The Losing Game – Why Majority Rule Needs Constraint
My son is a rule maker. When he was young he would invent new rules for a game, lobby successfully for them, and then enforce them vigorously. Our house rules for Monopoly include extra rules about dice, passing go, free parking, making change, trading, and the list goes on. He invented such rules to benefit himself. The rules clearly gave him an advantage because he had an advance plan to use them. His siblings had to catch up. Yet after a game or two he complained bitterly (as parents we call this “whining”) about rules he invented being used against him. He forgot the first rule of most games – you can’t win them all.
In 2013, senate Democrats (then in the majority) altered a long standing rule that required a 60 vote super-majority to advance judicial nominations to a floor vote. GOP senators were blocking 3 important DC circuit nominees. The judges waited for weeks on a cloture vote. By quashing the filibuster threat, Majority leader Harry Reid and the Democrats moved the nominations forward and eliminated the backlog.
Of course, obstructing judicial nominees is bad form. I also believe that the GOP blocking of the confirmation of Merrick Garland on the thinnest of pretexts was dirty pool. But the “senate rules” are customs worked out between senators. They do not have the force of law, and the senate has always been pompous and flattering on the surface with a seedy, backstabbing underbelly. It’s their playground, so changing the senate rules is up to them.
The 2013 rule change, however, was a bad idea. Now, it appears Reid’s rule change, which generated plenty of atta-boys among Democrats at the time, has come home to roost. This rule change seats two Trump nominated supreme court justices on the court without much of a fight. I don’t think that’s the trade off Harry Reid envisioned. In the same way, the blocking of Garland will eventually come home to roost for the GOP.
Why do politicians latch on to temporary advantage in ways that bite them later? Why are they so predictably short-sighted?
We Don’t like Ceilings and Floors
A few years ago, my team and I created a portal for high wealth farmers that included hedging strategies for commodity trading. Coming from the stock and option world, my mindset was to look for opportunities with a big return, so it was an education. Farmers care about a return of course, but the goal of commodity trading for the producer is to lock in a return and minimize potential losses. Using hedging strategies (and some other things like crop insurance) a farmer can often ensure that he will not lose money. Once he has his floor, he moves on to maximizing his return. But building that floor creates a maximum return constraint as well. Commit to a guaranteed return and you necessarily take some of your flexibility away. Your potential return is less. You lower the ceiling.
This way of thinking is challenging. Most of us don’t automatically think, “how do I hang on to modest gains when I inevitably lose?” Instead, we assume we will keep on winning. The other side will just have to suck it up and take it. That was certainly Reid’s position in 2013; he had a majority and the Democratic president was popular. It made perfect sense to bequeath more power to his side.
Five years later there is likely to be a 5/4 conservative majority on the supreme court – a ratio that may exist for decades. If RBG’s personal trainer is hit by a bus it’ll be 6/3. But note that McConnell – adamantly opposed to the rule change at the time – plays the sauce-for-the-gander card just as glibly. When the Democrats are back in control (and they will be, eventually), the shoe will be on the other foot yet again. And you can bet if a vacancy appears during a presidential election year, there’s zero chance that a GOP president will be able to get a candidate through a Democratic senate.
This is just one example. Parties and interest groups often make tactical moves that have serious negative implications for long term success. This senate example is particularly hurtful since it results in rule by a bare majority. I’d like to propose we keep a principle in mind as we contemplate rule changes. We should always ask, “What happens when we lose?” Since we see each other as opponents instead of partners, all rules and structures, beyond being fair and equitable to both parties, should have checks on the power of the majority.
Preparing to Lose – Limit Majority Power
Limiting majority power seems counter-intuitive in a democracy, but hear me out. When we created our byzantine form of government it was not a hierarchy. The powdered-wig pols in Philadelphia built a scaffold with competing centers of power in the three branches. These branches in turn competed with state governments. The Madisonian idea was for cross-cutting cleavages (Note: this has nothing to do with Stormy Daniels, see Federalist 10) to cause temporary coalitions to form among factions in order to accomplish shared goals.
The system facilitates messy chaos with states, courts, legislatures, the populace, and the executive all in competition with various parts of the machine. The biggest fear of many at the constitutional convention was that majority rule would predominate. The “will of the people” was feared. Majority rule was a recipe for oppression. There was no magic wisdom in the mob.
There are plenty of flaws in the constitution, but in this they were wise. Most voters (present readers excepted, of course) are not reasonable, thoughtful, civic minded arbiters who generate wisdom through a collective spell cast in the voting booth. When they are afraid, angry or under stress, voters can make truly awful decisions. I will forego the obvious orange example.
Indeed, I sometimes wonder why everyone pushes so hard to get full voter participation. I suppose they believe that if more folks voted, their “side” would inevitably win. I do believe in voting as both a right and a duty. I encourage everyone to vote. I myself vote. But if we snapped our fingers and everyone voted in the next election, I’m not confident the outcome would be so different – but I digress.
Rules and structures should limit the ability of the majority to enforce its will unilaterally. Our current form of government does this, if imperfectly. It allows courts, the legislature and the executive to compete for power. As long as there is competition between the branches, checks and balances are playing out. Even when the result is not to my liking, I believe this is a net positive. So if you are frustrated with legislation, court rulings or executive orders, remember two important things:
1) We’re Still Kicking
If you, like me, think the Trump administration is a train wreck, remember that we have survived awful presidents before. The office of the presidency has great influence. Used judiciously, this influence translates into enormous soft power, but his actual power is narrowly constrained. His limited hard power is potentially checked at every turn by competing branches and groups.
In spite of Trump’s epic ignorance and ooh-look-at-me rhetoric, he is not able to do very much without Congress or the courts. Yes he’s a bull in a china shop in international relations. He has no subtlety and apparently not even an “IR for Dummies” book to help him – not that he believes he needs help. But, put another way, his reactions are the frustrations of a caged animal used to getting his way.
He can’t pull out of NATO or the G7 on his own authority. If he tried, he would face a slew of challenges from competing centers of power. He backpedaled his “zero tolerance” border policy. He watered down his immigration “ban” to pass court muster. He can’t repeal the ACA, and he can’t fund his silly wall. Almost nothing is really to his liking. Meanwhile, Mueller is a thorn in his side, but if he fired him tomorrow it would probably generate impeachment proceedings. GOP senators, currently pleased with the policy agenda and holding their nose at all the antics, would find it a bridge too far. In short, the only thing he can do is bellow and Twitter-bait the media. He’s exceedingly good at both of those things, but in the end he’s just another president – and we make way too much of that particular center of power.
2) If You Don’t Like the Weather Just Wait
The pendulum will shift. Each side is predictable in one respect – they overreach. They wildly overestimate what’s possible. They listen to voices that tell them one battle means the war is over. They believe opponents are small, have given up or are dying out. There is an inevitable backlash. A reversal is the one thing you can count on. The Democrats will be back in power in the congress and in the executive branch. A Democratic president will appoint liberal justices to the bench. If that makes you nervous, take heart: once in power, they will promptly overreach and the cycle will repeat like clockwork.
It’s the circle of life, and it moves us all.
Politics is a full-contact sport. Never let that be forgotten, as it will turn around and bite you in the keister. I have zero problems with Mitchy McC enacting the Biden Rule just as I had no problem (though I was a teenager at the time) with the Borking. Both are object lessons of the essential rule of politics “get it now as there may be nothing to get later”. And while I just made that rule up, I think it stands. For you see, the role of a politician is to please and serve the constituents in the area they represent at the time they represent them. They might not be there tomorrow so they need to handle this issue today.
Many of the areas in which Trump is constrained are areas that there was a strong bi-lateral consensus when these agreements are made. This is good and shows that our system is strong. In other areas, where things have been pencil whipped, or Pen and Phoned in, not so much on the held-up side. And this is also good, and, again, it shows our system is strong.
The right hated Obama with the same fervor as the left hates Trump. And in many ways, the proxies of each side make very similar noises about the presidencies. Wash, Repeat.Report
This is one way of looking at representation, but not the only way.
Edmund Burke famously argued that once a representative was in the larger body of parliament, his job was to subsume his own parochial interests in favor of the interests of the nation. Many folks feel (at least historically this is the case) that a representative is to be a person of judgement who makes decisions based on his character rather than polls.
If you believe that policy making is a specialty then this is an important point. Voters do not (cannot) have all the expertise they need to decide complex questions – that’s why they have representatives who garner such expertise and decide for them. That’s the theory anyway.
The framers were well aware of this dissonance. Should a representative merely serve as a proxy for the interests of his constituency? Or should he, given their trust, study and deliberate and use his judgement. They were at least a little ambivalent toward this point. The House of Representatives is crafted to reflect the more parochial “passions” of constituents. While the Senate was made as the “deliberative” body reflecting broad regional and national interests. The senate was supposed to be a check on the craziness of the mob represented by the house.
In practice of course, it has not always worked out that way. 😉Report
And I would say that the Burkeian interpretation is the one that causes voter rebellion, a la Brexit or Trump. I agree that the Senate was designed as a bulwark against the craziness of the house, as you correctly phrase it, but that was destroyed by the 17th amendment.
Much like a house of cards, many of the changes to the overall rules (the constitution) have long-lasting, and often poorly thought out repercussions. And as these are path dependent, you have to keep making changes as you go to correct the last set of changes. This isn’t too say that the original was perfect, heavens no, just that many of these changes haven’t been unalloyed positives.Report
Great points – largely agree.Report
I understand why the 17th happened, but you’d think we could come up with a better solution beyond making the Senate the smaller, longer term House.Report
From what it was designed to accomplish, an equal voice for all states, it is an ideal solution. But the older I get the more I feel that the 17th was a solution in search of a problem. If too many states were compromised by too much corruption (and at this point, I would have to see solid evidence of this) then the solution is fewer new laws and more enforcement of existing laws.Report
Actual state legislatures supported the 17th because state legislature elections were becoming only about whom would be appointed to the Senate, not the actual business of running the state.Report
I agree with this, which is why I’m opposed to other parts of your post. Ie, the immediate issue requiring attention and improvement is to dial down the truly Trumpian levels of narcissism running amok in the Left activist class at the moment.
And the circumstance surrounding the current vacancy at SCOTUS is an opportune way to address this imo. As things stand, the perception is that Judge Kavanaugh will be narrowly confirmed. Republicans have a small majority in the Senate, Kavanaugh is widely expected to have the support of nearly all of them, and there’s a few Democrats with close races this November who will find it politically expedient to support the nomination.
So, at some point during the process, Mitch McConnell can simply say that he expects Kavanaugh to be confirmed with at least 75 or so votes. And if he’s not, in 2020 or 2024 or whatever year the Democrats regain the Presidency that the GOP majority in the Senate (likely bigger than the current one) can simply refuse to consider any Demo nominee for SCOTUS (or similarly, give the President a list of conservative hypothetical nominees to choose from).
The point being, let’s ingore what Manchin or Heitkamp or Joe Donnelly do. Instead, we should insist that there are no “free” votes against Kavanaugh from the mainstream Senate Democrats, eg, Patty Murray, Kloubuchar, Feinstein, Durbin, etc.
It is useful in the final analysis to be able to go beyond the idea of rule by simple majoritarianism. But, it is something that has to be achieved before it can be transcended.Report
I’m getting tired of being told that the irrational hatred the Right had for Obama means that Trump isn’t a corrupt piece of shit.Report
I think Harry Reid fully understood that this day might come, and made the call.
The piece of this puzzle you aren’t mentioning is Merrick Garland, though. Without that, there’s no 5/4 conservative majority.
Yeah, you could look at this as the inevitable outcome of the process that was started with Bork, but it still seems odd that you left Garland out.Report
Um, he didn’t leave Garland out?
I also mention it was “dirty pool”. 🙂Report
No. I’d like to believe this and I’ve seen several explanations to that effect but it just doesn’t hold water, and the people who argue the case aren’t very clear about what grounds they’re using.Report
I think the thesis of “That decision led to this 5-4 conservative majority” falls apart because of Garland.
I think that that decision led to a day when an unfavorable majority to Democrats would appear on the court, I just don’t think it would be now without Garland.
But maybe I misread you.Report
Most democracies don’t have that many constraints on the majority party. In the Westminster system, the only real constraint is a coalition government with a party that would constrain you in some way. Otherwise the minority has no real power. The best they can do is form shadow governments and talk to the media and wait till the next election or a no confidence vote.
I would also argue that the probable real constraint in American politics was that the parties were Big Tent for most of the 20th century or at least the second part of it. We are in a different era now. The parties are more ideologically focused. They are starting to act more like parliamentary parties as well.Report
I’d argue that the parties are *less* ideologically coherent but *more* ideologically rigid.
Which is to say that only having two parties doesn’t allow for real political diversity, ideological positioning and coalition building… this has more to do with our election processes and less to do with our regime choice. That is, Westminster parliamentarianism doesn’t exist the same way in France as it does in England, yet France still has mechanisms for parties to form and unform around coalitions and issues both at the Presidential and Legislative levels.
I’m not sure the Westminster system will perform as well as the country fractures into ever more seriously diverse factions. Italy was (is) famously fractious compared to the relative stability of the UK (and its commonwealth heirs)… I suspect it will display ever greater flaws in an era of Mass Multiculterality.
In fact, a sort of multi-veto system has distinct benefits as the factions and divisions grow… throwing them out for a chance at the brass ring every 6-years has potential for seriously poor long-term governance (or much, much worse).
But that’s partly the point of the OP… adding efficiency in the short-term may come at the expense of peaceful governance in the long.
I very much doubt a Westminster regime change would solve a single problem… but I’m on-board with you if we want to look at electoral and even structural reforms to allow for more political coalitions and power-sharing/fracturing.Report
I don’t think the Westminister system will solve all of our problems but it offers incentives for coalition governments that our system does not.Report
Other than the President vs. Prime Minister… not really; or, more accurately they are using FPTP regionally in the same way that we could have YankyCrats, Mountain Democrats, CaliCrats, and, say, Democratic Farmer Labor parties that might form a Democratic coalition in the House (and maybe even a different one in the Senate) that might be more ideologically coherent for regional differences than a National Democratic Party (and its opposite party).
Changing the regime changes the relationship to the Executive power, but it doesn’t address coalitions and/or minority vetoes.
I think(?) you’re rather in favor of fewer vetoes, which is not something I would agree is prudent. America is kinda the land of the great Truce; Vetoes are kinda our thing… we abolish them at our peril. That we are in the process of abolishing them is going to end poorly; I’m not sure for whom, yet.
Alas, the way to stop the cycle is for the people with the power to give-up or circumscribe the power that they have (legislatively and/or constitutionally) not to take it and expand it so that they have the power to use it *as it should be* used. You’re correct to surmise the Party of Trump will not do this… I’m a little chagrined that the response is to damn the torpedoes.Report
I’m not an expert in Westminster systems or in the UK, but that seems overly broad to me, even with the example of coalition governance being one constraint.
As I understand, there or have been several quasi formal constraints in the UK. At least until the early 1900s, the House of Lords exercised some sort of constraint–and do so even now, if the seconds I spent skimming this site about the Parliament Acts is any indication. And while the courts in the UK had to follow the will of parliament, my understanding is that they would be hypercritical of and interpret very narrowly laws that appeared to transgress longstanding norms, so that if parliament really wants to transgress those norms, it has to be very clear about it.
And I daresay, most robust democracies have extra-institutional checks. A strong civil society limits what a government can do, whether it’s a Westminster system or a presidential system.
All that said, I’d prefer to move toward a more parliament-like direction when it comes to executive power, maybe something like the French (and Russian) presidential system: I’d make the legislative veto constitutional, I’d empower the senate to vote no confidence on cabinet-level (and maybe certain lower-level) positions, and I’d empower the senate to invalidate executive orders with a supermajority.Report
You do realise that French system is dysfunctional right? French laws are in need of reform especially with regards to labour regulations. Their unemployment levels are high. Yet, reform is difficult even when neoliberals (relatively speaking) like Macron come to power.Report
Yes, positively exhausting…Four months after he was elected for Macron to propose the ordinances, and two more for Parliament to adopt them.
Freed him up for a solid 8 months of World Cup prep. What he does for the next 3.5 years I have no earthly idea.
I’m wondering if the the French will now discover that it is a lot easier to give up sclerotic labor laws than it is to make them…Report
p.s. Creation date of his new party En Marche!* April 6, 2016. One year before the elections.
Their system had the wherewithal to pivot in the face of electoral challenges from a minority party with a ceiling and away from “sclerotic” party brands (of which we note there were more than one) and create a new coalition one-year in advance of the elections? If we’re saying sclerotic parties are dysfunctional, then isn’t En Marche! and example of a system that allowed for a rapid response to changing electorate an example of Eufunctional?
* somewhere a forlorn [!], associated with another politcal actor, is rejoicing.Report
All right fair enoughReport
The question is what took them so long?Report
To muster the political will to change labor laws?
Hard to say… one person’s sclerosis is another person’s fair market labor solidarity.
Also, I’m not 100% sure what the break-down might be of people who voted for Macron for Labor law changes vs. people who voted for Macron to avoid Le Pen. There might be some non-0% who avoided Le Pen and got Labor reform they didn’t want.
In any case… the electoral process in France certainly allows for multi-vector cleavages (good and bad) and even allowed for a rapid realignment in a mixed Presidential/Parliamentary system… which is the crux of the current discussion.Report
I’m all for criticizing the French, and while I don’t know as much about French governance and you and Marchmaine do, I’ll stipulate things are dysfunctional. But to that, I’ll make two points.
1. It’s not clear to me that the dysfunction you describe results from, comes in spite of, or is incidental to the mixed French presidential-parliament system. It seems that some other European countries with Westminster-style systems, like Spain, have similar problems. But perhaps that’s apples to oranges.
2. I don’t make the proposals I do because they’re French. I’m just acknowledging that my proposals would move the US to something more similar to the French than it is now. I don’t particularly find French governance or their last 230 or so years of history something to be emulated for the sake of emulating it. I am hopeful, however, that giving our legislature more formal power over the executive branch might help curb current, actually existing abuses and dangers. It’s quite possible I’m wrong. I haven’t really played through all the likely unwanted consequences.Report
The American counter-majoritarian system is failing if it ever worked in the first place. Its based heavily on norms but if one party decides that it can play Constitutional hardball and not respect the norms like McConnell did during the Obama presidency when it came to judicial appointments and other matters when the Republicans had control of Congress. Furthermore, we see that the Republican Party is intent on using every tick in American politics from gerrymandering to judicial review in order to prevent liberal governance. Even on state and local level, we have Republican legislatures cancelling out the acts of Democratic municipal governments within the states. In short, counter-majoritarianism is being used a justification to keep Democrats in the minority position despite Democratic politicians receiving the biggest percentage of the vote.Report
The counter-majoritarian system has become a system of minority rule, often backed up by rhetoric that suggests that the interests of the majority are not only being checked (properly or otherwise) to protect the rights of the minority, but that the majority’s interests are inherently illegitimate.
The Democrats, the next time they’re in power, should adhere to the principle of doing unto others as they would do unto you, but doing it first. It’s worked out brilliantly for Mitch McConnell, after all.Report
Counter-majoritarianism tends to work better at protecting high-status and powerful minorities, the wealthy, over that of low status minorities like racial minorities or LGBT people.Report
“Furthermore, we see that the Republican Party is intent on using every tick in American politics [like procedurals such as the passing of the ACA] from gerrymandering [Maryland for instance] to judicial review [we see this right now with the pressure to get Kavanaugh out of the running] in order to prevent liberal governance.”
They do this because they thing Liberal Governance is destructive, much like you think so of Conservative Governance. Like I said above, full contact sport.Report
If only it were possible to make judgments about the individual cases. But BSDI explains everything. We know everything is always equal, there are never any differences.Report
Well, I am a Libertarian, so yes, BSDI does explain much to me. I can see why it wouldn’t to any partisan. I can give more examples of such bulls***ery that gets ignored by one partisan group or another (its TOTES ok when we do it, what we want is most best!), but you kinda make my point for me.Report
Everybody has biases and filters. BSDI is just as much a bias as any. There are certainly things both sides do that are fine, some that are over the line and there are things one party has done that the other hasn’t. Not every situation is equal. Staring with BSDI is allowing your own biases to pre judge the situation.
Each issue needs to be looked at individually for it’s truth and context.Report
“Each issue needs to be looked at individually for its truth and context.”
Indeed, and that is why I showed the flaws in Lees comment. If gerrymandering is bad, then it is bad no matter who does it. If procedural tricks are bad, they are bad no matter who does it. If blocking judges is bad, it is bad no matter who does it. If you think Borking was the right thing to do, then the other side is going to do something every bit is onerous. That was the whole point of the OP.Report
Borking is fine.
If the GOP had held hearings on Garland, and then voted him down because his views were unacceptable to them, there would be little cause for complaint.Report
I agree – they should have let him have “his day in court”. There would be less to complain about in terms of changing the rules.Report
Indeed, they Biden Ruled him. This might not have worked, and it could have resulted in political suicide. That it didn’t says that the people were OK with it.
Borking also could have resulted in this, as they used procedure to get what they thought was important. This is politics. It is a full-contact sport. Should you attempt to do this when the time comes? Absolutely. Just be prepared to pay whatever political price comes due.
No tears in the meat grinder.Report
I suppose we should just accept Trump’s outright corruption and apparent collusion wth Russia as well, instead of complaining about it, since that is also just GOP norm breaking in pursuit of the judges they want.Report
Nominating Robert Bork was itself a norm violation. Whatever his judicial philosophy, his involvement in the Saturday Night Massacre should have disqualified him from public office.Report
I disagree. Part of “Borking” is labeling a distinguished jurist a nazi to justify a vote the Senate decided before he sat down. That path has the GOP trying to pretend Garland deserved having the poop cannon used on him and someone without his “flaws” would have been fine.
This was cleaner, let Garland walk away with his rep intact, and focused blame where it belonged. I like people taking responsibility for their actions, there should be more of that.
IMHO a lot of the anger is the GOP didn’t pay a political price for what they did, just the opposite. The GOP wasn’t rebuked. The Garland stunt was levered by Trump into him becoming President.Report
Crimany. Bork was a controversial nominee when he got his judgeship. Should we review the history of the Saturday Night Massacre? When other, better, men refused to fire the independent counsel when Nixon ordered it Bork said “Yup sounds ducky to me.” He was willing to support Nixon trying to get the cops off his back when they were getting close. Distinguished my posterior. People criticized him just getting to be a judge. There we far more to Bork going down then anyone seems to remember. That doesn’t get into his actual views which were pretty far out.Report
If memory serves, they didn’t reject him for his views, but rather a misrepresentation of his views. Bork was effectively a Scalia. Garland still has his halo so it’s easy to think it wouldn’t happen.
They also increased the brutality and viciousness of the process a lot.Report
Well many R’s on the judicial committee voted against him along with the D’s. There may have been many reasons for that. But the conservative story about poor Bork being tarred is a misrepresentation of the issues at the time.
There was also plenty of bile in the water before Bork. Plenty.Report
You wouldn’t believe what Republicans said about Ted Kennedy.Report
You wouldn’t believe when i first heard R’s call D’s traitors. I think i was 16 or 17. I’m 52 now. And i know i didn’t hear the absolute first instance of that thing.
Nasty name calling has been going on for a long time. Calling out Bork by R’s has been used as a reason why it is okay them to go for the poo cannon. People can always find a reason to go nasty if they want. If it wasn’t Bork it would be something else. It’s an excuse to do what they want to do. We would be better off with people finding reasons to be better instead of worse.Report
None Dare Call It Treason was published in 1964, and became one of the bibles of the Goldwater campaign. Not that that was the beginning either: there was the John Birch Society back in the last 50s, Joe McCarthy starting in 1950, and Nixon starting with his first campaign in 1946. “Deomcrats are traitors” goes way back.
Ironic considering our current traitor-in-chief, of course.Report
I wonder what Ted Kennedy would have thought about Trump’s colluding with Russia.Report
Whence this obsession with Ted Kennedy?Report
We’re talking about Bork, we’re talking about colluding with Russia…
You want nostalgia? There’s a scandal with a secret deal between an unfriendly government and Oliver North!Report
The people writing the Matrix aren’t even trying anymore.Report
They’re testing in prod.Report
6 Republicans voted against Bork, based on his actual writings: e.g. opposition to the Civil Right Act and believing the 1st Amendment only applies to political speech. His firing of Archibald Cox and the complete asshole he turned into in later life just complete the picture: extremist judge, bad human being.Report
Let me guess, Blue State politicians who didn’t want to defend a vote in favor of a baby eating nazi? (:Pause to look it up: Sure looks that way from reading the roll call). I suppose the 2 Dems who voted in favor of him were acting politically, not ethically. This was a party line vote with a few meaningless carve outs, exactly what we expect for all of Trump’s.
For examples where both side unite to reject him see G. Harrold Carswell and/or Clement Haynsworth, Jr. Both rejected with double digits of both sides and neither could have sunk him without the other.
Bork’s big crime was to be a Conservative Judge. We’ve got 5 of them on the court right now (similarly we’ve got 4 Left Wing Judges). The Dems in the Senate (Kennedy specifically) shifted from scholarly reviews of competence to stopping people because they were members of the other team. 1987 was the shift from the President getting his pick unless both sides decided this was a bad idea, to the President getting his pick only if he could force it through. Just a year earlier Joe Biden (Dem head of the Judicial committee) gave his support to Bork’s appointment to the Supreme Court.
And 5 years later Biden pointed out the then-Dem Senate wouldn’t give Bush-1 his choice in 1992 because he was going to face election (the Biden rule… although presumably that was only supposed to be used against GOP presidents facing a Dem Senate).
Garland was Bork was the new normal back in 1987. Before that neither of them would have happened. To be fair to the Dems, the overarching issue was how important the Supreme Court was/had become. No matter how qualified the Jurist, the Dems weren’t going to cooperate in overturning Roe. They could up their game and “Bork” candidates or let people like Bork get on the Court and at some point hand Roe back to the states.
Speaking of conservative judges, instead of Bork, we got the very conservative Anthony Kennedy, 97-0.Report
If Kennedy were “very conservative” by conservative standards, then there wouldn’t be all this wailing and moaning from the Left on how the Court will shift Right with him stepping down.Report
He is known for a few 5-4 decisions. None of them were particularly predictable when he was nominated. The main differences between Kennedy and Bork were:
Bork’s radical views of, e.g. the First Amedment
Bork’s reputation as a bomb-thrower
I know that Bork’s getting a full hearing and losing a non-party-line vote is supposed to explain why not giving Garland a hearing is just fine, but I can’t see it.Report
Kennedy supporting Roe was a LOT more likely than Bork doing so. Ditto all those other decisions.
In that review of Bork’s views, I didn’t see anything which stood out as odious (I am not a lawyer and this is not my field).
Granted… but I’m not sure that’s a bad thing.
Also granted, and a bad thing… but not why Team Blue was going after him.
Biden explained the justification (i.e. the politics) of it a few years after Bork.
His mistake wasn’t making the Rule btw, his mistake was spelling it out. He should have kept his mouth shut. Both sides understood exactly what they were doing and why, and under what circumstances it’d come about. All of these are forced moves by politics.
The GOP wasn’t elected to help Obama flip the court. The Dems weren’t elected to get rid of Roe.Report
Was the GOP elected to destroy the Votings Rights Act? Other way around, I think.Report
This has been floating around in the back of my mind since I read the original @mark-kruger article. His suggestion that we just wait for the pendulum to swing back is a lot less reassuring when the norms being violated by the GOP go directly to winning elections. The Supreme Court, deliberately or not, made an awful, norm violating decision in Shelby County, and then Republicans in Congress didn’t fix the Voting Rights Act.
And by keeping Garland off the Court in favor of Gorsuch, they ensured that further efforts on the parts of states to suppress the vote will get a green light regardless of what the Constitution said.
Of course, it doesn’t stop there. You also have the Russians ratfucking the Presidential election on behalf of the GOP candidate, and remarkably little interest from that President in preventing such things from happening again. Indeed, said President has violated numerous norms to praise the Russian dictator, has interfered with the investigation into the Russian meddling, and may well have colluded with the Russians himself (some people in his campaign almost certainly did).
So on top of a bunch of anti-majoritarian Constitutional structures that consistently cut in favor of the Republicans (electoral college, Senate apportionment) there are extra-constitutional measures (gerrymandering, voter suppression) and even criminal conspiracies aimed at getting the GOP the
electoral outcomes they want, preventing the pendulum from swinging.Report
Yes, exactly. The Court is going to be GOP for decades and is going to to its best to ensure the elected branches stay GOP, at the same time that the DOP becomes even less principled than it has been these past twenty-odd years.Report
There is no pendulum, no arc of history.
Changes only happen when millions of people work and fight ferociously to make it happen.Report
My job involves mathematical models of the populations of whole countries, using systems of differential equations that have some family resemblance to the equations of motion of a pendulum. I think the model or abstraction in question is subject to doubt and surely partly wrong, but the kind of model can be a useful tool to understand things.
And the pendulum model (or metaphor, I suppose) is not as reassuring as all that. Pendulums can do a ton of things, including swing about wildly and unpredictably, or even shake themselves to pieces. The orderly swaying back and forth is not a given.
 Vastly more complicated, though.
 Things in this case being the way those millions of people working and fighting ferociously behave in aggregate.Report
My comments via phone are usually more terse than on my laptop.
I was agreeing that waiting for the pendulum to swing is aggravating, with the assumption that either:
a) We are detached outsiders who will suffer no consequences or;
b) That the arc of justice somehow just moves by magic without the aid of human effort.Report
Let me try to defend a Whig theory of History. This will consist of two claims
1) The arc of history bends towards minimax-ing dissatisfaction.
2) The system of government that minimaxes dissatisfaction is liberal welfare state capitalism.
Premise 2) seems rather intuitive to me but we can haggle over the details later if you want. Let me instead focus on 1)
To see why 1) is true, it would be helpful to model political change in a society. Political change can come about as a result of a combination of endogenous and exogenous factors. Exogenous factors can be treated as events that remove the current government from power. These could be things like the death of the ruler or the end of a term in office. Exogenous factors of political change engender opportunities for political change without affecting the direction of change. Endogenous factors engender opportunities for political change as part of an effort to effect political change in a particular direction. For example, during revolutions or when the president is impeached. The dissatisfaction over the previous leader which triggers the revolution or impeachment proceedings also influence what the next government will be like. Even when exogenous factors trigger opportunities for political change, it is those endogenous factors which can kick in and influence what direction the change will be in.
What concerns us is the overall direction of change. Therefore, we’ll concentrate on endogenous factors. On average, the amount of effort people will put into changing the government is proportional to how dissatisfied they are with the current government. Intuitively, we might imagine that these efforts can sometimes become strong enough to result in an attempt at revolution or impeachment. Or, even when the political term is nearing its end, such efforts that people will put into selecting the next leader will be influenced by how dissatisfied they were with the previous leader.
Now, I am not claiming that the relationship between dissatisfaction, effort and direction of political change is simple. There are a lot of intervening factors. But these other factors just add noise to the system. They make the arc of history bend more slowly towards minimaxing dissatisfaction. We can imagine that over time, arrangements which minimise the maximum dissatisfaction that any one person feels will be free from from particularly intense efforts to change. Sometimes we might get worse candidates, and this might cause a temporary departure towards increased dissatisfaction, but slates of bad candidates are not a permanent feature any liberal-ish political program.
What this tells us is that so long as we our confident about how well our political program answers to the demands people make on one another, we need not freak out over any short term deviation from justice like Trump.Report
The years between 1914 and 1950 were a short term deviation.
But for about 50 million people, it was a permanent one.
I’ll continue my freakout, thank you.Report
We’re hardly at the point where we need to worry that anything like Nazi Germany is going to happen in the US. Dialling everything up to 11 all the time means that you lack the emotional resources to really resist when things really look to go bad.
Now it seems like the feedback mechanisms and checks and balances are working.
For instance, now that people know what enforcing the border looks like, support for amnesty and increasing legal immigration looks to improve.
Trump can’t go crazy on every issue. He has to pick his battles. And his craziness on this issue has not been an unalloyed success. He has met resistance. He has had to moderate or walk back some of his claims. Sure, Trump is worse on this issue than Rubio or Jeb Bush would have been, but I think the whole fiasco has served as an object lesson.
And if the whole Russia thing plays out the way I hope it will, that would discredit Trumpism.Report
AFAICT, dialing things up to 11 is one of the feedback mechanisms that makes checks and balances work.
And generally speaking, it’s very unlikely that someone is going to be too mad to vote.Report
But pointing out the parallel to historical genocides is (in part) exactly what the automatic resistance looks like! It’s like saying “Nobody likes dirty dishes. Nobody! Therefore it’s silly to waste energy cleaning them, because, given their unpopularity, dishes don’t stay dirty for long.”
Also, the point isn’t that it’s now the Holocaust, but that all the signs are in place for trending in that direction. The current situation is the boy crying wolf when the wolf is a mere cub (or practically adolescent, at least a year old). He is naturally met by dozens of people decrying the comparison of a mere cub to the sheep-killing machines that are wolves. “Look, when an actual wolf shows up, I’ll be the first to stop it, but in the meantime, cut out the hyperbole.”
Finally, I’ll grant that the whole comparison may be totally baseless. But it remains the case that children and babies have been essentially tortured — not only taken from parents, but forcibly injected with psychotropics, deprived of hygiene, etc. The political unpopularity of this doesn’t cancel out the evil — that’s like a democracy-related version of faith in the market’s invisible hand. And part of that unpopularity is manifested by describing the issue as it really is — we don’t snub a boycott of some horrible company on the grounds that horrible companies are going to suffer market losses “anyway”.Report
I dig your cub-wolf allegory (nice!), but I’m not sure you can really energize people until they feel pain enough to move.Report
I’m not saying do nothing. Certainly, Trump certainly doesn’t have the benefit of the doubt on immigration. I’m saying that we do not have to always be on our guard against totalitarianism. The system seems to be working. When we encounter an authoritarian like Trump, we push back. We don’t have to fight ferociously for every change. We just have to do what’s necessary when it’s necessary. I’m calling for calm measured responses. So, people should be really pissed about what’s happening with immigration and Trump’s foreign policy blunders. But people seem to be losing their shit over Brett Kavanaugh. There’s no way a Roberts court will overturn Roe. Even if Kavanaugh was the median vote on the issue, Roe will not be overturned. Even if Gorsuch is the median vote on this issue, I doubt Roe will be overturned. We can probably guess that Thomas will overturn Roe since he dissented in Casey. We don’t know if Alito will overturn Roe but there is evidence that he could go either way. What it will take to overturn Roe is for Alito to be the median justice on this issue. And that is unlikely.Report
This is not obviously correct.
(Which is not to say that it is obviously not correct.)
I think it’s probably the way to bet, but it’s not like the Roberts Court hasn’t surprised my in bad ways in the past.Report
I happen to agree with both of you. The Roberts court, specifically Roberts himself with his ACA judo ruling that he seemed to come up with out of whole cloth, is not going to be a stone cold lock to do anything. But I think Roe is not getting overturned. IF, and that’s a big if, the reporting is true and the media and peer pressure flipped Roberts on the ACA things, imagine what would be brought to bear with Roe standing in the dock. If he wobbled on legacy then, no way he enters history as the court that took down Roe. Speculation, but if the reporting is true then I don’t seem him pulling the trigger what would be the most controversial court decision in at least a generation if not longer.Report
I disagree. Assume that Trump gets another Supreme or two. Sooner or later Roe goes. Roberts would rather vote with the majority and make that ruling 6-3 or 7-2 than be outvoted 5-4.
I think Roe would have been stronger if it’d been better linked to the Constitution. One of the really problematic parts about Roe is it’s less a Constitutional interpretation than the desired policy of the Supremes at the time. First Trimester has these rules, 2nd has these rules, 3rd has others.
From my point of view they blinked. They wanted to preserve the gov’s ability to meddle so they didn’t bite the bullet and say that if a fetus isn’t human, then the woman can do anything she wants the entire time.
If the fetus is human, or becomes human, then AM 13 applies; Humans aren’t allowed to enslave other humans, even if one of them is a fetus. And in that case the woman can STILL do anything she wants the entire time.Report
I find it hard to believe that the Court would overturn Roe on a 5-4 majority. Nothing would do more damage to the Court’s reputation than a ping-pong game on abortion. So I don’t think it’s about five passionate votes; it’s about six or seven willing votes.Report
Roe doesn’t need to be overturned, just gutted of any meaning.
As it is, right now, in some states there is only one remaining clinic practicing abortions.
Several states have teed up ever more restrictive laws such that while Roe may be retained, it can overturned de facto by closing down those last remaining ones.
Remember, the goal here is not a complete 100% blanket prohibition, but to make abortion a highly restricted privilege for the very few, and controlled by men of means and influence.Report
Do you think that’s anyone’s goal?Report
Yes I do.
That is how it was pre-Roe, when people like Barry Goldwater drove his daughter across state lines to get her abortion.
Abortion was always available, but women, even wealthy women, needed the permission of men to get one in safety.Report
That’s silly. Women were able to procure legal and illegal abortions pre-Roe. And Barry Goldwater doesn’t represent any contemporary pro-lifer’s ideal. You might think that the result of an overturning of Roe would be control by rich men, but you can’t claim that that’s anyone’s goal.Report
Its the only theory that explains all the facts.
If reducing abortions was the sole overriding goal, then contraception would be given away like candy, subsidized and promoted like the lottery.
If abortion was actually murder, then wealthy men who pay for their mistresses to get them would be shunned and reviled, instead of given mulligans and voted into office.
In Arkansas, in 2017, a law was passed requiring women to get written permission from the father (even if it is a rapist) to get an abortion.
Pre-Griswold, AKA the good old days, women needed written permission from their husbands to get contraception.
I don’t know what goes on in people’s heads. I just know what they do and draw conclusions accordingly.Report
When other people get abortions it’s because they’re weak willed, are being deluded by someone, or are making selfish choices. With me personally it’s for non-trivial, more important reasons.Report
“If reducing abortions was the sole overriding goal, then contraception would be given away like candy, subsidized and promoted like the lottery.”
I don’t think any policy is anyone’s “sole overriding goal”. You wouldn’t see an environmentalism closing down schools because they use electricity; you wouldn’t see a war hawk using hospitals as target practice for bombers. People have a set of beliefs each of which they rank in importance. There are some fairly common sets of beliefs, though, and you’ll often find that people who are pro-life also tend to not want the government to subsidize anything.
Beyond that, there’s a good argument that the secondary effects of promoting safe sex actually result in an increase in pregnancies.
Beyond that, contraceptive are actually given away like candy, in the sense that you can find a bowl of them in a doctor’s office, or buy 10 for $2 at the pharmacy.
“If abortion was actually murder, then wealthy men who pay for their mistresses to get them would be shunned and reviled, instead of given mulligans and voted into office.”
I assume you’re talking about Scott DesJarlais. Shocking case. Who else?
“In Arkansas, in 2017, a law was passed requiring women to get written permission from the father (even if it is a rapist) to get an abortion.”
I found an article in which Planned Parenthood described HB1566 in those terms, but the text of that law didn’t contain any such thing, at least from what I could tell. Can you back up their claim?Report
I hear that same argument from pro-2A folks, and people tell them to stop being silly, that’s never gonna happen.Report
That gun owners being stripped of right to own a gun, is equal to women losing control of her own reproductive health?
You can’t see the difference, really?Report
Have you seen my guns? You’ll have to separate them from my cold dead shoulders. Hell yeah there’s a difference.
Speaking of guns, I make no gains watching y’all talk in circles so I’m off to make arms great again.Report
I see a desire for certain rights to be restricted to the point that exercising them is such a chore that only the most privileged or desperate attempt to exercise them.
Guns or bodies, either case, it represents a right that can’t be attacked directly, so it’s attacked indirectly.Report
Yes, ok, but lets imagine the worst case scenario for both.
Where both your ability to buy a handgun, and a woman’s ability to control her reproductive life are both highly restricted privileges.
Do you see these as equally infringing on the flourishing of the human person?Report
Depends on what is the worst case. If the worst case for abortion is that it is highly restricted, but reliable female birth control is as easy to get and use as, say, Sudafed, then control is maintained, is it not?
Now, if it’s a case of tight restrictions on abortion AND tight restrictions on female BC, then control is clearly not in a woman’s hands (because she needs someone’s permission to get and use BC). In the states that have systems approaching this, you have a valid complaint.
Now, me being a libertarian, my preference is everyone needs to mind their own fishing business and what a woman does with her body is between her and those she chooses to share those decisions with.
 I specify female, because I know some folks feel that the OTC status of condoms is a sufficient condition for this to be met. Obviously, I disagree.Report
@oscar-gordon The most reliable forms of female birth control are between 97-99 percent reliable.
Which sounds great until you think about how often people have sex in any given lifetime.
I know 3 close friends and a dozen more less close friends who’ve had birth control fail (hormonal pills, IUD + spermicide, a nuva ring, a person who shares significant DNA with me was both using hormonal pills AND a condom; another person who shares significant DNA with me had a failed tubal ligation) – and these are just the people who chose to *tell me about it*. All of them were well educated about their bodies and using their birth control correctly. I’m sure there are plenty more who haven’t told me about it, it’s a pretty personal thing.
Some of those women chose to have an abortion, some of them chose not to, and one of them was wracked with agony about her choice to have one even though it was *medically necessary* and she (more than 99 percent likely) wouldn’t have survived the pregnancy.
Everyone of them is rabidly pro-choice, and even more so post-abortion-decision (even the folks who chose not to have one).
I realize you don’t object to them being allowed to make their own decisions, in fact you prefer it — but I also think a lot of people trust birth control a lot more than I would recommend they do. So I try to communicate that “reliable” is a relative term whenever it comes up.Report
FWIW the generally quoted effectiveness rates are per year, not per sexual encounter. So it already (theoretically) accounts for how often people have sex. The factor that makes that high-sounding reliability number less reassuring is how long people are typically sexually active in their lives.
Someone who’s sexually active and able to get pregnant for 20 years, using a birth control method with 95% reliability, only has a 0.95^20 = 36% chance of not getting pregnant at least once.Report
All true (and things I am aware of). However, the question is one of, does it significantly impact the ability of a woman to flourish?
What if Morning After pills were added to the BC mix?
Let’s also add to the mix the risk factors for a surgical abortion (last I checked, those are non-zero).
Finally, we’d have to look at what the actual restrictions on abortion were. Are we talking blanket ban, or limited to rape, incest, life of the mother?
Hell, what if we’d managed to create an actual welcoming society for pregnant women (work rules and cultures that actually prevented discrimination against pregnant women)?
What is the requirement for flourishing?
And yes, at some point I will probably run this all back to the 2A, but before I do, I wanted to flesh out this idea of what constitutes the flourishing Chip suggests.Report
Flourishing is like liberty or the pursuit of happiness; there isn’t a pat legalistic definition, but it is that general sense that we are enjoying our lives as fully developed human beings.
My point is that restrictions on reproductive services are intrinsically intrusive and curtailing of liberty, in a way that restrictions on guns are not.Report
For you maybe, for people who own guns, they might beg to differ, considering that violations of those restrictions often result in felony charges, regardless of intent.
I mean, sure, on the one hand, you can’t easily get an abortion, and on the other, you go to prison and get a felony record for making a paperwork mistake.
I can do this all day.
A right is a right because someone thinks that particular liberty is awful damned important, even if you don’t.Report
For me the difference is that one’s uterus is inside one’s body, by nature – literally part of one’s body – and thus rights over it and its functions should trump any kind of a right to things that are not inside one’s body. And even trump any rights that other entities might have while inside it (that latter being, as abstract and etc as it sounds, basically why I am not still anti-abortion in philosophy as I was as a kid).
Much as I would say one’s right to autonomy over one’s breasts or femur or heart trumps other rights.
It doesn’t make the other rights go away, or not, it just makes abortion part of bodily autonomy and other rights not.
So it makes little sense to me to analogize between the two.
(My libertarianism, being the Canadian leftist type, is grounded in bodily autonomy, not in property rights as most American variants are. It rarely makes much difference but I suspect this is one of the cases where it does.)
I’m not 100 percent sure that there is an absolute right to a healthy, safe abortion, but given that I believe there is an absolute right TO the abortion (even as I would not choose to exercise said right myself unless I was going to die and the fetus was unlikely to survie) … I believe it’s in society’s best interests to make sure that abortion takes place in a healthy and safe manner.
2A, to me, seems to be a legal right, not a founding principle of how humans should interact with one another.
It’s also the case that your maximal suggestion of what would constitute human flourishing in a world where abortions were restricted *does not currently exist anywhere* and I’m pretty sure it never will, so on some level I feel like you’re spinning a fantasy that is irrelevant to the question under discussion.Report
I don’t mean to analogize between the two, as such. Rather, for me, a right is a right is a right. Rights dealing with bodily autonomy certainly edge out property rights if I had to make a choice which to support, but we are still talking about rights. If, as Chip says, it’s dirty pool to attack abortion rights by making it extremely difficult to exercise those rights, then it’s dirty pool to attack any right in such a manner.Report
@oscar-gordon I’ll have to think on that. For me the fundamental right enshrined by 2A is not “own a gun” but “self-defense from violence and tyranny (including planning and acting against the possibility of such)” and 2A is merely the legal expression of the right in this one country at the time the constitution was written, not the exact description of the right itself.
I also think of rights as countervailing against each other rather than inviolate and separate. The reason why something inside one’s own body is so much more powerful to me is that there’s really nothing that can happen to already existing people* based on what you do inside your own body, in a way that doesn’t apply to, say, stockpilling guns.
* I see fetuses as existing in some sort of grey area where they do matter but they also can’t even breathe on their own, so they’re kind of in a mu state of possible person (something important, that I hold sacred), not people themselves. This is hard to express in Western frameworks but fairly common if you see how people act, collectively, about fetuses absent governmental pressure, or if you look at religious rituals in Japanese Buddhist temples, etc.Report
Exactly, and creating administrative and legal impediments to the ability to exercise self-defense violates the right to self defense.
As I’ve said before, should we develop a set of reliable, less-that/non lethal methods of self defense that are as effective for an 18 year as for an 80 year old, guns would begin to fade as an issue. Likewise, if there were reliable and widely available means of birth control and/or societal support for pregnancy, abortion except in edge cases would fade as an issue.Report
The Holocaust was a unique singular event in its breadth and ferocity.
But Nazi Germany was hardly unique. Russia under Stalin, Italy under Mussolini, China under Mao, Romania under Ceaucescu, Yugoslavia under Tito, Indonesia under Suharto, Argentina under the generals, Chile under Pinochet, apartheid South Africa, and on and on.
None of these were exactly the same, but all were similar enough what is happening in America to warrant alarm.
And I will repeat what I said elsewhere.
A fascist America, one where the government kicks in your door and drags you away to a concentration camp is only a freaky science fiction if you are a white Christian male.
Because for black people, Natives, Hispanics, Japanese and others, it is an actual historical reality. It happened, right here, within the lifetimes of people still with us.
There is no magic cloak that protects us from having it happen again.
Unless we get angry, and defiant.Report
Does the word “fascist” belong in that comment?Report
The “killed in the name of Socialism” numbers are an order of magnitude or two greater than the others. Argentina killed 60k. Hitler/Mao/Stalin killed 25-70 Million each.
It’s easier to scream wolf than create one. The current bodycount is something close to zero, where it’s non-zero the people involved are arrested. The number of ignored court orders is zero. Court packing threats are coming from the Left, not the Right.
Trump, for all his vileness, isn’t running the system over a cliff. He’s a one man band or a bull in a china shop, not a grand movement determined to kill it’s way to create a socialist utopia. Under Trump if feels like we’re a lot closer to one of these historical tragedies than normal, but that’s not the same as actually being close to tragedy. In the US, the courts are opposed to these sorts of crimes and no one is moving to disable that or disobey the courts.
My expectation is we’ll walk away from the Trump Presidency with a body count of zero and the next time the GOP threatens to take over we’ll still see these doomsday predictions again. As for the oh-so-moral Dems who need to be in office to prevent genocide, we might ask Bill Clinton about Rwandan.
There are lots of reasons to oppose Trump, but preventing genocide isn’t one of them and claiming it is plays into Trump’s hands. Hitler comparisons makes it look like you don’t have a serious argument.Report
“with a body count of zero ”
Too late for that.
(Feel free to argue “with an additional body count of zero” or “a non-military American citizen body count of zero”, but there certainly is blood on American hands that was spilled in the last year, I doubt there’s a good argument to be made that there is *less* blood on American hands than there would be without Trump, and the body count number is not zero at all. Leaving aside whether that blood should have been spilled or not, I think it’s just important to remember *it is being spilled*. We’re at war for fishsakes.)Report
I’ll amend that to “body count of zero from Trump’s various *isms and other personality flaws”.
The US is always at war, Trump gets a pass for that unless he actually starts a war and (to his credit) he doesn’t want to do that. He’d rather make money than war.Report
Which is why I didn’t.
We aren’t headed for a genocide yet.
But the other forms of tyranny, like the list I gave, are entirely possible.
Once again, if you have brown skin and a Hispanic surname, the body count stands at thousands of children ripped from their parents arms and a pall of terror over the very real fact of government agents coming to your door in the middle of the night.
This is not the future. This is happening right now, right here.
And also once again- even in the middle of any one of those awful dictatorships, there existed people like you and me, who easily went about their daily lives completely untroubled by the actions of the government and who laughed off the reports to the contrary as hysterical propaganda.Report
If you’re pulling out the three largest mass murderers in history, then you’re making a genocide argument.
Is it possible? Can we have a “tyranny” here without new laws being passed?
“Body count” means “dead bodies”. Trump was forced to stop (right before the GOP made him stop) and the gov is reuniting people.
This was a mess and an unforced error (if we want to call it an error). But in a real “tyranny” that kind of thing would go on for years or decades, not hours or weeks.
No one is laughing off what the gov is actually doing, it’s the predictions of Hitler level mass murder based on a policy that’s stopped that hits the radar as hysterical propaganda.
Trump is plenty awful without his deeds and competence being exaggerated all the way to Hitler/Stalin/Mao.Report
Yes. It not only can happen, it has happened here in America.Report
:Sigh: I can’t disagree with that.
With various small-Southern-Banana-Republic towns we even still have it.
Well… keep Trump under a microscope then. The good news is his people will obey direct Court orders. The bad news is there really is no bottom there to how far he’d go without that sort of thing.Report
The VRA was reauthorized in 2006. Granted both sides voted for it, but it was under Dem leadership that they blithely assumed “no one will have a problem with the grandson of a racist being assumed to be a racist”.
Also granted Shelby County was in 2013 and it hasn’t been fixed yet, but that’s not a long time for this sort of thing.
To what degree is this an issue now days? My impression is the lion’s share of the problem is in gerrymandering.
How much did they spend on “illegal” ads? I’ve seen reports of $100k on facebook and I’ve also seen reports of several million. A few million out of the $5 Billion puts us at a fraction of one percent.
The bulk of the damage was them publishing HRC’s various email issues. But considering how much help they had from HRC (and Trump, and HRC, and the media, and HRC, and the FBI, and HRC) I’m not sure if we should be counting that.
History will call him President Troll. Violating numerous norms means it’s a day ending in a “y”.
We’ve had a Democrat Super-Majority within the last decade. The swing down from that was bound to be impressive. If HRC had won, how much of this despair would be out there?
The pendulum will swing, if for no other reason than these grand coalitions fall apart because of their internal conflicts and/or they’ll succeed.
Money! will want more Money. Guns! will be involved in a mass murder and/or want federal restrictions against gun control. God! will either be told they can’t overturn Roe, or (worse) will actually do so. Moats! will rip apart families and/or tank the economy… and is actively convincing legal immigrants that they’d better damn well become citizens so they can vote against Moats!
All of these factions will be appalled at the behavior of the other factions. Trump and his cronies will get caught doing corrupt things. Trump will tarnish the reputation of EVERYONE else who touches him.
I suspect Trump will be in there for 6 more years, but he’ll face a hostile Congress for a lot of it and will look very old and tired when he steps down. We might be looking at another Dem supermajority in 6 years.Report
Republicans controlled both chambers of Congress until January of 2007 (the election happened after the vote), it passed both chambers overwhelmingly, and was signed into law by Republican George W. Bush.Report
Ah. So it was the GOP who were idiots.
In other words, renewing the VRA had always been a given until a former GOP operative who’d always hated it become Chief Justice.
That gave McConnell an opportunity to move from the VRA being an important legacy of the civil rights era to it being a liberal plot to get in the way of GOP gerrymandering, and you know how excited he gets when there are norms to be violated.Report
In your opinion, how many decades need to pass before locational information about where racists have power becomes stale?
Is 50 years enough? You know, long enough so that NO ONE who was in power when the facts were established is still in power now?
70? That might mean everyone originally in power is dead.
Or does it take centuries before we can assume that data is stale? If so, how many centuries?Report
How about we look at what some of those states did after they were freed from pre clearance. NC put such regs that a Fed judge said they were designed specifically to hurt voting by POC. Do you want links? I know i and others have posted them before on this topic.Two or three other states got reprimanded for trying to negatively affect minority votes and that is leaving aside other things which have that effect but judges havn’t ruled on.Report
Yep. The son of a criminal can definitely be a criminal.
So how about Stop and Frisk? Can we Stop and Frisk the children of people we lock up? Still Constitutional?
After all, they’ve given us cause to think they might be criminals… or at least their parents did. Same thing, right?Report
I haven’t followed this as closely as some but I haven’t been particularly impressed with what I’ve seen.
Assertions of racism and racial impact are used to paper over logical weakness. To be honest, I don’t see this cutting much ice in the future with Justice Kavanaugh on SCOTUS.Report
North Carolina got demographic voting data and used that to change the times and places allowed for voting. Really, it was in all the papers.
And I agree, the whole point of GOP control of the courts is to subvert the democratic process.Report
Again, I haven’t followed this as closely as some (maybe as closely as you), but from what I’ve seen I don’t put a lot of credibility as to the merits of the final resolution of the NC thing.
AFAIK, the decision was that any kind of ID rule was discriminatory by impact and therefore racist, due to the historical legacy of legislative or other actions which also had disparate racial impact.
It’s a train of thought I’m not a particularly big fan of, and I’m especially not a fan of it here, where it seems to me there is at least an equally clear legacy of the partisan abuse of dirty elections on the part of one party, and the desire for clean-election laws on the part of the other party to prevent that, which has been conveniently ignored.
Also AFAIK, let’s also note that if the pre-Shelby-County preclearance rules were in effect, any attempt to harden the ballot/elections infrastructure against Russian hacking or any other outside threat would be presumptively illegal.Report
I stated exactly what North Carolina did. The funny part is this: they clearly targeted minority voters. Their defense was that no, they targeted Democrats. Not even a fig leaf of anything but trying to rig elections.
No, hardening things against hacking would not be illegal. At the most it would require pre-approval. Anyway, the House GOP just voted against that kind of hardening. Hacking is fine if it help them.
I’m not saying you’re wrong necessarily, I’m saying that as far as I can tell the lib partisans who have litigated this and the judges who have ruled in their favor have refused to accept, in theory or in practice, any kind of clean election reform that includes at a minimum some kind of credible voter ID requirement.
And for the lib partisans at least, that such people have in the past and intend in the present to benefit politically from winning dirty elections. So given that, I’m not likely to accept any factual representations from such people about what so-and-so did or what the effects of such-and-such a law are.
As far as counter-hacking by election authorities, that’s exactly what was banned by the preclearance regime before Shelby County. There’s nothing that said that a federal judge or the DOJ have to entertain any election logistics changes at all, and from what I recall they typically didn’t.Report
“Maybe you’re not wrong, but because you’re a lib, you’re actually wrong.”Report
Yeah. Not sure why I bother.Report
That’s a legislative question. It takes a certain motivation to make it a constitutional one. And it’s not as if there weren’t stated that had already announced they were going to make a lot of changes once pre-clearance went away. Including
the state that said “Let’s figure out where and when minorities vote and end that”.Report
If the State is allowed to use these “your grandfather” arguments, then why is it unconstitutional for the State to say “your grandfather didn’t vote, ergo you can’t”?
The word “they” does a lot of heavy lifting here. They are clearly guilty (and some of them actually are)… so imprison them all? Even the ones who aren’t their grandfathers?Report
Yeah, Hillary should have simply been charged with crimes related to her email. Instead the Dems blamed James Comey which is ridiculous, in fact a substantial reason why I ended up voting for Trump.
According to media reports, the FBI had at times over 100 agents trying to clean up her mess, which is the reason why Director Comey had so much pressure from below not to simply sweep the matter under the rug.
For whatever Donald Trump said to Putin in Helsinki, that one isn’t Trump’s fault.Report
This seems to conflate two things. They published hacked campaign emails that fueled a lot of angst (almost entirely unjustifiably, IMO), which is a separate matter from the email server practices scandalette. IMO, HRC deserves some blame for the latter, very little for the former.
The worst stuff was some staffers not obeying the New York Times rule.
And we’re beginning to learn there may have been more.
But when we’re talking about norms, and we are, even the creation of ambiguity is in and of itself a norm violation. Even if you believe that this is probably just Trump being his trollish, irascible, and thick-headed self, there isn’t much basis for certainty.
In this situation, Trump and his GOP enablers should be taking steps to make observers more, rather than less, certain that things are aboveboard and they’re playing fair with elections.
They’re doing the opposite.
I don’t particularly agree with the odds that Ross Douthat estimates here, but the reasoning around the ambiguity is, IMO, legit.Report
The Fish rots from the head. In Trump’s previous world, being in the papers for banging a porn star is a good thing. He’s not a professional politician and has zero experience behaving in ethical or discrete ways.
A lot of the people he brought in also have no experience. He made a bunch of risky choices, the odds that some of them would screw up was approached unity.
The normal problem with this approach is firing someone is traumatic so people shy away from it. Look at how Bush-2 waited FAR too long to fire Rummy. Trump… has no problems firing people. The Trump equiv of Rummy would have gotten fired MUCH earlier.
I do, and I agree, and it’s a problem. Trump is the worst person possible to deal with Russian involvement because he personally wants to believe that he won without any help, and his ego won’t let him admit otherwise.
The rest of the system will have to work around him. (A voice whispers seductively in the distance… “President Pence”…)Report
Sounds to me like God is a Republican and accordingly you should be supporting Republicans to be in harmony with His will.
As far as Shelby County and the rest of it goes, it’s comical to me that the Demos have all of the sudden started caring about clean elections when when heretofore all concern about that was supposed to be racist.
Finally, the Russians ratfucked John Podesta’s email (and that of several other prominent Dems). Trump won the election fair and square.Report
This is an idiotic straw man. Do better.
Ratfucking the other side’s email or other internal communications is a massive norm violation. Assuming, arguendo, that Trump personally had no desire for them to do so  and that his campaign wasn’t involved , he has consistently tried to hinder post hoc investigation, other Republicans have worked tirelessly to enable him, and they’ve all decided not to worry about future meddling.
This is the opposite of respecting the integrity of the process.
And it happens concurrently with Trump doing his level best to upend NATO and align us with Russia.
 We remember the analog equivalent as “Watergate”. Perhaps you’ve heard of it.
 Which is ludicrous. He asked the Russians to do it on TV.
 Which is also ludicrous given what’s been documented.
 Fortunately, he’s too much of a buffoon to use the powers of his office entirely effectively.Report
Trump’s desires on this point are more or less irrelevant. The point being is that if we believe the conventional wisdom of such things, ie that the hackers were largely or entirely Russian intelligence agents, then the hacking was not something that Trump or his campaign did.
As far as “future meddling” goes, I have the same intentions there that I did about the 2016 election. The point about maintaining the integrity of elections is about the security and integrity of the vote, not maintaining the confidentiality of Dem deceptions.
And it has to be said, that the D record on that point is very bad. To wit, that it has been the Democratic Party which has historically conducted and won campaigns with the help of election fraud, and at the same time have recently made a priority of stopping clean election reforms that would prevent that from occurring again in the future.Report
In 2006 Congress reauthorized the VRA by 390-33 vote in the House and by 98-0 in the Senate. I think that demonstrates where the GOP is at on this issue.
Let me ask you a question @mike-schilling
When Joe Biden came up with The Biden Rule, what do you think he thought he was doing and why?Report
I think he was talking without thinking too hard about what he was saying. For God’s sake, it was Joe Biden.
Nothing happened as a result of it, no one remembered it, and it sure as hell wasn’t anointed “The Biden Rule” until apologists for McConnell needed a talking point.Report
Biden was setting up a “heads I win, tails you lose” situation.
If Bush did have the opportunity to place a Supreme at the end of his Presidency, then the Dems (i.e. Biden personally) would block him and Biden could quote himself as having established a clear rule well before the fact.
If Bush didn’t, well then Biden was just jabbering. Clearly that rule doesn’t actually apply… as long as it’s a Dem President.Report
For all my issues with Scalia, at least he thought the First Amendment was a thing. Bork didn’t.Report
It was the Ninth Amendment that Bork referred to as an inkblot. I don’t recall Scalia having a particularly generous view of that amendment either.Report
I was exaggerating, but IIRC Bork believed that the First Amendment only applied to political speech, and he sure was a big fan of censorship.
Neither applies to Scalia.Report
Ah…haven’t reviewed Bork’s jurisprudence in years.Report
It would be like trying to review Ben Shapiro’s height.Report
That’s the caricature. Here’s a review of what Bork really thought: The First Amendment Jurisprudence of Judge Robert H. Bork
Judge Bork rejected the notion that the Constitution is frozen in time, and that it carries no meaning other than the specific applications that its framers envisioned for it.” “The fourth amendment,” he observed, “was framed by men who did not foresee electronic surveillance. But that does not make it wrong for judges to apply the central value of that amendment to electronic invasions of privacy.“‘”
…Several specific first amendment issues warrant further discussion: (1) free speech and press rights of broadcasters, (2) nonpolitical speech, and (3) religion. In each of these areas, Judge Bork is either as protective or more protective of civil liberties than current Supreme Court doctrine.
(Btw that review also goes over several instances of him ruling in favor of the 1st supporting speech which he presumably strongly disagreed with personally).Report
The article tries to gloss over it, but he remained in favor of censorship of pornography (and, it turns out, many other forms of speech).
He even wrote a whole book about how important censorship is.Report
That is unfortunate. That is also very common, so much so that it’s not “an extreme” view.Report
@aaron-david – Yes! Trying to maintain a fair playing field amidst the amount of heat that is currently circulating in the politisphere is no small task. 🙂
I would add here – each side (conservatives and liberals – we’ll leave libertarians out for the moment) have a very different idea of what sort of world they wish to live in. Each believes it has a corner on a morality. Moreover each has significant blind spots. All of the dumping on one side or the other as stupid, evil and subhuman merely highlights that fact.
These 2 “systems” work and draw large followings (a pattern seen world wide by the way) not because they manage it through some siren song of deception, but because they are attractive and internally consistent to those who subscribe to them. That’s frustrating for opponents who have a hard time believing it because their view is so different.
We waste a lot of ink and invest a lot of emotion trying to beat the life out of opposing views that are not going away and will always be with us. We have to stop treating each other like a disease and learn to live together. It will look messy and at times be uncertain, but it’s either that or we start killing each other – and that of course is always a temporary “solution” that makes things much much worse.Report
Well said, with the proviso that Libertarians have no morals, just a dog named Neitsche.Report
Ah! An Abyssinian no doubt?Report
Well, if it is my dog, aa little Llahsa/Napoleon named Barnaby. (The wife would never let me get away with naming a dog Neitsche.)Report
That’s it, next dog I get, I’m naming it ‘Abyss’, and teaching it to win staring contests.Report
Gosh, I wish people would get this straight. The whole Nietsche thing is just a misunderstanding of the original quote. The truth is:
Nietzsche was famously, tragically, in love with a nun. An abbess, in fact. Moonlit night, holding hands outside the rectory, gazing, deeply gazing. Inevitably, heart-break followed and thus, “beware.”Report
I agree except for “each side” part. Everybody has biases and filters. If you don’t identify with the R’s or D’s that doesn’t mean you don’t’ have them. Belonging to a small party or not being aligned isn’t some sort of superior thought process or being above others. ( that is often how it see it framed). People are people, we all have the same possible faults and pitfalls. There is no label that raises you above that. There are clear, low bias thinkers on the left and the right and all around. And biased people who only see what they wish on the left and right and all around.Report
Nice post Mark.
Would have liked to see it shortly after the election before TDS got up to full force. But, meh. Now that the GF is away for a month, I can spend more time with my very liberal friends and get a good chuckle. Once of them actually used the term “retrograde”–that was to describe anything south of northern virginia, between the coasts and particularly between texas and florida. It’s funny what you hear when you “present liberal/conformist” 🙂Report
I agree with your post overall, but I think I disagree with what I take to be your support for the filibuster rule. I’d like to see that rule go away.
I apologize if you’re not necessarily expressing support for that rule, and I agree with your analysis of how altering that rule for temporary expediency has come back to bite the Dem’s. And I believe in veto points in general, just not the filibuster.Report
I do think rules that require super majorities are to be preferred in our system yes. What we are missing is the “good faith” rule that keeps it form being abused. But yes, overall in favor as it slows the pace of change.Report
The problem with so-called “good faith” rules is that as soon as something “really, really, really [ad infinitum] important” comes along they immediately go down the tubes. This is the same as “decorum and precedence.” To be used only to keep their side from getting anywhere, but not so important as to not be dashed as soon as your side gets stymied. As I have pointed out elsewhere in the thread, people will cast a blind eye to their side while screaming bloody murder about the other side doing the exact same thing.
What gets lost in all of this is that needs and wants change over time, but the game doesn’t.Report
This excuses all norm violations with “Everyone else would have done this too”. That’s nether wholly true nor a good set of incentives.Report
That isn’t the right way to look at it though. The right way would be “is it worth it to break the norms to ensure black folks are able to sit at the counter.” Because if you think something is important enough then the norms don’t matter.Report
“Is it worth changing the relationship between the Senate and the presidency forever to get one more Supreme Court seat?”
No one had ever said yes before 2016, and for good reason.
“Is it worth changing the relationship between the Supreme Court and the presidency forever to get my guy ‘elected’?”
No one had ever said yes before 2000, and for good reason.Report
I don’t think this is very credible. There’s no shortage of anger among lib lawyers and some other libs who aren’t lawyers over this, but it’s surprisingly difficult to figure out why.
One of the few prerogatives Congress has left (especially the Senate) is to refuse to confirm Presidential appointees until some Senator is happy. In any event, for as virulent and persistent as it has been, the anger over Merrick Garland is not very well thought through.
I suspect that in the end, the real answer has to do with the libs’ disdain for us. Specifically, it wasn’t until the Presidency of Donald Trump that it became apparent for me how painful it is for libs to actually have a good-faith arms-length conversation about their political/cultural intentions with someone on the Right.
In libs’ mind, they might win or they might lose over this or that but either way they never have to talk to us. With Donald Trump as POTUS, this attitude is at the same time more painful and less tenable for libs. Specifically, that libs are faced with a painful choice: that they are either forced to concede the legitimacy of the Right in ways which are painful for them, or they have allow the ship of state to sail on by past them, and confront the reality that such a thing is possible in way they didn’t believe before.
Frankly, I’m not sure what libs are supposed to do here. The only thing I can guarantee is a bad idea is what they’re hoping for: put the libs back in power so they don’t have to deal with it.Report
@koz If you’re talking about yourself when you say someone, I think part of the problem is that you do not now convey and have never on this site conveyed “good faith arms length” when you talk to or about libs.
Sometimes you veer closer to that than other times, but you veer very far away from it with alacrity, regularly, and have done for almost a decade now.
To take myself as an example, I talk, happily, to Republicans every week – not just some of my friends, but some of my family are Republicans, and very conservative in their views – and they’re infinitely easier to talk to than you are. Heck, I have argued with random strangers I’d never come across before on the internet that are easier to talk to than you are.
I’m not saying this to attack you, I swear. I just… you seem like you don’t even see how much you, personally, come across as someone who thinks so very little of the people you are talking to that it’s not worth trying to talk to you in good faith. Extrapolating about libs based on your personal experiences interacting with them is thus not very reliable as a method.Report
No. If I meant that libs won’t talk to me when I wrote that libs won’t talk to any conservative, then the problem is very likely about me, just like you said.
I was thinking about the confluence of a few things, where it’s become clear our existence as Republicans/conservatives/moderates “forces” libs to be the sort of people they don’t want to be. I’m guessing this is what’s underlying libs maneuvering themselves so as avoid any kind of meaningful engagement with our side.
As far as the particular events goes, I’m thinking of the badgering of Kristen Nielsen and Sarah Huckabee Sanders at restaurants, the followup from Maxine Waters. There’s also the increasing prominence of abolishing ICE and packing the Supreme Court among the activist Left, and the business about Merrick Garland I mentioned above.
And just yesterday or the day before there was a twitter drama where a reasonably prominent actor/director (who I didn’t heretofore know about) stirred up the mob when he said some mildly nice things about Ben Shapiro, without making any ideological concessions at all let’s note.
I suspect that a substantial part of the problem here is that libs have a substantial amount of anxiety against the possibility of being told “no” by a person or group of people they could barely stand to talk to in the first place.Report
Lucy and the football combined with a Pro Football team losing to the HS team.
They were THIS CLOSE to winning the entire game. Turning the 5-4 court into a 4-5 court. The prize was inside their grasp. And it should have been a coronation, with the back up plan also being a coronation, and the back up plan to the back up plan also being a coronation.
And then they proceeded to lose all of them. Rather than engage in battles the Dems would have eventually won, McConnell refused to engage by quoting their own Vice President at them, and he suffered no political consequences for this either from The Chosen One or from the American People. Then HRC lost to Trump, that was Mike Tyson losing to a circus clown. And then, having just gotten rid of the filibuster for judges, the GOP extended that new Dem rule to Supremes.
At every point they should have won, and despite them feeling they had the better team and the better argument, they lost.
High School teams don’t defeat Professional teams without serious cheating, ergo the GOP cheated. It doesn’t matter what the rules are, it doesn’t matter what the facts are, deep down they feel that they were cheated of a victory they’d earned. They can’t possibly have been outplayed, or rejected as being unpopular, the GOP must have cheated.
And Trump is in the news EVERYDAY rubbing salt in their wounds. So Trump can’t be a circus clown, he has to be Hitler. Society’s entire existence is at stake. The alternative to believing that is not only did they lose fairly but they deserved to.Report
In related news, an old 2017 538 post reports that the Congressional map is deeply biased against the Democratic Party. Talk of counter-majoritarianism might sound noble but is been less than happy in actual practice. It always seems to protect the powerful and the high status over everybody else. The Republican political establishment has ceased to be good faith negotiators and seem intent on using every permissible trick to maintain power and their lucre.
By 2040, nearly 70 percent of the population is going to live in 15 states. That means the disappropriated Senate is going to get even more out of whack with democratic norms. A merely third of the population will elect over half the Senate because Article V makes altering Senate appropriation an impossibility. Please.Report
No no no. It’s not the Republicans who are agitating on behalf of abolish ICE and packing the Supreme Court, together with politically motivated street violence.
Libs like to think that as long as Stephen Miller or Sarah Huckabee Sanders isn’t actually shot dead by Left activists, that their own malevolence is either insignificant or irrelevant. But that’s not so. It affects how we are treated among libs, and therefore how we adapt in return.
To really turn over the rock of how libs really perceive us and intend to behave toward us given the absence of important constraints which are at least presently in force, I don’t think that’s a rock that their conservatives or libs are looking forward to turning over, to be honest. But right now I don’t think we really have a choice.Report
To be fair, we’ll see whether the Dems chase that court packing idea the next time they have power (probably in 6 years).
But if they take it to 11 then they have no cause for complaint if the GOP takes it to 20 the next time the pendulum swings. And we’ll be several massive steps towards becoming a banana republic.Report
The problem with court packing (or abolishing ICE) isn’t policy, it’s an indication of where they’re heads are at.
Libs are motivated to go to a place inside their own heads where there are no conservatives or any opposing viewpoints really. This has problems in its own right. But what’s worse is that libs actually want to think this is the real world, or at least can be the real world if they can catch a couple breaks in the polls.
Frankly, relative to where we are right now, we’d be a lot better off if the libs were antagonized to us based on who we really are instead of their cartoon villain fantasy of us.Report
Four Supremes saying the grandchild of a racist can still be considered a racist if it empowers the gov to fight *ism says where their heads are at.
Some attention seeker on the media somewhere making some statement does not.Report
I’d like to sympathize with you on this point but unfortunately I don’t. In particular I don’t think you’re getting the relevance of things like court-packing, etc.
The deal with Shelby County was the SCOTUS libs defending the status quo using the institutional power that was available for them at the time. Unfortunately for them, it didn’t work. We have some institutional power on the SCOTUS as well, and in that circumstance we outvoted them.
What court-packing is, above all else, is an attempt at an end run around the legitimacy of our institutions, because they can’t abide by that legitimacy if we get to participate in them.
That is a big deal above and beyond whether or not court-packing actually comes into reality, which most likely it won’t.Report
“The Republicans are merely gerrymandering, vote suppressing, and judicial activating; the Democrats are exercising their freedom of speech!”Report
Heh. I had to track the link to see which comment of mine you were responding to. Suffice to say I wrote nothing remotely like what you have attributed to me inside quotemarks.Report
I expected lively discussion over this post and I must say you folks never disappoint me. We’ve relitigated The VRA, the Bork nomination and even the French parliamentary system. Well done everyone!Report
Damon Linker explains why GOP minority rule is so corrosive.Report
Some of Linker’s premises are true enough, but his conclusions are exactly backwards.
First of all, the business about “minority government” isn’t likely to last indefinitely and isn’t guaranteed to help Republicans. But in addition, as things stand it’s much more important for libs to demonstrate solidarity with America by not complaining about the sort of thing that Linker is complaining about. Ie, libs need to show that they are team players, which is absolutely not a given in the current circumstance.Report
Strip out the partisan spin and you have;
1) The Dems are popular in dense urban areas and unpopular in spread out areas, the House is structured so that’s a problem.
2) 2012 was (carefully cherry picked to be) right after the census so it’s peak effectiveness for Gerrymandering.
3) Trump isn’t humble.Report