Kavanaugh

by Henry on October 7, 2018

I wrote a long Twitter thread on Kavanaugh a week ago, the first time that I thought he was going to get in. This piece by Matt Yglesias covers much of the same ground that I did, but better. This Boston Review article by Sam Moyn says what I wanted to say about courts and democracy, but is sharper. Still, there’s one idea in neither of them that I think is worth developing.

That is Kavanaugh’s role as a frame. The sociology and political science of social movements talks a lot about how movements on the street need frames – simple representations that provide a common focus for the very different people with different interests that make up a movement. Kavanaugh – angry, distorted, shouting face and all – provides the most concrete imaginable metaphor for what the Republican party has become, and for the white conservative elite that is trying to cripple American democracy. The ways in which conservative judges are undermining American democracy are apparently a-political, and hard for many people to focus on and understand. Kavanaugh represents and personifies this silent judicial revolution. And he does so in an especially visceral way for the women who are the backbone of the social and political movement that has to be at the heart of any hope for political change in the US. He can – and should be – hung like a rotting albatross around the neck of the Republican party.

Democratizing the Supreme Court is a long term project. It is going to require a fundamental reshaping of the American legal elite – focusing on the cosy relationship between top law schools and the judiciary, and the ways in which the Federalist Society has finessed the ambiguities between debating ideas, providing a pipeline for judges, and vetting Supreme Court justices. It will also require politics on the streets. The circumstances of Kavanaugh’s elevation have temporarily raised the costs of overly comfortable relationships in the legal world. Keeping them raised – and turning them into a broader democratic agenda – will require active and continued mobilization. Pressing for investigations (should the Democrats win in November) of the role that Whelan, Leonard Leo of the Federalist Society and others seem to have played behind the scenes in trying to discredit accusations. Framing the court and every rotten decision it makes as the Kavanaugh Court. And protesting in every way possible to raise the costs for the politicians who voted for Kavanaugh, and where possible to replace them.

None of this changes the fact that it is very, very bad that Kavanaugh has been confirmed. But it does mean that Kavanaugh can, despite himself, become a political engine for change, in ways that would have been impossible if he had been confirmed without controversy, as seemed likely to happen just a few weeks ago.

{ 100 comments }

1

Kiwanda 10.07.18 at 12:40 am

I hope the OP is correct about the positive aspects of the politics, although I had similar thoughts about Bush v. Gore.

I don’t know if judges are often picked from among district attorneys, but regardless it would improve the justice system to elect better DAs, like Larry Krasner. (Only AK, CT, DC, and NJ have appointed DAs, all the rest of the states elect them.)

2

Ben Vernia 10.07.18 at 12:49 am

Yglesias’ column was perhaps the worst he’s ever written. There is no silver lining to Kavanaugh’s elevation. The notion that things getting worse is necessary or helpful to making them better is about the stupidest thing I’ve ever heard.

3

alfredlordbleep 10.07.18 at 12:52 am

from SAMUEL MOYN Boston Review:
Instead of terrorizing the court into moving through various court-packing schemes, it is a much better and bolder choice for the left to stand up for reforms that will take the last word from it. Jurisdiction-stripping statutes, tools to bar the judiciary from considering cases on certain topics such as abortion or affirmative action, are not clearly unconstitutional even under current legal doctrine. Indeed, the right has used such statutes for years to limit access to courts for immigrants and prisoners.

Court-packing as CT readers undoubtedly have noted is getting much play recently. (JH’s CT thread a while back for one. There Glen Tomkins and I moved on to court-stripping on which I found the wiki entry less than definitive).

Is there expert opinion here and now to guide us? (Or just to tease us)

4

Jerry Vinokurov 10.07.18 at 1:08 am

Is there expert opinion here and now to guide us? (Or just to tease us)

Not an expert, but there’s not much guidance needed. You need a bare majority in both chambers of Congress and a presidential signature to expand the size of the court. You can even pass legislation to curtail what kinds of cases it can hear, all with bare majorities. There’s no mystery to how to do this; the only problem is whether you can get Democrats to actually go through with it if they get unified control of government.

Lots to say, but I would hope that at least one consequence of all this would be for legal academia to take a long hard look at its own history of collaboration with the legal terrorists at the Federal Society. Instead of forming countervailing organizations and treating originalism as the risible garbage that it so obviously is, people like Jack Balkin continued to take this nonsense as a serious attempt at truth-seeking and made no small contribution to its general respectability.

5

ph 10.07.18 at 1:20 am

“Smash their faces through a plate glass window, make them live in fear.” That’s one of my favorite (paraphrased) quotes from the JournOlist debacle.

Those opposed to the administration are understandably frustrated. So, let’s put BK “e can – and should be – hung like a rotting albatross around the neck of the Republican party” down to journalistic excess. I read both the linked pieces and each appears cobbled together rather than crafted – knocked out instead of deliberative and thoughtful.

Unfortunately, this OP reads like a knee-jerk polemic (perhaps your intention) with the crowning goal being to “Willie Horton” the GOP. This I fine as a rallying cry, but unfortunately ‘more of the same’ losing strategy that got us here in the first place, and frankly lazy.

I watched the ABC coverage of election night 2016 last night (true) to revisit the ‘strategy’ of the Dems discussed at the beginning of the evening, and then in the early morning as reality dawned.

Only after the outcome was no longer in question did the bubble-heads utter the fateful words: “Clinton’s – relentlessly negative campaign. All she did was try to demonize her opponent. She had no message of her own.” Sound familiar?

Trump popped to 51 percent, his popularity among some African-Americans has jumped ten points to 35 percent. Changing the rules, talks of changing the constitution, and the status of the SC because Dems can’t find a positive message, or a positive candidate, or persuade the candidate to recognize and reach out to voters the Democratic party abandoned, reeks of defeatism and worse.

Hanging anything around anyone’s neck for any reason is a revolting idea. Others, of course, will try to do just that. Let them. We need better ideas and better policies from America’s academics, not poisonous rhetoric. Get out of the mud. Leave the pig alone.

The pig’s winning.

6

ph 10.07.18 at 1:37 am

Thanks, Henry. Here’s the missing link, which some may claim is a hoax!

https://www.usatoday.com/story/news/politics/onpolitics/2018/08/16/trump-approval-rating-african-americans-rasmussen-poll/1013212002/

Don’t lose your sense of humor, please.

Ciao!

7

Matt 10.07.18 at 2:08 am

his popularity among some African-Americans has jumped ten points to 35 percent.

No it hasn’t: https://www.newsweek.com/donald-trump-approval-rating-black-americans-1078598

You’ll need to try harder than that. (Even the first claim is highly misleading, but at least it’s not just absolutely false, like this one.)

8

engels 10.07.18 at 2:49 am

If privilege pipelines and overly comfortable relationships among the power elite are the problem I’m not sure Yglesias is much better (afaict his prep school outranks Kavanaugh’s).

9

likbez 10.07.18 at 2:59 am

Two quotes:

https://www.nytimes.com/2018/10/05/us/politics/susan-collins-speech-brett-kavanaugh.html

Some of the allegations levied against Judge Kavanaugh illustrate why the presumption of innocence is so important. I am thinking in particular not of the allegations raised by Professor Ford, but of the allegation that, when he was a teenager, Judge Kavanaugh drugged multiple girls and used their weakened state to facilitate gang rape.

This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others. That such an allegation can find its way into the Supreme Court confirmation process is a stark reminder about why the presumption of innocence is so ingrained in our American consciousness.

… … …
The facts presented do not mean that Professor Ford was not sexually assaulted that night – or at some other time – but they do lead me to conclude that the allegations fail to meet the “more likely than not” standard. Therefore, I do not believe that these charges can fairly prevent Judge Kavanaugh from serving on the Court.

-Sen. Susan Collins

Supreme
Court nominee Brett Kavanaugh clears crucial hurdle to confirmation
By Eric London, World Socialist Web Site; 6 October 2018

With Kavanaugh on the court, the composition of the body will reflect the domination of the financial oligarchy over the political process like never before. Four of the nine justices will have been nominated by presidents who lost the popular vote (George W. Bush and Donald Trump). Including the two nominated by Clinton, six of the justices will have been nominated by presidents who received less than 50 percent of votes.
The Democratic Party opposed Kavanaugh not because of his political record as a supporter of torture, deportation, war and attacks on the rights of the working class, but based on uncorroborated, 36-year-old allegations of sexual assault that became the sole focus of the confirmation process.

From the start, the Democrats’ opposition to Kavanaugh was never intended to block his nomination. The Democrats fundamentally agree with Kavanaugh’s right-wing views. They offer no principled opposition to his hostility to the right to abortion, which the Democratic Party has abandoned as a political issue.

In an editorial board statement Friday, the New York Times signaled that the Democratic Party’s opposition to Kavanaugh was not based on political differences with Trump’s nominee. The newspaper even encouraged Trump to replace Kavanaugh with an equally reactionary justice, as long as the person nominated had not been accused of assault:

“President Trump has no shortage of highly qualified, very conservative candidates to choose from, if he will look beyond this first, deeply compromised choice,” the Times wrote.

The right-wing character of the Democratic Party’s opposition to Kavanaugh was hinted at by Republican Senator Susan Collins, who spoke from the Senate floor Friday afternoon to defend her decision to vote for Kavanaugh. At the appellate level, Collins said, Kavanaugh had a voting record similar to that of Merrick Garland, whom Barack Obama and the Democratic Party attempted to elevate to the Supreme Court in 2016. Garland’s nomination was blocked by the Republicans.

Garland and Kavanaugh served together on the Court of Appeals for the District of Columbia, Collins explained, and voted together in 93 percent of cases. They joined one another’s opinions 96 percent of the time. From 2006, one of the two judges dissented from an opinion written by the other only once.

In the end, each party has gotten what it wanted out of the process. The Republicans secured the confirmation of their nominee, while the Democrats succeeded in creating a new “narrative” leading up to the midterm elections, which are a month away.

10

nikbez 10.07.18 at 3:22 am

ph 10.07.18 at 1:20 am (5)

Changing the rules, talks of changing the constitution, and the status of the SC because Dems can’t find a positive message, or a positive candidate, or persuade the candidate to recognize and reach out to voters the Democratic party abandoned, reeks of defeatism and worse.

Exactly.

Clinton neoliberals (aka soft neoliberals) still control the Democratic Party but no longer can attract working-class voters. That’s why they try “identity wedge” strategy trying to compensate their loss with the rag tag minority groups.

Their imperial jingoism only makes the situation worse. Large swaths of the USA population, including lower middle class are tired of foreign wars and sliding standard of living. They see exorbitant military expenses as one of the causes of their troubles.

That’s why Hillary got a middle finger from several social groups which previously supported Democrats. And that’s why midterm might be interesting to watch as there is no political party that represents working class and lower middle class in the USA.

“Lesser evil” mantra stops working when people are really angry at the ruling neoliberal elite.

As Slavoj Žižek aptly said ” To paraphrase Stalin: They are both worse.” ( http://inthesetimes.com/features/zizek_clinton_trump_lesser_evil.html _

11

LFC 10.07.18 at 3:30 am

The OP speaks of “democratizing the Supreme Court,” but the Supreme Court is designed to be an anti-democratic institution: that’s a large part of its whole point. Even when the Supreme Court acts to strengthen democracy, as it has sometimes done in the past (cf. esp. the Warren Court), it has done so in the name of interpreting a Constitution (and Bill of Rights as part of that Constitution) that is intended, in considerable part, to put sand in the gears of majoritarianism and hence of democracy. (Even the post-Civil War amendments, e.g. the 14th Amendment, are framed in terms of protecting individual rights against implicitly majoritarian infringement: no state in the Union “shall…deny to any person within its jurisdiction the equal protection of the laws.” Yes, you can extend this, as Supreme Court has done, to refer to groups or classes of persons who may warrant some special protection, but the point still stands.)

In short, I don’t know exactly what “democratizing the Supreme Court” means. If it means changing or broadening the pools from which Justices are drawn, fine, but the Court will remain structurally an anti-democratic institution, whether the people who sit on it are Federalist Society members or members of the National Lawyers Guild, and regardless of what schools their law degrees come from. And regardless of their jurisprudential and ideological leanings.

This brings me, in the rambling character of comments, to Samuel Moyn’s piece in Boston Review (which I read quickly; might revise my opinion on a more leisurely reading). It would have been stronger, istm, if he had at least acknowledged the role that some federal courts (including the Warren Court itself) played in helping advance the cause of civil rights in the ’50s and ’60s. Perhaps Moyn thinks that the aspect of the multi-pronged civil rights movement that involved litigation was a mistake. It might have been a mistake, but that’s not obvious and it requires an argument.

Personally I would be a bit hesitant to strip SCOTUS of jurisdiction to hear certain kinds of cases, as Moyn suggests, tempting as it might be. Jurisdiction stripping, especially if it goes beyond certain hot-button issues and drastically reduces the kinds and number of cases the Court can hear, seems to presuppose that, because of its anti-democratic character, the Court cannot by definition ever play a progressive role in the U.S. system irrespective of who the Justices are or what their views are. That’s a defensible position, I suppose, and it might be correct, but it needs to be defended and its implications considered, not simply assumed as an obvious position that everyone on the progressive or left side of the spectrum should adopt.

All that said, I’m sympathetic to the view that progressives in the past have relied too much on the courts to do things that they should have done through popular mobilization and through legislation. (Moyn argues that conservatives have used the courts more, which in recent years at least is true.) But these are complicated questions (it’s a platitude, yes, but it also happens to be correct), and I would have expected a historian of Moyn’s caliber, even in the short space given him by Boston Review, to have more fully noted some of the complexities.

12

Chetan Murthy 10.07.18 at 4:25 am

Only after the outcome was no longer in question did the bubble-heads utter the fateful words: “Clinton’s – relentlessly negative campaign. All she did was try to demonize her opponent. She had no message of her own.” Sound familiar?

I’m relieved that there are others in this commentariat who recognize what a waste of protoplasm this “ph” is. Our kind hosts are worth infinitely more, than that I should burden them with my thoughts on “ph”. And at the end of the day, “ph” is just a symptom.

Ah, well.

P.S. I’m not going to even -pretend- to respond to this Trumpenfelcher’s pretend-to-be-substantive comments. You don’t pretend that a bullshit-ter is arguing in good faith, b/c that’s a mug’s game.

13

Murc 10.07.18 at 4:40 am

Democratizing the Supreme Court is a long term project.

A lot of people have been talking like this, quite understandably so. Paul Campos over at LGM had a post on this subject recently as well.

I would submit that it both is wrong, and is misguided. We absolutely don’t want to democratize the courts. Elected judges are an abomination; they tend to produce terrible results both at practical and jurisprudential levels. The current problem with the Supreme Court isn’t that it needs to be more democratic; its that the institutions that staff it have lost a lot of their democratic legitimacy, and thus, as a second-order effect, the court itself becomes pretty bad.

Literally every single Republican-appointed justice sitting on the court was either placed there by a president who did not democratically win the office, or is Clarence Thomas, whose confirmation process was a farce and a sham. Furthermore, it has reached the point where placing someone ideologically congenial on the Supreme Court requires control of the Senate, a relentlessly undemocratic institution in which you can assemble a majority in with something like the representatives of twenty percent of the population, and in practical terms has often assembles a majority with between thirty and forty-five percent.

This is the problem, right here. If that can be addressed, the court problem will sort itself out. Without addressing this (and I admittedly have few ideas here) the problem with the courts can’t be addressed directly, because minority not-even-plurality governments will trick, stunt, or steal their way back into power and govern illegitimately.

14

Nick Caldwell 10.07.18 at 5:05 am

“ph” is one of the more subtle Concern Trolls I’ve seen, I’ll give them that.

Reactionaries need to be more afraid that their relentlessly tightening grip on every single lever of power will lead inexorably to the most bloodthirsty correction in human history. It’s not something anyone would wish for, but what’s the realistic alternative? American elites are just too stupid to enact the kind of sophisticated authoritarian controls that might stave off total collapse.

15

bad Jim 10.07.18 at 5:29 am

One of my brothers had a pet pig. It was pleasant enough, though a bit on the shy side. It’s not easy to pet a pig: bristles rather than fur. Okay, easier than my sister-in-law’s tortoise, who can exhibit attention but not affection as far as I can tell. I’m pretty confident that he recognizes me, but lineaments of gratified desire are not in evidence.

The pig’s ears were soft, and he didn’t much mind our stroking them.

16

Raven 10.07.18 at 5:43 am

Why tamper with the size of the Court? Impeach Kavanaugh himself, as his lies to Congress are nailed down and proved for the record, once the balance of seats changes.

17

Gareth Wilson 10.07.18 at 7:55 am

Here’s some jurisdiction-stripping that the Democrats might like: “All laws approved by the House, Senate, and President are not subject to review by the Supreme Court.” They can keep busy with state laws, executive orders, and the occasional freaky veto override.

18

Hidari 10.07.18 at 8:36 am

‘As …Dahlia Lithwick wrote in 2016, the Supreme Court “relies on us to believe that it’s magic. The power and legitimacy of the whole institution depend upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be.” Remarkably, throughout most of American history, this magic trick has worked. It came closest to collapse after 2000’s Bush v. Gore, when five Republican appointees justices indefensibly elevated their preferred candidate to the presidency. At that point, liberals could have declared war on the court, challenging the central role it had assumed in American politics.

They didn’t, for two reasons: Sandra Day O’Connor and Anthony Kennedy. The two swing justices handed the left a stream of victories following Bush v. Gore, upholding affirmative action, affirming campaign finance restrictions, strengthening Roe v. Wade, striking down sodomy bans, and securing the rights of Guantanamo detainees. …..

Kavanaugh is different in all respects. He will drag the court far to the right…

But what happens when Democrats take back the legislative and executive branches? What if Democrats pass Medicare for All, and the Supreme Court strikes it down, with Kavanaugh casting the decisive fifth vote? It’s not hard to envision Democrats marching in the streets, demanding that the president and Congress ignore the ruling. And what if they do? What happens if the Department of Health and Human Services just … implements the law anyway? It’s easy to envision the presidential statement: As the chief executive, it is my duty to enact this legislation, passed through the democratic process, and to reject the illegitimate ruling of Donald Trump’s Supreme Court. The federal government, acting on orders of the president, opens enrollment, and Congress appropriates the funds as planned. What can the Supreme Court do? Send its tiny police force to storm the White House?

Or imagine if the court abolishes affirmative action, and some state—say, New Jersey—refuses to comply. Or what if the court strikes down California’s independent redistricting commission, granting state legislators untrammeled ability to gerrymander congressional districts, and the governor insists on preserving it? The same goes for all manner of progressive reforms that could be on Kavanaugh’s chopping block, such as minimum wage laws and public financing of elections. Blue states may be pressured to disregard his decisions. And the president could decline to compel them to follow the high court’s rulings.’

https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-constitutional-crisis.html

19

Nigel 10.07.18 at 10:00 am

The pig winning is always framed as his opponents failing rather than him and his supporters -you – succeeding in getting what they want, because they -you- want Trump in power and they want him to do what he is doing. It’s the ‘look what you made us do now shut up or we’ll do it more’ approach, and it isn’t an anomaly, it’s the culmination of long iterations over several election cycles.

20

Nigel 10.07.18 at 10:01 am

Kavanaugh the musical is going to be the dark mirror image of Hamilton.

21

Layman 10.07.18 at 12:09 pm

A lot is being said about court-packing. I’m not necessarily opposed to it, but I guess I don’t really see how it will yield any benefits. If it is easy to pack the Court – just win the White House and a bare majority in both houses – then it is just as easy for the Republicans to do it as it is for the Democrats. In that case, how does it change anything? The Dems add a couple of Justices to shift the balance, then the Republicans do, then the Dems do, and so on. We get a big court, but what else do we get?

22

Donald 10.07.18 at 1:02 pm

“We get a big court, but what else do we get?”

We get a situation that can change every four to eight years, rather than one locked in place for decades. I don’t think it is an ideal solution. Maybe term limits would be better— I don’t know.

23

Dipper 10.07.18 at 1:36 pm

Wouldn’t it be better/fairer/less prone to partisanship to choose Supreme Court Judges from the level below by drawing lots?

24

Roger Gathmann 10.07.18 at 2:19 pm

I don’t see how democratizing the Court can precede democratizing the legislature. We need to radically reformat the Senate. The house, gerrymandered as it is, still has good bone structure. The Senate, though, is an appalling relic of the slavemaster past. Myself, I would like to see the Senate reshaped from its current states-based form to one of 100 districts, each containing, roughly a population of 6 million people. Thus, from Maine through Vermont, we would carve out one Senate seat. We could break Massachussetts and Rhode Island up and find a couple more, and so on. Cookie cutter the map, make Senators represent an equal number of constituents, and cut out the bullshit. Or we could just abolish the Senate. In any case, it is a horrendous branch and needs lopping.

25

bob mcmanus 10.07.18 at 2:27 pm

control of the Senate, a relentlessly undemocratic institution

1) I could argue about the “undemocratic part,” which I think is contingent and path-dependent. I can’t understand the arguments Democrats seem to make that it is God’s Will or the natural way that Democrats have to live in metropoles on the coasts. There are sociological reasons and conditions for urbanisation and geographical polarizations, but mostly internal geographical distributions derive from national policies, from low interest rates fueling real estate and equity speculation, for instance. I will not accept the Senate or Electoral College as intrinsically bad for progressives until a few million people move from Blue States to Red States and flip the Senate.

2) In any case, because of Democratic policy decisions, Republicans probably partially or wholly control at least 35 Statehouses and can elect a clear majority of Senators, and more likely 55-60 Senators. Indefinitely. This, along with SCOTUS all the judges, districts and circuits also, gives Republicans two nearly unassailable veto points. For decades. Under current pop distributions, the 51-56st Democratic Senator would be a Heitkamp or Manchin, if we ever got there.

3) There will be no national progressive initiatives or advances for a long long time. At all. Forget it. Electoral College reform, court-packing, Medicare-for-all, Warren’s program..forget it all.

4) There is no amount of organizing that can counter the pop distributions, nor will ideologies change much. Colorado and Nevada are now purple because progressives moved there.

5) There are counterforces. Pop distribution will overcome gerrymandering very soon. Texas and Florida should flip at worst purple by 2020. Big prizes, this should give Democrats pretty clear control of the House of Representatives, and a much better than average chance at the Presidency. I expect the pattern for the next decades to be a progressive House, a centrist President, a conservative Senate, and a reactionary judiciary.

6) Other wildcard countervails include global disruption and climate change.

Republicans (and Democrats) have made America a safe place for oligarchs. I expect the global cosmopolitan rich to continue to buy high-end real estate and educate their children here. As conditions grow worse overseas, more will come. Maybe big cities. maybe no, but the courtier class on the coasts that services the global rich (FIRE, law, culture, health) will continue to alienate itself from the center while growing ever richer.

Climate Change will, I think, cause internal migrations. I will be watching Houston, the Carolinas, California to see if the natural disasters generate internal migrations. Irregardless, this is coming, most likely an exodus from the coasts and desert areas. To where? It is important to predict this.

Republicans, I am guessing, think it is smart right now to get political control of the refuge areas away from the coasts.

With 35, Republicans are close. I expect the next six years of Trumpism (Trump will beat Gillibrand, Booker, or Patrick in a landslide) to accelerate the “Big Sort” and Koch to get enough state legislatures to call a Constitutional Constitution and pass balanced-budget and super-majorities-for-taxation.

I also expect a “Paris Commune” event when say SF attempts to secede to protect choice or gay rights and the Right to smash them with extreme prejudice.

26

engels 10.07.18 at 3:06 pm

I agree with LFC that the idea of ‘democratising’ the Supreme Court doesn’t make a whole lot of sense (unless you want key cases decided by plebiscite or something).

27

Whirrlaway 10.07.18 at 3:33 pm

You all get that the R’s are now in position to rule on the legitimacy of particular results next month, right? And you remember that it worked in 2000, right? When the new millennium hit the asphalt, as it were.

I mean, “reform”.

28

Collin Street 10.07.18 at 8:42 pm

The house, gerrymandered as it is, still has good bone structure.

Eh, not really. It remains a single-member fptp system, which is pretty agricultural as legislative systems go, and not hugely a good match to a culture that is politically and culturally diverse and doesn’t really accept the idea of apoliticism; some things you need to contact “your” representative for, and fptp means that for a hefty proportion of the population it’ll be someone from a different political faction and the cultural issues with apoliticsm means you can’t rely on a cross-party representative to work to reflect your actions.

This is why they abolished the single-member stormont parliament and replaced it with stv proportional. Also why they use STV so much in ireland.

Also, problems with the districting mechanism. Having states determine their representation mechanism is problematic, with hysterisis issues; it’s pretty likely that the “original intent” was to have the federal government regulating its own elections with the constitutional text provisions merely transitional.

[the problems with the senate basically boil down to the post-civil-war establishments of state boundaries: essentially, “nobody needs two dakotas”. The actual structure and culture are apart from that fine… although abolishing half the square states is probably incrementally harder than changing the structure of the

29

anonguy 10.07.18 at 9:27 pm

#17 Gareth,
Be careful what you wish for. There is nothing to stop the Republicans from doing just that except for …

Everyone, please, register to vote. Make sure your families and friends are also registered. Then make sure they all vote.

We can’t get back the White House until 2021. ( Yes I know that man in the White House can be impeached. Finding 67 Senators to convict him is almost impossible )

But we can take back the House and the Senate. With luck both. Most likely just the House. But that should help us curb the worst abuses.

30

Bernard Yomtov 10.07.18 at 11:39 pm

None of this changes the fact that it is very, very bad that Kavanaugh has been confirmed. But it does mean that Kavanaugh can, despite himself, become a political engine for change, in ways that would have been impossible if he had been confirmed without controversy, as seemed likely to happen just a few weeks ago.

This seems contradictory to me. If it hadn’t been Kavanaugh it would have been an ideologically equivalent nominee, but a blander one, with less baggage, hence less of an “engine for change.” The effect on court decisions would be no different.

So maybe the Kavanaugh appointment bites the Republicans in the ass.

31

KC 10.08.18 at 12:53 am

Another point I would add that it is a mistake to see democracy exclusively in procedural terms. We ought to go back to the idea of democracy as government by public discussion.

I often think that the neglect of black rights in America rests on the false legitimacy that procedural democracy confers. To me, the best test for a legitimate democracy is how the country treats its marginalised residents (including foreigners). Elections, while important, is neither necessary nor sufficient. Even authoritarian governments that pay close attention to the needs of its citizens have greater legitimacy than a nominally democratic government that neglect the wellbeing of its marginalised residents.

St the global level, our failure to effectively address the refugee crisis (leaving the burden of looking after refugees to low income countries that themselves are vulnerable) is a failure of global democracy.

32

Faustusnotes 10.08.18 at 1:30 am

I think whirrlaway gets at the key issue. This is why Trump has started talking about Chinese election interference.

33

likbez 10.08.18 at 6:24 am

I think the US society is entering a deep, sustained political crisis and it is unclear what can bring us back from it other then the collapse, USSR-style. The USA slide into corporate socialism (which might be viewed as a flavor of neofascism) can’t be disputed.

Looks like all democracies are unstable and prone to self-destruction. In modern America, the elite do not care about lower 80% of the population, and is over-engaged in cynical identity politics, race and gender-mongering. Anything to win votes.

MSM is still cheering on military misadventures that kill thousands of Americans, impoverish millions, and cost trillions. Congress looks even worse. Republican House leader Paul Ryan looks like 100% pure bought-and-paid-for tool of multinational corporations…

The scary thing for me is that the USA national problems are somewhat similar to the ones that the USSR experienced before the collapse. At least the level of degeneration of political elite of both parties (which in reality is a single party) is.

The only positive things is that there is viable alternative to neoliberalism on the horizon. But that does not mean that we can’t experience 1930th on a new level again. Now several European countries such as Poland and Ukraine are already ruled by far right nationalist parties. Brazil is probably the next. So this or military rule in the USA is not out of question.

Ship of Fools is what the US empire and the US society looks like now. And that’s not funny. Look at “Ship of Fools: How a Selfish Ruling Class Is Bringing America to the Brink of Revolution” by Tucker Carlson hits the mark when he says that the career politicians and other elites in this country have put the USA on a path of self-destruction.

Some other factors are also in play: one is that a country with 320 million population can’t be governed by the same methods as a country of 76 million (1900). End of cheap oil is near and probably will occur within the next 50 years or so. Which means the end of neoliberalism as we know it.

Tucker states that the USA’s neoliberal elite acquired control of a massive chunk of the country’s wealth. And then successfully insulated themselves from the hoi polloi. They send their children to the Ivy League universities, live in enclosed compounds with security guards, travel in helicopters, etc. Kind of like French aristocracy on a new level (“Let them eat cakes”). “There’s nothing more infuriating to a ruling class than contrary opinions. They’re inconvenient and annoying. They’re evidence of an ungrateful population… Above all, they constitute a threat to your authority.” (insert sarcasm)

Donald Trump was in many ways an unappealing figure. He never hid that. Voters knew it. They just concluded that the options were worse—and not just Hillary Clinton and the Democratic Party, but the Bush family and their donors and the entire Republican leadership, along with the hedge fund managers and media luminaries and corporate executives and Hollywood tastemakers and think tank geniuses and everyone else who created the world as it was in the fall of 2016: the people in charge. Trump might be vulgar and ignorant, but he wasn’t responsible for the many disasters America’s leaders created….

…There was also the possibility that Trump might listen. At times he seemed interested in what voters thought. The people in charge demonstrably weren’t. Virtually none of their core beliefs had majority support from the population they governed….Beginning on election night, they explained away their loss with theories as pat and implausible as a summer action movie: Trump won because fake news tricked simple minded voters. Trump won because Russian agents “hacked” the election. Trump won because mouth-breathers in the provinces were mesmerized by his gold jet and shiny cuff links.

From a reader review:

The New Elite speaks: “The Middle Class are losers and they have made bad choices, they haven’t worked as hard as the New Elite have, they haven’t gone to SAT Prep or LSAT prep so they lose, we win. We are the Elite and we know better than you because we got high SAT scores.

Do we have experience? Uh….well…no, few of us have been in the military, pulled KP, shot an M-16…. because we are better than that. Like they say only the losers go in the military. We in the New Elite have little empirical knowledge but we can recognize patterns very quickly.”

Just look at Haley behavior in the UN and Trump trade wars and many things became more clear. the bet is on destruction of existing international institutions in order to save the USA elite. A the same time Trump trade wars threaten the neoliberal order so this might well be a path to the USA self-destruction.

On Capital hill rancor, a lack of civility and derisive descriptions are everywhere. Respect has gone out the window. Left and right wings of a single neoliberal party (much like CPSU was in the USSR) behave like drunk schoolchildren. Level of pettiness is simply amazing.

34

Raven 10.08.18 at 6:53 am

likbez @ 33: If you think, of all people, Tucker Carlson offers a clear-eyed impartial view of the problems facing America, you might as well start investing in bridges and seaside real estate whenever offered shares by random strangers….

35

Adam Roberts 10.08.18 at 8:14 am

The fundamental rule of democratic electoral politics is this: tribes don’t win elections, coalitions do. Trump’s appeal is strongly tribal, and he has spent two years consolidating his appeal to that tribe rather than reaching out. But he won in 2016 (or ‘won’) not on the strength of that tribal appeal, but because of a coalition between core Trumpists and more respectable conservatives and evangelicals, including a lot of people who find Trump himself vulgar and repellent, but who are prepared to hold their noses. The cause célèbre (or cause de l’infâme) that Kavanaugh’s appointment became ended-up uniting these two groups; the Trumpists on the one hand (‘so the Libs are saying we can’t even enjoy a beer now, are they?’) and the old-school religious Conservatives, for whom abortion is a matter of conscience.

Given the weird topographies of US democratic process, the Democrats need to build a bigger counter-coalition than the coalition they are opposing. Metropolitan liberals are in the bag, so that means reconnecting with the working class, and galvanising the black and youth votes, which have a poor record of converting social media anger into actual ballot-box votes. But it also means reaching out to moderate religious conservatives, and the Dems don’t seem to me to have a strategy for this last approach at all. Which is odd, because it would surely, at least in some ways, be easier than persuading young people to vote at the levels old people vote. At the moment abortion (the elephant in the Kavanaugh-confirmation room) is handled by the Left as a simple matter of structural misogyny, the desire to oppress and control female bodies. I see why it is treated that way; there are good reasons for that critique. But it’s electorally dumb. Come at it another way instead, accept that many religious people oppose abortion because they see it as killing children; then lead the campaign on the fact that the GOP is literally putting thousands upon thousands of children in concentration camps. Shout about that fact. Determine how many kids literally die each year because their parents can’t access free healthcare and put that stat front and centre. Confront enough voters with the false consciousness of only caring about abortion and not these other monstrosities and some will reconsider their position.

And one more thing that I have never understood about the Dems (speaking as an outsider), given how large a political force Christianity is in your country: make more of Jimmy Carter. He’s a man of extraordinary conscience as well as a man of faith; the contrast with how he has lived his post-Presidential life and the present occupier of the White House could hardly, from a Christian perspective, be greater. If the Dems can make a love-thy-neighbour social justice Christianity part of their brand, leaving Mammon to the GOP, then they’d be in power for a generation.

36

Fake Dave 10.08.18 at 9:34 am

Several people here are conflating democratizing the court with instituting direct democracy and getting bogged down in talk of plebiscites and what not, but the US is a representative system and the court is already selected by the people (via their representatives). Direct democracy only becomes necessary if our representatives utterly fail to represent us (which, OK yeah).

There are many ways in which our representatives are failing to hold the court accountable, but the most anti-democratic thing about the Court isn’t their fault at all. It’s lifetime appointments. There is no place in a representative system for people who never leave office. It cheats the citizens out of a voice in vital decision making for decades at a time and subjects young people to mistakes their grandparents made with no recourse except waiting ghoulishly for people to die.

I was a small child when Clarence Thomas was appointed. Now I’ve been a politically engaged and voting citizen for more than a decade and the man is only 70. If he has a good doctor and has been eating his Wheaties, he could still sleep through another 20 years of oral arguments. Likewise, Kavanaugh isn’t just a travesty in 2018. He’s someone we may very well still be complaining about in 2058. When half of Florida is underwater and most of the people who voted for Trump are in their graves, do we want to be explaining to our grandchildren why an aging fratboy has been holding our government hostage their whole lives and there’s nothing they can do about it but hope he dies soon?

Let’s say you had just turned 17 when Trump was elected. Too young to vote, but only barely. Now let’s say that Kavanaugh lives another forty years. Maybe you get a nice progressive replacement for an early sixtieth birthday present. Very nice! However, you’d likely still be annoyed that you and everyone younger than you (IE most of the population) never got to decide if they wanted Kavanaugh around, and most of the people older than you wouldn’t have either because by the time Kavanaugh dies of old age, his generation will be dropping like flies (sorry, you guys). All that will be left of the people who actually could have voted in 2016 (and the preceding Senate elections) will be a bunch of bitter milennials who mostly didn’t vote for any of those idiots. Somehow, I doubt the younger generation will care that Bernie would have won.

I got a little florid there, perhaps, but what I’m saying is that lifetime appointments for any office in a representational system make democracy look like a goddamn farce to the younger generation and become an unethical and disreputable tool for the old and established to extend their political hegemony far beyond their own lifespans. It has to be changed. Not for the sake of the integrity of the Courts, or for the sake of the elected branches of government, but for the sake of people who haven’t even been born yet, who will otherwise grow up knowing that the feeling of having no political power that can’t be vetoed by their elders isn’t just confined to childhood.

37

T 10.08.18 at 12:04 pm

First make DC and Puerto Rico states. Four votes in the Senate. And it’s irreversible.

38

politicalfootball 10.08.18 at 1:27 pm

accept that many religious people oppose abortion because they see it as killing children; then lead the campaign on the fact that the GOP is literally putting thousands upon thousands of children in concentration camps.

I really wish I were still capable of being this naive. If appeals to this sort of conscience mattered, then Trump never would have lost the popular vote by much more than three million. Everybody understands who and what Donald Trump is.

Jimmy Carter was a mediocre-to-bad president, and is regarded in the popular imagination as a bad-to-awful president – but forty years later, he is also largely irrelevant.

Trump voters are not the victims of “false consciousness” in any meaningful sense. Many of them are low-information voters, and they will turn against Trump when the economy turns. But all things being equal, they want Trump.

The only choice for Dems nowadays is to stick to their values and get a supermajority of the vote. Or to lose. There really isn’t any compromise with Trumpism.

39

Jerry Vinokurov 10.08.18 at 1:47 pm

I could argue about the “undemocratic part,” which I think is contingent and path-dependent. I can’t understand the arguments Democrats seem to make that it is God’s Will or the natural way that Democrats have to live in metropoles on the coasts. There are sociological reasons and conditions for urbanisation and geographical polarizations, but mostly internal geographical distributions derive from national policies, from low interest rates fueling real estate and equity speculation, for instance. I will not accept the Senate or Electoral College as intrinsically bad for progressives until a few million people move from Blue States to Red States and flip the Senate.

To call this argument stupid would be massively charitable. It’s not so much stupid as coming from an alternate universe that bears no resemblance to anything that happens in ours. Once more for the cheap seats: the idea that in order to have your vote count towards your representation the burden is on you to move to the place where your vote would have “the most impact,” is intellectually and morally bankrupt. That the EC and the Senate over-represent small, mostly white, mostly rural states is not even debatable; it’s just true, and it’s a direct corollary of our constitutional structure, and if you don’t understand this simple, basic, irrefutable fact, then maybe you should stop living under a rock.

In any case, because of Democratic policy decisions, Republicans probably partially or wholly control at least 35 Statehouses and can elect a clear majority of Senators, and more likely 55-60 Senators. Indefinitely. This, along with SCOTUS all the judges, districts and circuits also, gives Republicans two nearly unassailable veto points. For decades. Under current pop distributions, the 51-56st Democratic Senator would be a Heitkamp or Manchin, if we ever got there.

I love this classic move by people who want to be on the left but don’t want to do any thinking about anything. You take two things which are bad for different reasons (a number of policies promoted by leading Democrats really have been bad for a broad swath of Americans; Republicans really are overrepresented in government relative to the popularity of the party and its positions) and you just declare that the first caused the second via the very convincing magic of post hoc ergo propter hoc, ignoring anything like secular trends or that, I don’t know, the Republican domination of government is the result of decades of ideological groundwork. Everything is always only the fault of big city liberals living in their big city liberal bubble and having the temerity to demand wild things like justice and equality. Conservatives don’t have agency, only liberals do (the left of course also has no agency).

Again, this, as the Pauline dictum goes, isn’t even wrong. But you know, given bob’s view on feminism in the other thread, it’s hardly surprising.

This brings me, in the rambling character of comments, to Samuel Moyn’s piece in Boston Review (which I read quickly; might revise my opinion on a more leisurely reading). It would have been stronger, istm, if he had at least acknowledged the role that some federal courts (including the Warren Court itself) played in helping advance the cause of civil rights in the ’50s and ’60s.

The long history of the Court indicates that for the vast majority of its existence it has been a tool of racial oppression and business interests. The fact that at the height of postwar liberalism we also had a brief period of judicial liberalism only serves to highlight how exceptional that period was; we are never going back to that time, and it’s pointless to wallow in the nostalgia of the Warren court. Whatever it did can, has, and will be undone by its conservative successors, and the proximate goal must be to minimize the damage that a conservative Court can do. That means, at a minimum, court packing. I would go much further than that but at the very least the goal has to be to cement a left majority on the court by increasing its size, asking all of the old liberals (Ginsburg and Breyer) to retire, and then replacing them with freshly minted liberal jurists. Does’t even matter who they are or where they come from (qualifications are overrated bullshit), as long as they have the right ideology.

Ship of Fools is what the US empire and the US society looks like now. And that’s not funny. Look at “Ship of Fools: How a Selfish Ruling Class Is Bringing America to the Brink of Revolution” by Tucker Carlson hits the mark when he says that the career politicians and other elites in this country have put the USA on a path of self-destruction.

Oh hey, speaking of insane takes, here’s a purportedly “leftist” commenter approvingly citing Tucker Carlson, the guy who runs a “White Power Hour” on Fox! Totally normal elective affinities here! Again, classic move: in the process of spewing a tremendous amount of bullshit, white nationalists like Trump and Carlson will occasionally say something that echoes a genuine left-wing critique of the system. Dishonest morons who are more invested in a posture than they are in actually making anything better seize on the kernel of truth while ignoring the fetid mess one has to dig through to get to it, and pretend as though it somehow means that Trump will “upend the system” or has any interest in anything other than fleecing the rubes.

There was also the possibility that Trump might listen. At times he seemed interested in what voters thought. The people in charge demonstrably weren’t. Virtually none of their core beliefs had majority support from the population they governed.

This is where the game is ultimately given away: there was never that possibility. There was only the absolute certainty that Trump would govern the same way that any Republican would govern, only more unhinged, and that’s exactly what happened, and if you thought that anything different would happen, you are, frankly, an complete ignoramus when it comes to American politics. And also, bear with me because I know math is hard, but you might consider that according to, uh, the number of votes cast, the positions of the Democratic party actually had plenty of popular support. More, even, than those of its opponents! That doesn’t mean those positions are good or beyond criticism or whatever (caveats here about voter ignorance of policy blah blah blah) but it is empirically false to say that they lacked popular support: what they lacked was popular support distributed in a particular way across the country.

Beginning on election night, they explained away their loss with theories as pat and implausible as a summer action movie: Trump won because fake news tricked simple minded voters.

Trump won because the Republicans have built a coalition of racist revanchists and evangelicals (but I repeat myself) that reliably turns out for the “tax cuts and no abortions” platform. It’s an admirable structural achievement, to be sure, but it’s not exactly a mystery how it works.

But it also means reaching out to moderate religious conservatives, and the Dems don’t seem to me to have a strategy for this last approach at all.

There are no moderate religious conservatives; they exist in such vanishingly small numbers that they are irrelevant electorally. Mining this vein is an absolutely useless endeavor.

Which is odd, because it would surely, at least in some ways, be easier than persuading young people to vote at the levels old people vote.

Why? Again: young people with left-leaning views are a real constituency. “Moderate religious conservatives” are a fake constituency that doesn’t exist outside of Beltway talk shows.

At the moment abortion (the elephant in the Kavanaugh-confirmation room) is handled by the Left as a simple matter of structural misogyny, the desire to oppress and control female bodies.

If only! More typical is that Democrats will try to talk their way around abortion rather than mounting a full defense of it.

Come at it another way instead, accept that many religious people oppose abortion because they see it as killing children; then lead the campaign on the fact that the GOP is literally putting thousands upon thousands of children in concentration camps.

They. Don’t. Care. They like the racism and the fascism and the misogyny. They are here for that, and they vote for Republicans because Republicans promise them the racism and the fascism and the misogyny and actually deliver on those promises. They absolutely love all those things and will keep voting for them because they are rotten people with horrible politics. There is nothing you can do to bring any of them back, and it’s pointless to try.

40

Z 10.08.18 at 2:50 pm

Henry @OP But it does mean that Kavanaugh can, despite himself, become a political engine for change

Adam Roberts @35 If the Dems can make a love-thy-neighbour social justice Christianity part of their brand, leaving Mammon to the GOP, then they’d be in power for a generation.

Both these statements seem way too optimistic to me, and for the same fundamental reason: they both implicitly presuppose that people act in agreement to what they say they believe in (democracy and the rule of law for Henry’s statement, the social or anthropological message of the Gospels for Adam Roberts’s). I tend to very much doubt that people do so in general (adherence to a specific belief is an intellectual position, but most people – including most intellectuals – typically do not decide on what to do based on intellectual positions), I’m quite certain that this is false in general with respect to the beliefs in question here (adherence to democratic forms of government and to a given religion is a praxis, not a belief) but in the specific instance being discussed, I am tempted to scream in disbelief: of course the American Republican Party (and a good deal of the American Democratic Party) is actively undermining democracy and the rule of the law, of course many strands of American Christianity are the very definition of the hypocrites Jesus denounced in the Gospels. That’s what makes them appealing!.

Kavanaugh is not a rotten albatross hung at the neck of the Republican Party, he is their proud standard-bearer. People do not vote for the Republican Party despite Kavanaugh’s angry, distorted, shouting face; they vote for them because of it, just like Brazilians did not give an electoral triumph to Bolsonaro despite him being a racist, misogynist, homophobic, torture apologist who dreams of a military dictatorship but because he is all that. Discussing and reaffirming principles is futile, because these principles rely on the core idea that what goes for you should go for anyone else and vice-versa, and that is precisely the idea theses movements reject. Now is the time for something else.

41

Steve Smith 10.08.18 at 3:21 pm

Or imagine if the court upholds Roe v Wade, and some state, say Mississippi, refuses to comply?

42

LFC 10.08.18 at 3:44 pm

Fake Dave @36

The rationale for lifetime appointments was to insulate federal judges from political pressures, but esp. where the courts are already v. politicized, I agree it would be better to have appointments for a set number of years.

43

Wild Cat 10.08.18 at 3:55 pm

33.

a) You mean white supremacist Tucker Carlson’s ghostwriter is not just blaming those uppity Negroes with police bullets in their back for America’s woes?

b) BTW, slick marketing, slipping that press release on Crooked Timber.

44

engels 10.08.18 at 3:55 pm

The court system isn’t supposed to be a ‘representative’ system. Calling it undemocratic is like complaining businesses are profit-driven or the army is violent.

45

engels 10.08.18 at 4:06 pm

There is no place in a representative system for people who never leave office.

Nice permanent lectureship you got there. Shame if someone were to… democratise it!

46

Jerry Vinokurov 10.08.18 at 5:13 pm

tfw you irreparably break the blockquote logic

Sorry for that. Hopefully it’s clear who’s being quoted and which parts are mine.

47

Cian 10.08.18 at 5:57 pm

So here’s a fun fact about evangelicals that people who live in blue states probably don’t realize. Part of Trump’s appeal is that he’s, well, Trump. For example the other day I heard a serious evangelical talk about ‘the flawed vessel’. Big part of evangelical culture is that Jesus isn’t just for the righteous, or ‘good’, but that God can work with the mostly unlikely of materials to achieve divine ends. From an evangelical perspective there’s nothing hypocritical about supporting Trump.

48

Jerry Vinokurov 10.08.18 at 6:23 pm

Or imagine if the court upholds Roe v Wade, and some state, say Mississippi, refuses to comply?

Imagine thinking we don’t already more or less live in that world.

The correct left response should be cynical federalism, employing it when it’s conducive to advancing progressive goals and punishing recalcitrant right-wing states when progressives hold federal power. Since “federalism” is a meaningless principle with zero moral valence, and since conservatives have been doing this for ages anyway, nothing is lost by taking the position that will most directly advance progressive interests at a given point in time and then reversing that position if it’s no longer useful.

49

mdc 10.08.18 at 6:45 pm

“the white conservative elite that is trying to cripple American democracy”

As opposed to the non-white conservative elite? Or opposed to the non-conservative white elite?

50

Suzanne 10.08.18 at 8:04 pm

@35:
“At the moment abortion (the elephant in the Kavanaugh-confirmation room) is handled by the Left as a simple matter of structural misogyny, the desire to oppress and control female bodies. I see why it is treated that way; there are good reasons for that critique. But it’s electorally dumb. Come at it another way instead, accept that many religious people oppose abortion because they see it as killing children; then lead the campaign on the fact that the GOP is literally putting thousands upon thousands of children in concentration camps. Shout about that fact. Determine how many kids literally die each year because their parents can’t access free healthcare and put that stat front and centre. Confront enough voters with the false consciousness of only caring about abortion and not these other monstrosities and some will reconsider their position.”

Liberals love to point out this kind of contradiction, to small effect. It isn’t false consciousness, because the anti-abortion people see no contradiction. If the market doesn’t want people to have healthcare, they are not entitled to healthcare. If people bring their children to the country illegally, they are to blame for the caging of their children.

Leaving aside the complexities of reaching out to people who sincerely regard women seeking abortions and the doctors who treat them as would-be babykillers, centrist Democrats have actually been trying for decades to reach out to the other side going back to the old Clinton slogan of “safe, legal, and rare.” That hasn’t really worked, because the opposition is focused on outlawing the procedure, not increasing women’s access to family planning services and contraception. There are reasons for that, but they have to do with structural misogyny and the desire to oppress….oops.

Former President Carter is as good a Christian as you are likely to find at the highest level of politics, but his brand of Christianity is at odds even with his own denomination; Jimmy and Rosalynn left the Southern Baptist Conference twenty years ago.

51

LFC 10.08.18 at 10:35 pm

J. Vinokoruv @39

Re “wallow[ing] in nostalgia [for] the Warren Court”:

That’s not what I was doing and that was not the point of my comment (admittedly I could have made the point, which was a historical not a prescriptive one, clearer; the comment was written rather late in the evening).

Anyway, I’ve left a somewhat more coherent comment on Moyn’s piece at another site; and, for various reasons, I’m checking out of this thread.

52

Collin Street 10.08.18 at 11:23 pm

From an evangelical perspective there’s nothing hypocritical about supporting Trump.

Of course! He’s a self-insert character, a token they can project onto.

53

Fake Dave 10.09.18 at 12:11 am

@Engels 44 and 45

I can’t tell if you really didn’t understand my point or are just being glib, but the court is absolutely part of a representative system. That’s why it’s chosen by elected officials and confirmed by other ones. It would only be like granting a professor tenure in a world where students got to pick the tenure committee. Incidentally, there are also a lot of people from very different camps who’ve argued against the current tenure system (I’ll leave that to the education people though) so it’s not like everyone is on board with the idea that it works now.

Anyway, my point is that SC appointments work basically like cabinet appointments and are just as political. Both are basically representative of the elected branches at the start of their terms, but the court just sticks around becoming less and less representative as the electorate changes. You can call this insulation from politics, but I call it democratic poison.

54

Barry 10.09.18 at 1:21 am

Cain: “ From an evangelical perspective there’s nothing hypocritical about supporting Trump.”

This ‘flawed vessel’ and ‘Daniel’ stuff was something which they are using for Trump. They didn’t use it for Obama (nor for Clinton), and they won’t use it for the next Democratic President.

55

Ed 10.09.18 at 1:57 am

I’ve not commented on here for awhile, and I understand there is a risk I am coming across trollish, but is there any chance that one day that the highest court in the USA (we may have to change the name to do this) simply becomes the highest court of appeals and renders the final judgement or judgment on a few legal cases each year on technical legal grounds? What would have to happen for this to be the case?

This is now the norm pretty much every place outside of the USA and what the Supreme Court judges themselves seem to want (most decisions are not controversial and not decided by most votes). It seems to be what the people who attended the 1787 convention envisioned, who barely paid attention to the wretched thing. And while the USA gets a good deal of credit for stating the “supreme court” concept, best practices now involve many more justices, who don’t serve lifetime terms, and who few people have heard of and don’t get media attention. Wtf?

56

Orange Watch 10.09.18 at 2:45 am

Collin Street@50:

Of course! He’s a self-insert character, a token they can project onto.

Anecdotally, I recently had a heated discussion with a federal employee I went to school with; they firmly insisted that Trump is an unwavering, savvy advocate of a strong, independent, apolitical, professional bureaucracy. Treating Trump as a cipher onto which they can superimpose their own idiosyncrasies is something that seems very common all across the Trumpist GOP, not just evangelicals.

57

Heliopause 10.09.18 at 3:09 am

@47
This whole “how can evangelicals vote for Trump” thing has always been funny to me. Equivalently, it can just as easily be asked of educated liberals, “how can they vote for obvious pathological liars like the Clintons?” Well, the evangelicals are not complicated and neither are the educated liberals; some actually believe the spewage that comes out of the mouths of Trump and Clinton, and some just vote for what they perceive to be the lesser of two evils. All the rest is commentary.

58

Alan White 10.09.18 at 3:49 am

I’ve said this a couple of times here, but metaethically Trump is de facto an emotivist, or an expressivist politician. He doesn’t know this this of course, because he’s too stupid to know anything of real significance beyond his own self-centered lust, and in a way he is just a figurehead of the movement that has grown since the 90s funded by conservative forces that dimly but as it turned out effectively understood how money and media could leverage a significant portion of the voting populace to “agree in emotional attitude” and make that money speak (even somewhat literally in Citizens United) with the only power that matters. Moral truth? Hah! The power of reasonable argument? Let those glaciers melt! C. L. Stevenson et al only thought they were describing the most defensible form of moral anti-realism; little did they know they were prognosticating how the power of self-interested capitalism could eclipse any serious consideration of rational morality in politics. Even pointing this out, I see no way back. Rational morality in politics is dead, dead, dead. It’s all about emotional attitudes.

59

Gareth Wilson 10.09.18 at 4:43 am

My understanding is you could limit the Supreme Court that way just by passing a bill. It used to be everyone would be afraid of doing that, because they wouldn’t trust politicians to respect people’s rights and would want judges as a check on them. But now both sides agree that Supreme Court judges are just politicians in funny clothes, so why not?

60

Neville Morley 10.09.18 at 6:45 am

Tangential, but I was struck by this passing remark from likbez #33: “a country with 320 million population can’t be governed by the same methods as a country of 76 million (1900).”

On the one hand, this style of argument is very familiar from early 19th-century discussions of ancient and modern political systems: how do you recreate the virtues (cohesiveness, full engagement of citizen body, deliberative decision-making etc) of the Greek polis (not necessarily or only democratic) in a society that’s vastly bigger and arguably more complicated? On the other hand, the difference in scale between societies of x and 4x population, especially given developments in communications technology, seem rather trivial compared with the difference in scale of a polis of 5-10,000 citizens and a modern society of a couple of million. So I wonder what the significant effect of a quadrupling of population is taken to be.

61

engels 10.09.18 at 9:51 am

the court is absolutely part of a representative system

No it’s not because it’s job is to interpret the law. If it was representative a hearing might go something like: Roe wants to have an abortion, Wade doesn’t, my constituents are strongly anti-abortion and I campaigned on an anti-abortion platform so I’m gonna have to say ‘no’. Oddly they don’t do this but seem to a lot of time blathering on about legal principles, precedents and whatnot. Funny!

62

Layman 10.09.18 at 10:56 am

Ed: “…but is there any chance that one day that the highest court in the USA (we may have to change the name to do this) simply becomes the highest court of appeals and renders the final judgement or judgment on a few legal cases each year on technical legal grounds?”

Dunno, but I don’t see how you separate this part from the rest. To make a final decision on technical legal grounds is (effectively) to say what the law means. It’s not a big step from ‘saying what the law means’ to ‘saying what the Constitution means’, and in fact when Alabama decides to enact a poll tax — or Congress does — you need someone to invalidate that law because it violates the Constitution. Who does that if not the Supreme Court?

63

Cian 10.09.18 at 1:39 pm

This ‘flawed vessel’ and ‘Daniel’ stuff was something which they are using for Trump. They didn’t use it for Obama (nor for Clinton), and they won’t use it for the next Democratic President.

Well of course not – Trump is doing things that they want. My point was simply that the attempt to catch evangelicals out on the contradictions won’t work – they know he’s flawed, and from their worldview that’s part of the appeal.

64

Cian 10.09.18 at 1:42 pm

Anecdotally, I recently had a heated discussion with a federal employee I went to school with; they firmly insisted that Trump is an unwavering, savvy advocate of a strong, independent, apolitical, professional bureaucracy. Treating Trump as a cipher onto which they can superimpose their own idiosyncrasies is something that seems very common all across the Trumpist GOP, not just evangelicals.

Actually my point was more that for a lot of evangelicals Trump is a less of a cypher than liberals seem to believe – paradoxically revealing his flaws increases his appeal.

As for ciphers – that just seems very human. Obama was also a cipher for a lot of left leaning liberals. Once you’ve committed to a position, you’re going to do almost anything to avoid changing your mind.

65

Cian 10.09.18 at 1:46 pm

Fixing the court really isn’t that hard technically:
1) Fixed term limits (say 10 years), with rolling appointment dates.
2) Increasing the number of judges to say 30, and making it so that each trial is heard by a random sample of those 20.

Lifetime appointments is insanity. Creating a separate body that determines which trials go to appeal might not be a bad idea either. Though that seems tricker to implement

66

Orange Watch 10.09.18 at 10:55 pm

Cian@64:

No, you’re reading too much into their word choice. Their defense of him in the language of their culture does not mean they his flaws make him more appealing to them, even if they vaguely allude to that – that sort of tone is a defense of themselves, not of Trump. They view this as transactional, no less so than they might view support of Israel as quid-pro-quo to bring about the right conditions for the end times. But that doesn’t mean they love him more for e.g. his philandering, it just means they don’t care. They’d’ve been glad to trot out “flawed vessel” excuses to anyone who questioned their support of a hypothetical candidate Obama who offered up the same slate of judges and spoke of recognizing Jerusalem as Israel’s capital as candidate Trump did.

Trump is a cipher to them, but what they’re writing onto him is not an idealized version of themselves, it’s the Will of God – and they don’t need to assume he’s a blank slate to assume That will overwrite what was there. Everything about him but carrying out the will of God as they perceive it is irrelevant; the flawed vessel is free to be as ugly or twisted as it wants so long as it continues to serve its divine purpose and carry water.

67

Raven 10.09.18 at 11:30 pm

Cian @ 65: “Lifetime appointments is insanity.”

The Constitution actually says federal judges “shall hold their Offices during good Behavior” — hence the option of impeachment — but didn’t provide for the possibility that an overwhelmingly one-party-dominated Congress might choose not to care about bad behavior on the part of a judge or judge-nominee of the same party….

68

Kurt Schuler 10.10.18 at 1:57 am

I don’t recall a lot of hand-wringing over the undemocratic character of the U.S. constitutional system eight or nine years ago when Barack Obama was president and the Democrats had majorities in both houses of Congress. Funny how that works.

Another thing: Kavanaugh is going to be terribly racist. How do we know? Before even hearing a single case as a Supreme Court justice, he has hired as many black clerks (one) as Ruth Bader Ginsburg has in her 25 years on the court. This must not stand!

69

J-D 10.10.18 at 4:06 am

Kurt Schuler

I don’t recall a lot of hand-wringing over the undemocratic character of the U.S. constitutional system eight or nine years ago when Barack Obama was president and the Democrats had majorities in both houses of Congress.

Don’t you? I do. Does the expression ‘Second Amendment remedies’ ring any bells?

70

alfredlordbleep 10.10.18 at 8:40 am

Just a further note on Raven@67:

The argument as to whether “good behavior” means “for life” is hardly academic. If one takes the textualist view of Article III that today’s roster of conservative justices hold so dear, establishing term limits for justices would not require a constitutional amendment, just an act of Congress. If such a law would pass and be signed by the president—although this president is admittedly unlikely to do it—the nation would not only return a degree of civility to a process that has careened hopelessly out of control, but we could once again begin to choose members of the nation’s highest and most powerful court on the basis of their achievements, rather than just their longevity.
https://newrepublic.com/article/151620/says-supreme-court-justices-get-lifetime-tenure

(Big picture) Somebody in a lightning strike should dispose of all discussion of our rotten system sitting on its rotting eighteenth-century foundations (but LFC’s taken a hike. . .) :-)

71

Nigel 10.10.18 at 9:18 am

I don’t recall a lot of hand-wringing’

You probably couldn’t hear it over the howls about him coming for guns, throwing open the borders, stoking racism and wearing tan suits. It’s weird how hard it is to make, or notice, cogent criticisms in the midst of whirlwinds of absolute bullshit.

72

Nigel 10.10.18 at 9:30 am

‘My point was simply that the attempt to catch evangelicals out on the contradictions won’t work’

The point is to undercut their criticisms of the personal morality of their opponents by highlighting their own willingness to overlook, or even embrace, monstrous flaws to achieve their political ends. Is their anything, short of accusations of sexual assault, that the right flung at Hilary Clinton that did not have some correspondence in Donald Trump? (Oh, no, wait, I’m forgetting Pizzagate.) But anyway, even all of that seems wrong. Trump is a punishment they’re inflicting on liberal America. He’s the horn of Jericho, the destruction of Sodom and Gomorrah. He’s the sufferings God inflicted on Job to prove his righteousness. The ones that complain and curse God are shown to be unworthy. The ones that say thank you God may I have another are the pure and the saved. Thus are the libs pwnd by the righteous fury of the Lord.

73

derrida derider 10.10.18 at 10:21 am

“ From an evangelical perspective there’s nothing hypocritical about supporting Trump.”

But the preachers pushing this “flawed vessel” stuff are exactly the same ones who were pushing the “its about character” and “moral clarity” stuff when Bush the Lesser was counting on their votes. Shameless hypocrites indeed, but on that very account hard to counter.

It’s one of the many puzzles with the US – zealous Christians in most other countries are as firmly wedded to the centre left, as embodying Christian values, as those in the US are to the plutocratic right.

74

Layman 10.10.18 at 4:42 pm

Kurt Schuler: “I don’t recall a lot of hand-wringing over the undemocratic character of the U.S. constitutional system eight or nine years ago when Barack Obama was president and the Democrats had majorities in both houses of Congress.”

Maybe because that outcome was reflective of the choice of the majority of voters? And this current one isn’t?

I don’t know about you, but ‘…it’s barely possible for the majority to win a big enough victory that they can actually govern for a few years, but only if the other side first destroys the country…’ is hardly a ringing endorsement of the democratic character of the system.

75

Cian 10.10.18 at 8:15 pm

It’s one of the many puzzles with the US – zealous Christians in most other countries are as firmly wedded to the centre left, as embodying Christian values, as those in the US are to the plutocratic right.

I don’t think this is true. Some do, some support the hard right. But then you can also find socialist evangelicals in the US. Shane Claiborne to pick a name at random.

76

Cian 10.10.18 at 8:23 pm

Nigel @54,

Undercut with whom exactly? Who is convinced by evangelicals expressing their moral opinions other than other evangelicals?

Is their anything, short of accusations of sexual assault, that the right flung at Hilary Clinton that did not have some correspondence in Donald Trump?

Given that liberals ignored (at best) for many years credible accusations of sexual assault made against Clinton and Ted Kennedy, not sure this is the best approach to take here.

(Oh, no, wait, I’m forgetting Pizzagate.)

Or the liberal equivalent where Trump is Putin’s intelligence asset – a theory completely immune to any evidence.

But anyway, even all of that seems wrong. Trump is a punishment they’re inflicting on liberal America. He’s the horn of Jericho, the destruction of Sodom and Gomorrah. He’s the sufferings God inflicted on Job to prove his righteousness.

Well granted I only live in the bible belt and know some of these people, but that’s not how they see him.

This ‘flawed vessel’ and ‘Daniel’ stuff was something which they are using for Trump. They didn’t use it for Obama (nor for Clinton), and they won’t use it for the next Democratic President.

Well of course not. Trump is fulfilling (in their eyes) the will of the lord – Obama and Clinton thwarted it. They’re hardly being inconsistent here.

They don’t think like liberals, their world view is different and their values are different. Trying to catch them out on US liberal hypocrisies is never going to work, because they don’t look at it that way.

77

J-D 10.11.18 at 12:18 am

derrida derider

It’s one of the many puzzles with the US – zealous Christians in most other countries are as firmly wedded to the centre left, as embodying Christian values, as those in the US are to the plutocratic right.

I’m curious to know what you’re basing that on. I’m sure that in many countries, including the US, it’s possible to find some zealous Christians who are firmly on the centre left, or even the left, but if I had to guess I would guess that in most countries zealous Christians in general tend further to the right than whatever the national average is. That is mostly guesswork though, so if you do know of more definite information I would be interested to learn about it. (It’s definitely possible to find some examples of zealous Christians who are to the right of centre, but I don’t draw general conclusions from that.)

78

Raven 10.11.18 at 1:36 am

derrida and J-D: It depends on which Christians, and on which specific issues you want to measure. Take for instance the various European nations’ “Christian Democratic” parties, and I quote from Wikipedia’s article Christian democracy:

In practice, Christian democracy is often considered centre-right on cultural, social, and moral issues (and is thus a supporter of social conservatism), and it is considered centre-left “with respect to economic and labor issues, civil rights, and foreign policy” as well as the environment.

79

Faustusnotes 10.11.18 at 2:39 am

J-D , consider the electrical union in Australia (don’t remember it’s acronym now) that opposed gay marriage on Catholic grounds, Peter Garrett , or Sinn Fein in Ireland. Particularly among Catholics there’s a mixture of left and right wing politics and they’ve often been heavily involved in unionism.

80

J-D 10.11.18 at 5:53 am

Raven and Faustusnotes (and derrida derider)

As I hinted already, I’m sure I could come up with my own examples of zealous Christians in various countries who are to the left of wherever the centre is in their own countries, and other examples who are to the right. But, as I also indicated, that’s not the point because it’s not enough to base a general conclusion about average patterns. It seemed to me that derrida derider was suggesting that on average zealous Christians, except in the US, tend to the left of centre, and I’d like to know if there’s evidence that supports that conclusion, because in the absence of specific evidence my guess (and I admit it’s a guess) would be that the opposite is true.

81

J-D 10.11.18 at 6:13 am

Faustusnotes

J-D , consider the electrical union in Australia (don’t remember it’s acronym now) that opposed gay marriage on Catholic grounds

When I searched for information, what I found was that the Electrical Trades Union (ETU) took a strong stand in support of marriage equality, so I feel in fairness to them I should mention that.

If you had asked me to guess, ‘Which Australian trade union took a position against marriage equality?’, I would have guessed the SDA (Shop, Distributive, and Allied Employees Association–the ‘Shoppies’ or ‘Shoppos’), who have a history of Catholic leadership: I find on searching that they did do so at one stage, but subsequently shifted to a neutral position, supporting a conscience vote.

82

Nigel 10.11.18 at 10:02 am

‘Undercut with whom exactly?’

Everyone. No harm in stating the obvious, is there?

‘not sure this is the best approach to take here.’

I’m trying to work out how this is responsive to what I was saying other than a kind of reflexive whataboutery? Hilary Clinton was the candidate. Trump was accused multiple times of sexual assault, she was not. She was accused of being a member of an elite high-powered pedophile ring, though.

‘Or the liberal equivalent’

Oh, sure. I mean in that conspiracy there’s a range of possibilities from the Trump team getting into shady dealings with Russian operatives to Trump being a Manchurian candidate. In the other there’s a range that runs from the Clinton team ordering pizza a few times to them ordering children to abuse.

‘but that’s not how they see him.’

No, that’s how I see their relationship to him and to liberals working. There’s a parallel beatification going on as well in all its lurid kitsch – they’re rewriting history as it happens, turning it into prophecy and fulfillment, and it’s a deeply cynical exercise.

83

Lyle 10.11.18 at 10:26 am

Nice try, Kurt. Bummer for you you’re so late you the game!

84

faustusnotes 10.11.18 at 2:41 pm

Sorry J-D, your guess is as good as mine. I know there was a union! Did you know Peter Garrett is a very serious christian, strongly opposed to abortion, but pro-choice? It’s a thing in rational countries. I don’t know what the balance of left/right would be though. I suspect it runs on class lines, and upper class people are more likely to pretend to be christian.

85

Jerry Vinokurov 10.11.18 at 3:52 pm

Another thing: Kavanaugh is going to be terribly racist. How do we know? Before even hearing a single case as a Supreme Court justice, he has hired as many black clerks (one) as Ruth Bader Ginsburg has in her 25 years on the court. This must not stand!

Conservatives live in a world where apparently Shelby County didn’t happen, which must be nice because I’d like to live in that world too; instead I live in the real world, where a five-person conservative majority on the Supreme Court threw out a legitimate piece of legislation on completely made up grounds (“equal dignity of the states” lol).

86

Ogden Wernstrom 10.11.18 at 7:38 pm

Z 10.08.18 at 2:50 pm:

Kavanaugh is not a rotten albatross hung at the neck of the Republican Party, he is their proud standard-bearer. People do not vote for the Republican Party despite Kavanaugh’s angry, distorted, shouting face; they vote for them because of it…

…reminds me of Stan Evan’s response to a 2005 speech by Rick Perlstein, “I didn’t like Nixon until Watergate”.

I see that arguments in the style of “What About Chappaquiddick?” have turned up in this thread, too – but they still fail to point out any current or recent nomination of Ted Kennedy or W. Jefferson Clinton that is being considered. If we are going to allow all things in the past to be judged by current standards and practices and to be used to accuse current members of the party of complicity, the best reply to Republicans is, “What about Nixon?”.

87

TM 10.11.18 at 10:16 pm

“Everything about him but carrying out the will of God as they perceive it is irrelevant”

If you believe the “will of God” is hate and discrimination, why would you object to Trump?

This discussion is way too easy on Evangelicals. There isn’t really much contradiction between Trump’s character and the “values” of the white Evangelicals who support him. They share his hatred for modern liberal secular society and consider its destruction the “will of God” and a paramount religious duty. They share that hatred with the fascists, indeed they are a willing part of the fascist movement. Just because their fascism is clothed in religious language doesn’t make it any less hateful.

The affinity between Trump and white Evangelicals isn’t all that surprising. The “prosperity gospel” has primed them to worship wealth and ostensible success, the less deserved the better – (notice how Obama or Clinton – none of whom were born rich – could be dismissed as elitist, not so Trump with his gilded bathroom fixtures). Trump’s obvious narcissism is paralleled by Evangelicals’ firm belief in their own “chosenness”, the certainty of their own salvation (and many truly believe in the rapture). They also believe that salvation has nothing to do with a person’s deeds and actions. We are all sinners, they say smugly, what matters is faith – and our faith is the right faith. In discussions with missionary-minded Evangelicals, the total absence of humility always stands out.

Trump really is their man.

88

TM 10.11.18 at 10:19 pm

Contrary to what has been asserted by some, a constitutional court with strong powers isn’t a uniquely American institution and nor is it per se a threat to representative democracy. What is uniquely American is the dysfunction due to blatant politicization and also inefficiency.

As an obvious comparison, the German Constitutional Court has 16 judges (forming separate Senates and panels) with a strict term limit of 16 years and an age limit of 68 and they are appointed with parliamentary approval requiring a two thirds majority.

This isn’t rocket science. The idea to let the executive branch pick the judges is absurdly anachronistic. And the suggestion to limit or even discard judicial review wholesale in order to fix SCOTUS is a dangerous misconception.

89

J-D 10.11.18 at 11:42 pm

TM

Contrary to what has been asserted by some, a constitutional court with strong powers isn’t a uniquely American institution and nor is it per se a threat to representative democracy. What is uniquely American is the dysfunction due to blatant politicization and also inefficiency.

The existence of a court which has and uses the power to invalidate legislation on constitutional grounds is not unique to the US. Obviously any such court has some political significance, but it’s obvious to me that the High Court of Australia, in my own country, has much less political significance than the Supreme Court of the United States, and I suspect that similar courts in other countries also have much less political significance than the Supreme Court of the United States. Why would that be, does anybody know?

90

TM 10.12.18 at 9:25 am

J-D: “Why would that be, does anybody know?”

Part of the reason is what I explained above, that courts like the German one are less blatantly ideological. Judicial extremists wouldn’t make it to the bench. But apart from that, an important reason for SCOTUS dysfunction is simply that the US constitution is itself anchronsictic and dysfunctional. It doesn’t answer important questions that a modern constitution is supposed to answer, thereby leaving huge leeway to the often arbitrary interpretation of vague clauses by a small cadre of ideologically selected appointees. The German constitution, to compare, regulates the powers of and the relations between states and the federal government in far more detail, it has a long catalogue of basic and civil rights and it specifies certain guiding principles that all state power is supposed to serve. Furthermore, the constitution can be amended much more easily than in the US – the hurdles are still high but amendments happen regularly.

91

alfredlordbleep 10.12.18 at 11:46 am

As an obvious comparison, the German Constitutional Court has 16 judges (forming separate Senates and panels) with a strict term limit of 16 years and an age limit of 68 and they are appointed with parliamentary approval requiring a two thirds majority. Thanks to TM@88

The clear comparison is to the U. S.’s decrepit system’s now defunct filibuster standard.
Perhaps the Germans benefited from the American experience of, oh, 160 years or so.

92

TM 10.12.18 at 8:23 pm

The term limits and the two thirds quorum are laid down in law, not in the constitution itself, so a bare parliamentary majority could in principle overturn these rules. But this would require regular legislation, itself subject to judicial review. The constitution does specify that judges are elected by both chambers of parliament. The executive branch is not involved. (Art. 92-94 of the German Constitution.)

93

Orange Watch 10.12.18 at 8:51 pm

TM@87:

The “prosperity gospel” has primed them to worship wealth and ostensible success, the less deserved the better […] Trump’s obvious narcissism is paralleled by Evangelicals’ firm belief in their own “chosenness” […] Trump really is their man.

Yes, but neither Trump’s greed nor pride are the flaws under scrutiny when flawed vessel metaphors are pulled out. Evangelicals may admire Trump for being a hereditary oligarch (“self-made billionaire!”) or narcissist (“alpha male!”), but they do not admire him for being a philanderer. When it comes to gender relations and sexuality in the administration, Pence is their man. By and large, political American Christianity still means “sex” when they talk about “morality”. Hence, Trump remains a “flawed vessel” no matter how much they admire his demeanor.

94

TM 10.13.18 at 8:03 am

OW: it is a truism tested many times that philandering renders a politician unfit for office, in the eyes of self-righteous Evangelicals, *only if he or she is a Democrat*. There is probably not a single case in which Evangelicals supported a Democratic model family man or woman over a “flawed” Republican. It is hard to see how the “flawed vessel” excuse is even relevant here. It’s not that they are laying down a rule but allow exceptions (which might be a reasonable thing to do) – they claim to have a rule (“we support family values”) but in practice they follow a different rule (“we support any Republican no matter their moral rottenness”). That is clearly hypocrisy.

But at this point we have already allowed the Evangelicals to frame this debate. We have allowed them to define “Christian values” as conservative sexual morals and thereby to deflect from debating the actual core Christian values as they are laid down in the Sermon on the Mount for example. We have allowed them to deflect this debate from refugee children who are put in cages with the support of those “Christians”. We should not let them get away with this. If they wish to support Trump as “doing God’s work”, we must force them to admit that their “Christianity” is nothing but hate, discrimination, environmental destruction, fleecing of the poor, and so on.

The media sadly are still willing to play their game at their own conditions, implicitly accepting that “Christianity” is defined by opposing abortion. This is a remarkable propagandistic feat – they have managed to define what it means to be Christian in America. It’s time that we stop enabling this grotesque lie.

95

J-D 10.13.18 at 9:50 am

TM

The constitution does specify that judges are elected by both chambers of parliament.

It would be more strictly accurate to say that the basic law provides that half the judges are to be elected by the Bundestag and half by the Bundesrat.

That technical point aside, you may be right about how specific features of the German system explain why the German Constitutional Court doesn’t have the same level of political significance as the US Supreme Court, but how widely shared are those features by other countries?

96

Orange Watch 10.13.18 at 10:47 am

TM:The media sadly are still willing to play their game at their own conditions, implicitly accepting that “Christianity” is defined by opposing abortion.

Do they? In this instance, yes, but more generally I see acknowledgement that opposing any and all deviations from “traditional” views of gender roles and sexuality is the core of political Christendom in the US… which is a fair assessment of the core neuroses of Evangelical political morality (as well as an apparent driving force in its self-imposed increased irrelevancy.)

97

alfredlordbleep 10.13.18 at 11:37 am

Forgive me quoting me quoting A. S. (CT June 2017)
on the White Christians’ Party:

After the House passage of “Trumpcare” Andrew Sullivan had this:

. . . Its gutting of Medicaid will force millions of the poor to lose health care almost altogether. It will bankrupt the struggling members of the working and middle classes who find themselves in a serious health crisis. It could hurt Republicans in the midterms —though that will be cold comfort for the countless forced into penury or sickness because of Trump’s desire for a “win.” But it’s clarifying for me. It forces me to back a Democratic Party I don’t particularly care for. And it destroys any notion I might have had that American conservatism gives a damn about the vulnerable. It really is a deal-breaker for me. I hope many others feel exactly the same way.

98

TM 10.13.18 at 5:45 pm

J-D: I didn’t want to go too much into technical detail but you are correct of course.

“how widely shared are those features by other countries?”

The Swiss Supreme Court (Bundesgericht) has 38 judges who are elected by both chambers of Parliament (in this case together, not separately). They also have an age limit of 68, terms are 6 years but no term limit. As in Germany, the judges are nominated by the parliamentary parties according to their proportional strength without interference by the executive branch. The large number of judges makes it unlikely that individual judges matter much, and the Swiss constitution is also frequently amended (by referendum requiring a single majority). Unlike in Germany, the court doesn’t have the power to invalidate laws but a ruling of unconstitutionality usually results in parliament having to amend the law in question.

I would appreciate to hear from other countries. Which countries besides the US allow the executive government to control the judiciary?

99

TM 10.13.18 at 7:29 pm

P.S. It occurs to me that the renewable terms of the Swiss judges are problematic as they might undermine judicial independence. Indeed there is an initiative in progress to change the judicial election system.
https://www.justiz-initiative.ch/fr/startseite.html

In related news, the Extreme Right is frontally attacking the ECHR with the goal – seriously – of withdrawing Switzerland from the European Convention on Humn Rights (https://www.humanrights.ch/en/switzerland/internal-affairs/law/determination-initiative-human-rights). At the same time they are also constantly attacking the Federal Supreme Court and seek to limit judicial review. Similar political goals are shared by authoritarian governments and extreme Right parties throughout Europe.

100

J-D 10.14.18 at 1:21 am

TM

I would appreciate to hear from other countries. Which countries besides the US allow the executive government to control the judiciary?

Historically, English judges were chosen by the king. Powers originally vested in the English king are still nominally vested in ‘the Crown’, but what this generally means in practice is that the actual decision is made by the Prime Minister, another minister, or the Cabinet, and the only role of the monarch is to provide a purely formal confirmation. For example, Acts of Parliament in the UK still need to receive ‘Royal Assent’ before they can come into force, but the Queen gives ‘Royal Assent’ when the government formally advises her to do so. So judges in the UK are nominated by the government. I think I remember reading or hearing that in recent years there has been some sort of non-partisan body set up to consider candidates for judgeships and provide advice/recommendations, but what I’ve never heard or read that there’s any requirement for nominations of judges to be confirmed by Parliament.

In a way, that’s not relevant to the discussion here, because there’s no UK court with the power to rule legislation invalid for contradicting the constitution, and that’s because whatever ‘the British Constitution’ means (and I think it does mean something), it doesn’t mean a fixed legal text. However, the English system for appointing judges has been copied in countries which have derived constitutional structures from England. Therefore, my guess would be that in most Commonwealth countries (and former Commonwealth countries), judges are nominated by the government and do not require confirmation by parliament. That’s certainly true in my own country. Not all of those countries have a constitution in the form of a fixed legal text, but at least some of them do (again including my own country). The Justices of the High Court of Australia are chosen by the government without requiring parliamentary confirmation, and the Court can and does make binding rulings on whether legislation is constitutionally valid, and as I mentioned earlier this does make it a politically significant body, but (for no reason I can put my finger on) not as politically significant as the Supreme Court of the United States. (The High Court currently has a membership of seven, as a result of progressive increases from an original membership of three. Originally, Justices stayed on the Court until they died or chose to retire, but since a constitutional amendment four decades ago there is now a mandatory retirement age of seventy.)

Comments on this entry are closed.