Kavanaugh

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.)

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)

“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.

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.)

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.

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.

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.

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.

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.

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.

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?

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

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.

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”.

#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.

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.

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.

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.

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

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.

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

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.

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!

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.

“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?

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.

@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.

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?

@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.

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?

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!

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.

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

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….

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?

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.

“ 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.

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.

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.)

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.

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.

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

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).

“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.

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?

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.

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.

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?

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.

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.