legislatures are able to pass such legislation because they know it will be struck down.  If states actually had to deal with the consequences of their more extreme laws, somehow they would find their principles not quite so rigid as they thought.

So I am fine with the reversal of Roe v. Wade.  It is other things I fear.**

I fear an extreme economic royalist Supreme Court striking down almost any regulation of economic activity as unconstitutional.

I fear a radically partisan Supreme Court, upholding the most extreme claims of executive power under a Republican President, but on terms so narrow and technical as to allow them to deny even the most modest claims of a Democrat.

And I fear the overturn of Obamacare.  


*I hope to post more on that at a later date.
**One thing I don't fear is reversal of most of the Supreme Court's criminal procedure provisions.  Conservative justices appear to take the rights of the accused seriously.  I suppose in a second Trump term that might change.

What Does Alexis de Tocqueville Tell us About Ruth Bader Ginsburg?


So, what do we say in the face of this new development -- the passing of Ruth Bader Ginsburg?  Clearly it has raised the stakes of the election, as if those stakes were not high enough already.  Donald Trump won the last election in large part because enough people thought it worth the risk of such an unorthodox candidate to have a Republican appoint the next Justice to the Supreme Court.

I would turn for guidance, as I am wont to do, to Alexis de Tocqueville's Democracy in America.  Tocqueville warns that making the chief executive elective invites regular crisis:

Whatever the prerogatives of the executive power may be, the period which immediately precedes an election and the moment of its duration must always be considered as a national crisis, which is perilous in proportion to the internal embarrassments and the external dangers of the country. Few of the nations of Europe could escape the calamities of anarchy or of conquest every time they might have to elect a new sovereign. In America society is so constituted that it can stand without assistance upon its own basis; nothing is to be feared from the pressure of external dangers, and the election of the President is a cause of agitation, but not of ruin.  

 What form does this crisis take?

For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial passions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares of self- defence. He no longer governs for the interest of the State, but for that of his re-election; he does homage to the majority, and instead of checking its passions, as his duty commands him to do, he frequently courts its worst caprices. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps, each of which assumes the name of its favorite candidate; the whole nation glows with feverish excitement; the election is the daily theme of the public papers, the subject of private conversation, the end of every thought and every action, the sole interest of the present.

There is simply no denying that this is a danger of elective government.  Tocqueville goes on to reassure us that once the election is over, everything calms down to the point that one wonders what the excitement was about.  The commentator in my translation remarks that this is not always true, notably in the case of Lincoln.  (Tocqueville wrote in the early 1830's, before slavery became the great issue of the day).  

Tocqueville also notes that the crisis of elections is reduced by making them frequent because less is at stake:

When elections recur at long intervals the State is exposed to violent agitation every time they take place. Parties exert themselves to the utmost in order to gain a prize which is so rarely within their reach; and as the evil is almost irremediable for the candidates who fail, the consequences of their disappointed ambition may prove most disastrous; if, on the other hand, the legal struggle can be repeated within a short space of time, the defeated parties take patience. When elections occur frequently, their recurrence keeps society in a perpetual state of feverish excitement, and imparts a continual instability to public affairs. Thus, on the one hand the State is exposed to the perils of a revolution, on the other to perpetual mutability; the former system threatens the very existence of the Government, the latter is an obstacle to all steady and consistent policy. The Americans have preferred the second of these evils to the first; but they were led to this conclusion by their instinct much more than by their reason; for a taste for variety is one of the characteristic passions of democracy.

Tocqueville goes on to deplore the mutability of U.S. laws and lack of steady administration.   That is no longer our problem.  In these days of extreme polarization and multiple veto points, our problem is just the opposite -- the system has become so rigid that it is almost impossible to pass important legislation of any kind.  

And we have moved closer to the perils of infrequent elections, i.e., people no longer believe that if they lose the election, they can live to fight another day.  One of the major reasons is that lifetime federal court appointments are at stake.  Parties may "exert themselves to the utmost in order to gain a prize which is so rarely within their reach" -- not the Presidency, but a majority on the Supreme Court.  And the loss of that majority may seem "almost irremediable."

Today, Democrats are playing with two options -- expanding the court to eleven members, or limiting Supreme Court justices to long (typically 16 years) and staggered, but fixed terms.  

The former option is clearly constitutional, but clearly seen as radical. The last time anyone attempted it was Franklin Delano Roosevelt, who proposed to expand the Supreme Court from nine members to fifteen.  He met with immediate, intense pushback and backed down.  Maybe such an expansion would been seen as legitimate this time, and maybe not.  The obvious weakness, though, is that it invites retaliation.  If Democrats can raise the number of Supreme Court Justices to eleven, then why won't Republicans, next time they are in power, raise the number to thirteen.  This invites an endless cycle.

The latter option is more radical by far and constitutionally dubious, but offers the possibility of turning down the temperature.  The Constitution says, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."  Does this require Supreme Court justices to sit on the bench for life (or at least until death, retirement, resignation, or impeachment)?  Or does it merely require Supreme Court justices to hold some sort of federal judgeship for life, and allow demotion to, say, an Court of Appeals?  I am inclined to think this would have to go before the Supreme Court, which would have an obvious conflict of interest in deciding it.  There would also be the question of the status of current Justices, and how to stagger appointments.  Nonetheless, if we knew each President would have the opportunity to appoint a fixed number of judges to fixed terms, it would lower the stakes in elections.  It would also remove the incentive to appoint the youngest judges feasible, and for judges to leave only in the term of a President or their party, or in a coffin.